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Woman contingency temporarily reside during place of filing wail – Jurisdiction in Domestic Violence

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

Criminal Revision Application No. 146 of 2017

Applicants : 1) Prashant son of Manmohanji Laddha, aged about 36 years, Occ: Business

2) Smt Leelabai wd/o Manmohanji Laddha, aged Major, Occ: Household
Both residents of In front of Mayor’s Bungalow,University Road, Amravati

Versus

Respondents: 1) Sau Madhuri w/o Prashant Laddha, aged about 34 years, Occ: Household

2) Ku Vidhi d/o Prashant Laddha, aged about 9 years, Occ: Student

3) Ku Ekta d/o Prashant Laddha, aged about 3 years, Student Respondents no. 2 and 3 being minor, by respondent no. 1 healthy guardian-mother All residents of c/o Shri Satyanarayan Champalal Taori, Near Hotel Harmony, Gandhibag, Nagpur At present, c/o Suresh Madhukar Rathi, Hardware Shop, Main Road, Ward No. 9, Saunsar, District Chindwara, MP

Shri R. D. Wakode, Advocate for applicants
Shri B. N. Mohta, Advocate for respondents

Coram : S. B. Shukre, J Dated : 6th Apr 2018 Oral Judgment

1. Heard schooled warn for a parties. Admit. Heard forthwith by agree of parties.

2. This rider focus questions a legality and exactness of a sequence antiquated 27.10.2016 upheld by a schooled Principal District Judge, Nagpur in Criminal Appeal No. 297 of 2015, upsetting a sequence antiquated 28.10.2014 upheld by a schooled Judicial Magistrate, FC, Nagpur in Misc. Criminal Application No. 3538 of 2014. The schooled Magistrate has hold that a Court during Nagpur has no office to try a petition underneath Section 12 of a Protection of Women from Domestic Violence Act, 2005 (for short, a “D.V. Act”).

3. Shri Wakode, schooled warn for a field submits that a impugned sequence is seemingly bootleg and impolite and given Shri Mohta, schooled warn for a respondents submits that it is ideally authorised and proper. Shri Mohta submits that in any case, a schooled Magistrate could not have discharged a petition on a rough objection, yet giving any event to a parties to lead evidence. In support, he places his faith on a cases of Vijay Sudhakar Patil v. Asha Vijay Patil reported in 2015 (1) Mh. L. J. 431; Ramesh a/o Mohanlal Bhgutada, Advocate & anr v. State of Maharashtra reported in 2011 (6) Mh. L. J. 167 and Vikas Rastogee v. State of U. P. & anr reported in II (2014) DMC 470 (All).

4. The schooled Magistrate while permitting a focus vide sequence antiquated 28.10.2015 has given elaborate reasons to support a anticipating about a non-maintainability of a petition underneath a D. V. Act while holding that he had no territorial office to try a petition underneath Section 12 of a D.V. Act. Learned Magistrate has taken into care a admissions given by a non-applicant no. 1 in her focus filed underneath Section 125 Cr. P. C. (Criminal Application No. 62 of 2014) before a Court during Saunsar, a admissions given by a non-applicant no. 1 in a First Information Report lodged by her opposite a field on 8.12.2014 during Police Station, Saunsar and a other contribution that are matter of record and not in dispute. These contribution uncover that non- applicant no. 1 has certified usually about one month before filing of a focus on 20.10.2014 and also dual months afterward that she has been staying during her parental place during Saunsar given Aug 2014.

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5. Learned Magistrate has also remarkable a fact that nonetheless non- applicant no. 1 showed her chateau in Section 12 of a D. V. Act petition as c/o Shri Satyanarayan Champalal Taori, nearby Hotel Harmony, Gandhibag, Nagpur, she did not record even an confirmation of Satyanarayan Taori to uncover that she is a proxy proprietor of Nagpur. In a focus underneath Section 12 of a D.V. Act, there is usually a flitting anxiety done by a respondent that she along with her children has been staying currently during Nagpur in a chateau of her hermit on a chateau mentioned in a means title. This focus has been filed on 20.10.2014. But, usually a month before, she filed focus underneath Section 125 Cr. P. C. before a Saunsar Court wherein she asserted that she was staying during Saunsar given Aug 2014. Even in a First Information Report that was lodged by her on 8.12.2014, about one and half months after Section 12 D. V. Act focus during Police Station, Saunsar, a non- applicant no. 1 settled that she has been staying during Saunsar. Not usually this, yet in her justification accessible in a record underneath Section 125 Cr. P. C. before a Saunsar Court successive to a filing of a benefaction focus also, a non-applicant no. 1 certified that she was staying during Saunsar. In a backdrop of these admissions, it was required for a non-applicant no. 1 to have simplified as to when did she leave Saunsar and come to Nagpur for staying during Nagpur temporarily. She also indispensable to have settled a applicable dates in this regard. If some of a admissions pertained to a duration that was after filing of this application, an confirmation of brother, giving applicable sum placed on record by a applicant would have left a prolonged approach to explain her mount in a matter. But, she did not record on record a confirmation of her hermit Satyanarayan Taori.

