CASE COMMENTARY ON:
MRS. XXX VS. MR. MAZHURUDDIN ALI KHAN AND ORS.
WRIT PETITION NO. 4184/2021- BOMBAY HIGH COURT
Writ
Petition no: 4184/2021.
Petitioner: Mrs. XXX
Respondent: Mr. Dr. Mazhuruddin Ali Khan.
Judgement
Delivered on: 06/12/2021.
Court:
Bombay High Court.
Delivered
by: Justice Sandeep K. Shinde.
Background of the case;
This
case was filed before the Hon’ble Bombay High Court under Section 12 of
Domestic violence Act for want of Jurisdiction under Section 27 of Domestic
violence Act by virtue of Article 227 of Indian Constitution read with Section
482 of Cr.P.C. Earlier on October 12, 2021 petitioner approached the magistrate
at Bandra invoking the Section 18 and 19 of Domestic violence Act. The
magistrate refused to grant the relief, later the petitioner approached the
Bombay High Court under Article 226 and Section 482 challenging the order of
magistrate Court.
Facts of the
case:
According
to the complaint filed by the petitioner, the couple got married at Hyderabad
in 1993. Soon after the marriage, the wife could not able to tolerate torture
and harassmentfrom her husband, and son. Due to the fear of threat to her life,
she moved to Mumbai on 27th September 2021 and resided in hostels as
guests which was not permanent residence. She used to reside in Hotel at Bombay
Kurla Complex as a guest. She came across many instances of being followed by
unknown strangers who are constantly watching her actions and even on one day
an unknown person took her photo at her husband’s instance and run away. Soon
after she realized that all her credit cards and bank accounts were hacked, she
filed a complaint on 7th October 2021. Later she filed a complaint
against her husband alleging that she was tortured, physically stalked and was
constantly watched by her husband.
She
filed a petitioner in the magistrate Court at Bandra on October 23, 2021
praying to grant restraining orders against her son and husband under Section
23(2) of domestic violence Act. The magistrate refused to grant relief and later
she approached the Bombay High Court under Article 226 and Section 482 for
quashingthe order of magistrate Court.
Issues involved in the case:
1. Whether temporary residence includes ‘casual visits’
under Section 27 of the domestic violence Act?
2. Whether the magistrate’s order was appropriate and
whether cause of action arose in Mumbai?
3. Whether the applicant’s petition is maintainable under
Section 27 of the domestic violence Act?
Petitioner’s contentions:
The
petitioner argued that ‘temporary residence’ in common language means ‘any
place for temporary shelter and hotels, lodge will come within the purview of
the definition of temporary residence under Section 27 of D.V Act and applicant
as resided in Mumbai has jurisdiction to file a complaint under Section 23(2)
read with Section 19 of D.V Act’. So, the order of the magistrate is to be
quashed and further order is to be granted to petitioner. Further the
petitioner cannot bear to live her husband and son due to their torture and She
cannot able to file a complaint in Hyderabad as her husband was very
influential.
It
was also argued that under Domestic violence Act any aggrieved party can file a
case within the local limits of the place of domestic violence or the residence
of respondents. The provision has been included with the intention that any
aggrieved party who has been deprived of her residence can file a complaint in
the place of temporary residence, where the domestic violence was not taken
place.
Respondent’s contentions:
The
respondents argued that there is sufficient evidence to show that the
petitioner was staying in hotel in Mumbai which is neither a permanent
residence nor temporary because she only visited as a guest for couple of days.
Therefore, the temporary residence must be continuing place of visit, in Mumbai
there is no cause of action will arise, the said application is contrary to the
provision of Section 27 of domestic violence Act.
Further
it was argued that as per the complaint filed against husband, the marriage
took place in the year 1993 and it was stated by her that she was in constant
domestic violence by her husband from the date of marriage. But she remained
silent till 2021, didn’t took any measures to protect herself from harassment
and after coming to Mumbai, till 23 days she didn’t file a complaint against
her husband. There is delay in filing the petition. The intention of the
petition is to harass other party and there is ill-will against the respondent
and said petition is to be dismissed and magistrate’s order is to be upheld.
