IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2563/2014 Between:
K.L.Jayalakshmi, W/o Vijaya bhanu Prasad, Aged about 32 years, R/at No.11/2, Palace Cross Road, Vasantha Nagar, Bengaluru – 560052.
(By Smt.Hemalatha Mahishi, Advocate) And:
M.Vijaya Bhanu Prasad, S/o M.Ravi Prasad, Aged about 38 years, R/at House No.20, Inna Reddy Layout, Infantry Road, Bellary – 583104.
(By Sri S.P.Kulkarni, Advocate) … Petitioner ...Respondent This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the judgment dated 19.04.2014 in Crl.A.No.463/2013, on the file of the P.O. FTC-VI, Bengaluru and confirm the order dated 17.08.2013 passed by the MMTC-IV, Bengaluru in C.Misc. No.68/12 and etc., This Criminal Petition coming on for Admission this day, the Court made the following:
O R D E R This petition is filed under Section 482 of Cr.P.C. seeking to set-aside the judgment dated 19.04.2014 in Crl.A.No.463/2013 on the file of the City Fast Track (Sessions) Judge, Bengaluru City confirming the order dated 17.08.2013 passed by the IV Metropolitan Magistrate Traffic Court at Bengaluru in C.Misc.No.68/2012.
2. Heard the learned counsel for the petitioner.
Learned counsel for the respondent is absent. Perused the records.
3. The petitioner herein presented a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short) seeking protection order as well as compensation and maintenance. On entering appearance, the respondent disputed the jurisdiction of the trial Court on the ground that the petitioner is ordinarily residing in Challakere and not within the jurisdiction of Bengaluru Court.
4. The petitioner examined herself as PW-1 and filed her affidavit in lieu of examination in chief wherein, she asserted that after her marriage on 15.12.2005, she resided with the respondent in Bellary till 2010. Thereafter, he asked her to leave the matrimonial home and accordingly, she started residing in her grand parents house in Bengaluru. She has also stated that prior to her marriage, she was staying in her grand father’s house at Mr.T.Ajjappa Reddy’s Home i.e., at palace cross road, Vasanthanagar, Bengaluru and she was studying in Mount Carmel College, Bengaluru, Vasanthanagar for B.A Degree and M.A Degree in Bengaluru University and has produced her degree certificates.
5. To counter the said evidence, the respondent examined himself as R.W-1 and filed his affidavit, wherein he has asserted that after the marriage, he and the petitioner used to stay with his aged parents at Bellary. Frequently, the petitioner used to visit her parental house at Challakere. She is the permanent resident of Challakere, wherein she is running her business. On these grounds, the respondent sought to dismiss the petition for want of jurisdiction with the trial Court.
6. Considering the above evidence, by order dated 17.08.2013 the learned MMTC-IV, Bengaluru in C.Misc. No.68/12 has ruled that the petitioner was temporarily residing in Bengaluru as on the date of submission of the petition and accordingly, rejected the objection raised by the respondent regarding jurisdiction.
7. Being aggrieved by the said order, the respondent herein preferred an appeal before the City Fast Track (Sessions) Judge, Bengaluru City (F.T.C No.VI) and by order dated 19.04.2014, the learned Sessions Judge has allowed the appeal and has set-aside the order passed by the learned MMTC dated 17.08.2013 and consequently, the petition filed by the petitioner is held not maintainable.
8. I have heard the learned counsel for the petitioner and considered the grounds urged in the petition.
9. It is not in dispute that the marriage of the petitioner and the respondent was performed on 15.12.2005 at Basava Bhavana, Bellary.
10. Section 27 of the ‘Act’ deals with the jurisdiction of the Magistrate to try the offences under this Act. The Section reads as under:
“27. Jurisdiction: (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which -
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.”
A plain reading of the above provision makes it clear that a person in order to maintain a petition under the provision of the Act should be residing either permanently or temporarily within the territorial limits of the Court, whose jurisdiction is invoked.
11. The First Appellate Court has placed reliance on the decision of the Hon’ble Supreme Court in the case of Smt.Jeewanti Pandey vs. Kishan Chandra Pandey reported in AIR 1982 SC 3 and in the case of Bhagwan Dass and another vs. Kamal Abrol and others reported in AIR 2005 SC 2583 and has come to the conclusion that as on the date of the presentation of the petition, the petitioner was not a resident of Bengaluru. In Page No.18 of the impugned order, the learned First Appellate Court has held that in view of the ratio laid down in the above cited decisions, in its ordinary sense ‘residence’ is more or less of a permanent character. It is the place where a person has a fixed home or abode and on this premise, the First Appellate Court has proceeded to hold that the petitioner has failed to prove that she was a permanent resident of Bengaluru.
12. In view of the explicit language contained in Section 27 of the ‘Act’, in my view, the reliance on the above decisions by the trial Court is misplaced. In Bhagwan Dass and another, the proceedings were initiated under the provisions of Essential Commodities Act. Respondent No.3 therein, namely, Hindustan Petroleum Corporation, a Government of India undertaking intended to open a retail outlet for distribution of Liquid Petroleum Gas (LPG) in Kangra town of the State of Himachal Pradesh. One of the criteria provided for grant of dealership was that the applicant should be an unemployed graduate, resident of Kangra District. In that context, the question arose for consideration of the Court was, whether the eligibility criterion of being the resident of Kangra District has to be construed to be a permanent or de facto residence or temporary or de jure residence? Considering the various authorities on the point, it was held therein that the dealer is required to be a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that place.
13. In Smt. Jeewanti Pandey Vs. Kishan Chandra Padey, the petition was filed under Section 12 of the Hindu Marriage Act alleging that the parties were residents of Village Bagyan while in fact at all material times both were found residing at Delhi. In that context, by interpreting the word “resides” as found in Section 19 of the Hindu Marriage Act, it was held as under;
“The word “residence” is a flexible one and has many shades of meaning but it must take its colour and content from the context in which it appears and cannot be read in isolation. It is capable of being understood in its ordinary sense of having one’s own dwelling permanently, as well as in its extended sense. In its ordinary sense “residence” is more or less of permanent character. The expression “resides” means to make an abode for a considerable time; to dwell permanently or for a length of time.”
14. In the instant case, Section 27 of the ‘Act’ in unambiguous terms provides that the petition under the provisions of the ‘Act’ can be maintained by the aggrieved person either at the place where he is permanently or temporarily residing. Abundant material has been placed by the petitioner to show that as on the date of presentation of the petition, the petitioner was residing in Bengaluru. The First Appellate Court has misconstrued and misapplied the Section 27 of the ‘Act’ in holding that the petition under Section 29 could be maintained only if the petitioner is able to establish a permanent residence within the limits of the Court of Magistrate at Bengaluru. The view taken by the First Appellate Court is contrary to Section 27 of the ‘Act’.
15. Consequently, the petition is allowed. The impugned judgment rendered by the City Fast Track (Sessions) Judge, Bengaluru City (F.T.C.No.VI) in Criminal Appeal No.463/2013 dated 19.04.2014 is set-aside. The order passed by the learned Magistrate in C.Mis.No.68/2012 dated 17.08.2013 is restored. The learned Magistrate shall proceed with the complaint in accordance with law.
In view of disposal of the main petition, I.A No.1/2014 also stands dismissed as it does not survive for consideration.
SD/-
JUDGE NBM/KG