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6. Learned warn for a non-applicants submits that a non- applicant no. 1 was never called on to lead any justification in this regard. we contingency say, zero prevented non-applicant to during slightest record on record an confirmation giving her explanation/clarification in a matter. It is not adequate for non-applicant no. 1 to usually make a bald statement, as she has in her application, that presently, she has been staying during Nagpur in a chateau of her hermit when she admits in other record that she resides during Saunsar. She could have increased her matter of her Nagpur chateau by something applicable or during slightest an confirmation of Satyanarayan Taori. But, she did not contention any such additional element or confirmation before a Court. These contribution have been duly taken note of by schooled Magistrate when he upheld a sequence dismissing focus underneath Section 12 of a D. V. Act.

7. But these facts, applicable as they are, have been totally abandoned by a schooled Principal District Judge. The schooled Principal District Judge has also not deliberate a reasons given by a schooled Magistrate in a sequence upheld by her. It is a requirement of Section 27 of a D. V. Act that in sequence to consult territorial office on a Judicial Magistrate, First Class, there has to be during slightest a proxy chateau within a territorial office of his Court. The admissions given by non-applicant no. 1 could uncover that she was all a while staying during Saunsar and joined with that fact, she has unsuccessful to explain as to how and in what manner, she insincere her proxy chateau during Nagpur. The schooled Principal District Judge, however, reasoned that posterior of some cases during Nagpur itself amounted to proxy chateau during Nagpur, that is fallacious to contend a least. Pursuing of some cases from a place can't be alike with proxy chateau during that place. Temporary chateau requires chateau during a place on stability basement in office of some activity or wish or need that might be economic, educational, financial, cultural, amicable and a like that comes to an finish when a idea or purpose is achieved. The duration or such chateau would change depending on a purpose for that it is taken. But, such chateau can't be a chateau total usually to consult territorial office on a Magistrate of a place or otherwise, it would be easy for a lady good versed with resources to go to a distant divided place, set adult a proxy chateau there usually to record a box and record a box to get a pleasure of saying father or chairman in domestic attribute being put to travails of prolonged travels and high expenses. So, to my mind, in a context of Section 27 of a D. V. Act, proxy chateau means a chateau set adult or acquired in a typical march of tellurian affairs and is not a chateau set adult with an goal to record a box and consult office on a magistrate. This is a meaning, seemingly and naturally, conveyed by total reading of pivotal difference used in Section 27 of a D. V. Act, that are “resides or carries on business or is emloyed”.

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8. In a cases relied on by schooled warn for a non- applicants, it has been hold that a rough conflict per miss of territorial office can't be motionless unless a parties are called on to place on record evidence. There can be no doubt about a element enunciated by these cases. But, this is not a box wherein a schooled Magistrate has discharged a focus yet there being on record valid facts. Ultimately, explanation of contribution is all that matters and contribution can be valid by admissions, usually as they can be by verbal evidence. Here, contribution stood valid since of admissions, yet there was no verbal justification led by a parties. It appears to me that not tendering of verbal justification was a choice of a parties. Learned Magistrate has also remarkable a fact that a non-applicant no. 1 did not contention any confirmation of her hermit in support of her explain that she was temporarily staying during Nagpur, thereby indicating an event already accessible was squandered by her. Therefore, we do not consider that any assistance could be sought by a schooled warn for a respondents from a cases cited before me.
9. In a contribution and resources remarkable above, we am of a perspective that a impugned sequence is manifestly bootleg and impolite and a sequence of a schooled Magistrate is authorised and scold job for no division therein.

10. In a result, a focus is allowed. The impugned sequence is quashed and set aside and a sequence of schooled Magistrate is confirmed. Liberty is, however, postulated to record uninformed focus underneath Section 12 of a D. V. Act before a scold forum.

S . B. Shukre, J joshi

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