Decision of the Court:
The
Hon’ble Court observed that on the facts submitted before the Court, it is
clear that the woman is educated and economically sound. After relying on the complaint,
it was held that she didn’t took any protection even though she was subjected
to torture or domestic violence neither filed a complaint at Hyderabad nor
forced her to leave the place of residence. By her will she resided in Mumbai
in a hotel for few days which is neither a place of employment nor temporary
residence.
The
Court interpreted that the word ‘temporary residence’ under Section 27 of D.V.
Act, which was observed in the case of ManmohanjhiLaddha
v. Sau Madhuri W/O Prasant Laddha (2018)1“it is a place
of residence at a place on continuing basis in pursuit of some activity or want
or need which may be economic, financial, cultural, social and the like which
comes to an end when the goal or purpose is to be achieved”.
The
Court relied upon the cases like Advocate Ramesh
Mohanlal Bhutada v. State of Maharashtra and Ors (2011)2in
which the Court distinguished the temporary residence and casual visits: It was
observed that the term ‘reside’ means to stay and with implied predetermination
of mind or with intention to stay at a place and not as a casual visit. The question
of determination of whether the party is said to be resided in temporary or
permanent place? Will be decided based upon the intention of the parties with
the reference to the facts and circumstances of each case.
The
Hon’ble Court opinioned that ‘the liberal approach of including temporary
residence within the ambit of Section 27 of the Act, 2005 then, it may be
liable to abuse the legal process as the person aggrieved may take unfair
advantage of the situation by changing the residence place to a place where the
other party could suffer from financial problems or in order to harass the
other party, he or she may choose a distant place as a place of casual visit’.
In other words, the term ‘reside’ may not include a place where a person stays
there merely for 1 or 2 visits. But it implies more than a normal visit with
the intention to stay at particular place more often.
In
this case the applicant visited Mumbai casually as a guest which was neither
temporary nor permanentresidence, therefore the order of the magistrate is
correct as per the circumstances of the case not on basis of either wrong or
non-existence of jurisdiction, but the temporary residence must be continuing
residence. Therefore, the petition was dismissed by the Court through the order
dated 06/12/2021.
Ratio decidendi of the case:
Domestic
violence complaints cannot be filed at a place of casual visits, it must be
instituted either in place of temporary or permanent residence of the
complainant. Temporary residence doesn’t include places of casual visits.
Temporary residence implies that residence which is necessary for the normal
conduct of human affairs with intention but not mere intention to reside in a
place only for the sake of initiating a suit before the magistrate.
Conclusion:
In
this case, the Court with caution settled the matter in which the places of
casual visits as ‘temporary places’ was not included with the scope of Section
27 of Domestic violence Act,that minimized the risk of abusing the legal
process by the aggrieved person. The Court also determined the situations in
which the temporary residential places are included with in the scope of
Section 27 of Domestic violence Act, 2005.
It
is now settled law that the aggrieved person can initiate any suit of domestic
violence from the place outside the jurisdiction of permanent residence that
helps the party to get justice from the place where the cause of action arises,
in turn minimizes the travel expenses and financial burdens whenever the Court
proceedings takes place.
Despite
of many legal provisions and legal enforcement agencies, the stigma of domestic
violence as a social evil is prevailing in our society. It can be reduced only
by through the collective realization of the minds of general public and in
many cases the instances of domestic violence by husband to his wife will get
unreported due to many factors like: Prestige of the family, lack of financial
and moral support by the parents, wife’s dependency on her husband etc. In this
way, the harmony of the family will get disturbed by the acts like domestic
violence that negatively impacts the tender minds of the children.
References:
1. ManmohanjhiLaddha v. Sau Madhuri W/O Prasant Laddha
(2018) ALL MR (Cri) 2971
2. Advocate Ramesh Mohanlal Bhutada v. State of
Maharashtra and Ors (2011)CRI.L.J 4074.
Submitted by
Vaishakh V Kulkarni,
3rd year B.A, LL. B (Hons.)
K.S.L. U’s Law School, Hubballi, Karnataka
Intern at Edge Law Partners, New Delhi.
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