IN THE HIGH COURT OF ORISSA, CUTTACK
TRPCRL NO. 20 of 2016
An application seeking transfer of Misc. Case No. 3 of 2016 from
the Court of S.D.J.M., Phulbani to the Court of S.D.J.M.,Berhampur.
Rabindra Nath Sahu & Another ……… Petitioners
Smt. Susila Sahu ……… Opp. party
For Petitioner: – Mr. Ashok Das
For Opp. Party: – Miss Deepali Mohapatra
P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO
Date of Argument and Order- 14.09.2016
S. K. Sahoo, J.
Mother’s love is divine. It is unselfish and unending. It flows gently but unrelentingly like the holy water of Ganges. Mother is the root which takes all the pain in growing the child plant and feeds him right from the womb. She is the truest friend who gives support to her child in every situation. She takes food only after her child eats satisfactorily; she sleeps only when her child sleeps comfortably. What a tragedy when a widow mother in the twilight of her life is compelled to leave the house by none else than her son and daughter-in-law?
The petitioners are the son and daughter-in-law of the opposite party.
The opposite party filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereafter ‘2005 Act’) in the Court of S.D.J.M., Phulbani against the petitioners seeking reliefs under the Act which was registered as Misc. Case No.3 of 2016.
It is the case of the opposite party that the petitioners subjected her to physical and mental cruelty and drove her out of the house for which she was constrained to take shelter in the house of her elder daughter Santoshi Kumari Sahoo at Nadikhanda Sahi, Phulbani.
This application under section 407 of Cr.P.C. has been filed by the petitioners seeking for transfer of Misc. Case No.3 of 2016 pending in the Court of S.D.J.M., Phulbani to the Court of S.D.J.M., Berhampur.
Heard Mr. Ashok Das, learned counsel for the petitioners and Miss Deepali Mohapatra, learned counsel for the opposite party.
Learned counsel for the petitioners contended that the ancestral house of the opposite party is at Berhampur and now she is also staying at Berhampur and she had earlier instituted two cases against the petitioner no.1 at Berhampur and therefore, the S.D.J.M. Court at Phulbani has no jurisdiction to entertain the application under section 12 of 2005 Act filed by the opposite party and therefore, the case should be transferred to the Court of learned S.D.J.M., Berhampur.
Learned counsel for the opposite party on the other hand contended that in the application itself, in column no.3, it is mentioned that the opposite party is now residing in the house of her elder daughter namely, Santoshi Kumari Sahu at Phulbani and that her present address is at Nadikhanda Sahi, Phulbani and therefore, the Court of S.D.J.M., Phulbani has got jurisdiction to entertain the application.
Section 27 of the 2005 Act deals with the jurisdiction of the competent Court to pass necessary orders under the Act and also to try the offences under the Act.
Section 27 of 2005 Act reads as follows:-
“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.”
Thus in view of section 27, if the ‘aggrieved person’ either permanently or temporarily resides at a place, the Court of Judicial Magistrate of the First Class within the local limits whose jurisdiction such place situates is competent to entertain an application under Section 12 of 2005 Act and to grant protection order and other orders under the Act or try the offences under the Act.
The legislature in its wisdom has provided that jurisdiction can be invoked by an ‘aggrieved person’ before the competent Court on the basis of temporary residence. The word “temporarily” means lasting, existing, serving for a time only which is not permanent. A temporary residence is a temporary dwelling place of the aggrieved person who has for the time being decided to make that place as her home. An aggrieved person who has lost her matrimonial home due to domestic violence and was not even allowed to stay at her ancestral house or at her father’s place for some reason or the other and is compelled to take residence, though temporarily, either with one of her relatives or with one of her friends at a place where the domestic violence was not committed can invoke the jurisdiction of the Magistrate within whose local limits such place of temporary residence situates. The temporary residence includes a place where the aggrieved person was compelled to reside in view of commission of domestic violence. She may not have decided to reside there permanently or for a considerable length of time but for the time being. A place where the aggrieved person has gone on a casual visit, a lodge or hostel or a guest house or an inn where she stays for a short period or a residence at a place simply for the purpose of filing a case against another person cannot be a place which would satisfy the term
“temporarily resides” as appears in section 27. The legislature
has provided the aggrieved women who are financially,
economically or physically abused wide options to institute a
case which best suited their convenience, comfort and
accessibility. Section 2(i) of 2005 Act indicates “Magistrate”
means the Judicial Magistrate of the First Class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area were the aggrieved person resides temporarily or otherwise or the respondents resides or the domestic violence is alleged to have taken place. Thus even if for a temporary period of time, an aggrieved person is residing at a place, she can seek reliefs under the 2005 Act by filing an appropriate application before the competent Court within the local limits whose jurisdiction such place situates.
Since in the application under Section 12 of the 2005 Act, the opposite party who is the aggrieved person has mentioned her present address as Nadikhanda Sahi, Phulbani where she is staying in her elder daughter’s house being subjected to domestic violence, the application is maintainable in the Court of S.D.J.M., Phulbani, Even though the learned counsel for the petitioners disputes the temporary abode of the opposite party at Nadikhanda Sahi, Phulbani, I am of the opinion that in this application under section 407 Cr.P.C., such disputed facts cannot be adjudicated.
Thus the contentions raised by the learned counsel for the petitioners being devoid of merits, the TRPCRL application stands dismissed.
The learned Magistrate shall make every endeavour to dispose of Misc. Case No.3 of 2016 within a period of sixty days from the date of receipt of the order of this Court.
A copy of the order be sent to the learned S.D.J.M., Phulbani for compliance.
S. K. Sahoo, J.
Orissa High Court, Cuttack The 14th September, 2016