Present: Sk. Md.

Arif Hasan Judicial Magistrate 5th Court , Bankura

Misc 24/13
05/01/2015
Today is fixed for further hearing and order.
Heard in full. Considered.
Perused the record.
It was a maintainability petition challenging my territorial jurisdiction to try this case.
This application raised an important question of law: if a wife whose both paternal and
matrimonial house is somewhere else, could maintain an action under Domestic
Violence Act, 2005(herein after called as DV Act) in a Court under whose jurisdiction
none of the houses, aforesaid, is situated?
Let me give a brief description about why Mrs. Puspa Akhireddy, the petitioner, came
to this Court. She is, no doubt, the lawful spouse of Suryanarayan Akhireddy, the
respondent no. 1. They are married about 20 years. They have two issues also. The
elder is female and the youngest is male. The daughter is 13 now and the son is 10.
Mr. Akhireddy is an employee of Indian Railways. He is originally from Chandrakona
Road of P.S Garbeta. The parents of Mrs. Akhireaddy are from somewhere in
Hydrabad. [See, the legal notice dt. 02-05-2012 filed by the respondents]. Her brother
resides somewhere in Dhanbad of Jharkhand. [See, the 161 Statement of Lilaboti Rao,
Puspas mother given in Garbeta P.S case no. 67/10 dt. 30-04-2010 and the copy of
which was filed by the respondents]. If her story is correct, Mr. Akhireaddys conduct
was altogether deplorable and she is well justified in bringing their family affairs upto
a criminal court. She was deplorably tortured, even though mostly psychologically,
but was tortured for additional dowry demand. This is her claim. Finally, she was
turned out by her husband. So, she sought for relieves under DV Act, especially
residence, protection and monetary relieves.
Coming now to the maintainability issue raised by the defence, what is that? It is only
that Puspa in fact resides at Adra of District Purulia with her brother, who is also a
Railway employee, and her mother and hence, the courts of Bankura do not have
territorial jurisdiction to try this case. They also filed few documents viz a legal notice
sent by Puspa from Hydrabad, where her paternal house is situated. They also filed
the copies of Garbeta P.S case no. 67/10 dt. 30-04-2010 about which I referred to
above. The claim that Puspa resides at Adra, no doubt, is a question of fact which I
could not decide without extensive trial. I have, however, been referred to the aforesaid
documents, one of which suggests that as on 30-04-2010 Puspa was staying in
Dhanbad, her brothers residence of that time. [See, the FIR of Garbeta PS case
no.67/2010 dt. 30-04-2010]. The other suggests that sometime around 02-05-2012 she
was staying at Hydrabad. Referring this, Mr. Prabir Banerjee, Ld. Defence counsel
addressed that these documents suggest that she have been residing sometimes in
Hydrabad and sometimes in Dhanbad and therefore, she is not resident of any place
within jurisdiction of my court and therefore, the case not maintainable here.
I have no hesitation, however, in saying that I am not impressed with this argument.
Those documents by no stretch of imagination suggest that Puspa does not or could
not reside within my jurisdiction. It is quite possible that she is presently residing,
might be temporarily, at Sanbandha of P.S Bankura, which she claims to be her present
residence in her application. The report of Protection Officer, who is a public servant
as per DV Act, also supports her. It would be too much to conclude so early, when trial
is yet to come, that she told falsely that she resides within my jurisdiction.
The question is, therefore, if a petitioner could select a forum of a place where she
resides temporarily?
The answer, I think, is in section 27 of the DV Act. I would read the section, deleting
the words not necessary for this case:
27.Jurisdiction.-(1) The court of Judicial Magistrate of the first class
within the local limits of which
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(a) The persons 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.
So, what is the meaning of this word temporarily?
The Section 27 DV Act, no doubt, is quite similar to S. 20 of Civil Procedure Code.
The Superior Courts have decided the meaning of temporarily for S.20 CPC to mean
such residence where the plaintiff resided for a considerable period and have an
intention to stay there for a considerable period. But would the word temporarily
mean the same thing for the DV Act also?
I know if the languages of a statute are clear and unambiguous, it would not be right
to embark on detail analysis of legislative history for ascertaining its meaning. But,
the more I thought about the meaning of the word temporarily with reference to this
case, the more doubtful do I find its import. It appears to have a little extended
meaning than S.20 CPC. Take a hypothetical example for instance. Suppose a poor
orphan lady got married with someone having a transferable job. Now, if the husband
having lost interest in his wife indulged in an affair with another lady and in the course
of such things he got transferred to some distant place. Now, if he firstly take his wife
with him up to a halt somewhere in the middle of those two places and then turn her
out there; then, think of the situation of this destitute lady, who does not have a single
penny even for her survival. If the doors of justice should be shut down for such a
lady if she approach to any court situated around such halt? If I were to follow the
same meaning of temporarily as it has meaning in S.20 CPC, the situation would be
pretty deplorable, and it would be a mockery of justice if doors of justice are shut
down on the technical ground like territorial jurisdiction holding that her stay at the
halt is not satisfying the meaning of temporarily since she has no intention to stay
there for a considerable period and all that she wants is to legally compel her husband
to come and take her with him. I cannot think that the legislators intended to let such
destitute to die there binding hands of the court in the name of territorial jurisdiction.
So, the meaning of temporarily in S.27 DV Act is, I think, something else than the
meaning of temporarily of S.20 CPC.
So, exploring the history of enacting the DV Act is legitimate for ascertaining the
meaning of the word temporarily in S.27 DV Act.
Under the old law, as it existed until 60 years ago, the wives were treated more like a
piece of furniture than anything else. She had no right apart from those of her husband.
If anything was in her favour, it was that her husband could not sue her in trespass for
her stay in matrimonial home. Neither could he sue a piece of furniture. He could
bundle his old furniture out into the street and so he could his wife. The law did not
say him nay. If the husband turn her out, she has to go and find her lodging elsewhere.
If her parents are dead, she had to find someone else who would take her in out of pity
or charity and would give her some food. If she could not find any such philanthropic,
she had to wait on the layby for death to come in want of food and residence. She
could, however, maintain a suit for maintenance, but if she is left in any such halt like
the example I gave above, her plaint would be returned on the ground of territorial
jurisdiction. If she, however, brings the action in any court at her husbands place, yet
she needs someone who would give her credit for purchasing the adveloram court
fees. With the enactment of Cr. P.C, 1898 this necessity of court fees was relaxed, but
the other situations remained as it was. Cr. P.C of 1973 cured another mischief to some
extent, but that was in another perspective. Explanation to S.125 was added to stop
the husbands from frustrating the maintenance case by divorcing the wives pending
the case. But no care was taken by the legislators with regard to residence of the
destitute wives who are frequently being turned out by their husbands.
All that has changed now. She is no more a chattel of her husband. She, now, have as
much right as he to stay in her husbands house. The husband could no longer turn her
out, even though she does not have a title, in point of law, to the house. In short, she
now has a right of her own, no doubt derived from her husband, but still a right of her
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own to assert a residence right in her husbands house, no matter what her husband
says or do about it. This has only been started since last 10 yrs. In 1987, however, the
Supreme Court had thought of recognising the wives residence right. [See,B.R.
Meheta v. Amta Devi (1987) 4 SCC 183]. But, since thereafter it was silent till 2005,
when their Lordship exercise its power under article 141 & 142 of the Constitution
and expressly recognized the residence right of the wives of this land. [See, B.P
Achala Anand v. Appi Reddy AIR 2005 SC 986]. After that the legislatures wake up
from their sleep and started thinking about the residence right and other rights of the
domestically violated ladies of this land and, therefore, enacted the DV Act. This
being the history behind enacting the DV Act, I have no doubt, that it is a beneficial
legislation intended to give rays of justice to the destitute ladies who had been
deplorably oppressed for long and to protect them from not having a roof over their
heads. I cannot, therefore, accept the meaning of temporarily in S.27 DV Act to be
the same as its meaning in S.20 CPC; otherwise the destitute ladies in the situation of
the example aforesaid would be deprived of justice and would be left to die at such
unknown places where they might be abandoned by their unscrupulous husbands.
Accepting the same meaning of the word temporarily for both S.27 DV Act and S.20
CPC would be impliedly allowing any such unscrupulous husband, like the husband
of the example aforesaid, to take the benefit of his own wrong and would become an
open door for such husbands to frustrate the very object of the DV Act by tactfully
turning their wives out after taking them to somewhere else. I think, the word
temporarily in S.27 DV Act has a much extended meaning so as to cover the lady
also about whom I told in the hypothetical example given above. The word
temporarily, so far I could apprehend, would mean such shortest period of time for
which a lady stays at any place under compulsion or otherwise, but would exclude
such short term intentional stays at a place only and only for bringing an action under
DV Act in the courts situated there, so that her husband, who does not reside there,
could be harassed.
Returning back to this case, I do not think a destitute lady, who is in serious need of
maintenance and residence, would show such luxury that she would file a case in some
different district than the district where she is presently residing only for harassing her
husband and that even after 20 yrs of her marriage and when she have two minor
children and when she do not have any earning of her own, which the respondents
also does not dispute, at least in their maintainability petition. I do, therefore, hold that
Puspa, the petitioner, prima facie resides temporarily, within the meaning of S.27 DV
Act, at the address mentioned in her petition and which the protection officer also
supported in her report. Aside from all these, the issue regarding actual present
residence and jurisdiction being a mixed question of fact and law, the same cannot be
summarily decided as a preliminary issue before trial and the decision of the same
needs trial. I would, therefore, reject the maintainability petition, holding this case to
be quite maintainable in this court. Since, this case, which is required to be decided
within two months as per S.12 DV Act, has been delayed for filing of the
maintainability petition which has been filed even before filing the w/o, which is yet
to be filed by the respondents, I would award the petitioners with cost for delaying
this case purposely by filing this petition on the date fixed for filing w/o without filing
the same.
At the end of the day, I do, therefore,
ORDER
that, the maintainability petition dt. 11-04-2014 is rejected on contest and with cost of
500/-.
Fix 06-02-2015 for W/O as last chance & payment of cost.

Dictated & Corrected by me

(Sk. Md. Arif Hasan)

J.M., 5th Court , Bankura

(Sk. Md. Arif Hasan)

J.M., 5th Court , Bankura
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