MadrasHC: Wife who already filed DV can merrilly go another place &file fresh DV @ new abode!!. Old DV b transferred to new place, husband has to run to new place to appear / answer etc !!

MadrasHC: Wife who already filed one DV case can merrily go to another place & file a fresh DV case at the new abode!!…Then, the old DV case will be transferred to new place, husband has to run to new place to appear / answer etc !!

Concept of TEMPORARY residence of the wife is stressed amply in this case with a good number of other cases sited !!

Sec 177 CrPc NOT considered !!

My brief understanding
*****************************************
* Woman got married and lives at Thirunelveli (say place A, matrimonial town)
* Her native place was Trichy (say Place B , call it birth / hometown )
* Disputes arose, matri cases were filed (at Place A, Thirunelveli)
* One fine morning she left matrimonial home and went away
* Wife also filed a DV case at the same place (at Place A, Thirunelveli)
* Husband and MIL are questioned by District welfare officer, Thirnelveli (Place A)
* Now ablaa nari goes away to yet another place, Pudukkottai (Place C, new abode !!, says her dad works there)
* She files a new DV complaint at new place – Pudukkottai (place C)
* The saga starts at Pudukkottai (place C) and the case from place A is transferred to place C
* Husband runs to HC with a revision petition
* HC says WOMAN can go to new place & file fresh DV complaint from new abode. Old DV case to be transferred to new place!!

Dr.M.Patchi Rajan vs The Protection Officer on 13 December, 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/12/2012

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

CRL.R.C.(MD)No.412 of 2012

and

M.P.(MD) No.1 of 2012

1.Dr.M.Patchi rajan

2.Savithiri Devi … Petitioners

Vs

1.The Protection Officer,

District social Welfare Office,

Tirunelveli District,

Tirunelveli.

2.The Protection Officer,

District Social Welfare Office,

Pudukkottai District,

Pudukkottai.

3.Dr.S.Akila … Respondents

PRAYER

Criminal Revision Petition filed under Sections 397 read with and 401 of Cr.P.C., to call for the records pertaining to the order passed by the Judicial Magistrate, Pudukkottai, Pudukkottai District in Cr.M.P.No.5961 of 2012 vide his order dated 27.07.2012 and set aside the same.

!For Petitioner … Mr.R.Anand

^For Respondents … Mr.P.Kandasamy, G.A.

For R1 and R2

Mr.G.Prabhu Rajadurai for R3

:ORDER

The Petitioners have focussed the instant Criminal Revision Petition as against the order dated 27.07.2012 in Cr.M.P.No.5961 of 2012 passed by the Learned Judicial Magistrate, Pudukkottai, in taking on file the ‘Domestic Incident Report’ filed by the second Respondent/Protection Officer, Pudukkottai, based on the complaint of the third Respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

2.The Learned counsel for the Petitioners submits that the first Petitioner is the Husband and the second Petitioner is the Mother-in-Law of the third Respondent and that the third Respondent has filed a complaint before the first Respondent/Protection Officer, District Social Welfare Office, Tirunelveli and that the second Respondent is the Protection Officer, District Social Welfare Office, Pudukkottai and certain Officers under the Act have been notified by the State Government, so as to look into the grievances of the Women/Wives and it is the further submission of the Learned counsel for the Petitioners that Section 2(n) of the Protection of Women from Domestic Violence Act, 2005 speaks of ‘Protection Officer" and Section 8 of the Act refers to the appointment of Protection Officers to be appointed by the State Government in each District by means of notification just like investigation Officers and indeed he cannot exercise his jurisdiction beyond a particular District.

3.It is the plea of the Learned counsel for the Petitioners that particular District Officer alone has jurisdiction to entertain an application and Section 9(2) of the Act, enjoins that the Protection Officer shall be under the control and supervision of the Magistrate and he shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.

4.Advancing his argument, the Learned counsel for the Petitioners takes a stand that a complaint can be lodged in two matters viz., (i) a complaint straight away can be given to the Protection Officer and (ii) a complaint can be straight away given to the Judicial Magistrate concerned. Also, if a complaint is made under Section 4 of the Act, the Protection Officer will issue notice to the parties concerned and parties will appear before him and in fact, a Protection Officer like the Investigation Officer can investigate the matter and after examining the parties, he will prepare a report, which is called the ‘Domestic Incident Report’ as per Section 2(e) of the Act. The said report will be forwarded to the Judicial Magistrate of the area by the Protection Officer and that will be taken cognizance of by the Magistrate for proceeding further.

5.That apart, it is the contention of the Learned counsel for the Petitioners that the other mode is that an aggrieved woman straight away can prefer a complaint before the Judicial Magistrate concerned as per Section 12 of the Act, by presenting an application under Section 12(1)(3) of the Act and in the instant case on hand, the procedure, prohibited under Section 4 of the Act, has been followed. Furthermore, the third Respondent has lodged a complaint before the first Respondent/Protection Officer, Tirunelveli in October 2011 alleging that she has been subjected to the Domestic Violence Act. According to the first Respondent, the first Petitioner (Husband) and the second Petitioner (Mother in law) are responsible for that and that the incident has taken place on 05.06.2012. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6.As a result of the wedlock between the first Petitioner and the third Respondent (both being Doctors by profession), two children have been born and all lived together separately in an Apartment at Tirunelveli from the date of marriage. During the end of 2011, a misunderstanding has been arisen between the first Petitioner and the third Respondent, as a result of which, without giving information, the third Respondent (wife) has taken the children after locking the Apartment and has gone to ‘Apollo Scan Centre’ at Pudukkottai, where her father has been working. The third Respondent’s native place is Tiruchirappalli, where her parents home is situated. According to the first Petitioner, since her father has been working at the ‘Apollo Scan Centre’ at Pudukkottai, she has gone to Pudukkottai and at that relevant point of time, she was not available at Tirunelveli.

7.The Learned counsel for the Petitioners brings it to the notice of this Court that the first Petitioner/Husband filed H.M.O.P.No.38 of 2009 on the file of the Learned Additional Subordinate Judge, Tirunelveli and the same has been pending when the third Respondent has left Tirunelveli. Furthermore, on one fine morning, the Petitioners have been served with the summons by the first Respondent/Protection Officer, Tirunelveli in and by which, they have been directed to appear before him on 06.02.2012 at 11.00 a.m., in her office at Tirunelveli. Accordingly, the first and second Petitioners have appeared before the first Respondent and the third Respondent has also been present. The Petitioners also have been informed about the allegations against them and they have been required to submit their explanations in regard to the allegations pertaining to them. A detailed explanation in writing has been given to the first Respondent on 06.12.2012. At this stage, it is the plea of the Petitioners that the third Respondent has been examined orally by the Protection Officer in regard to the veracity of the allegations made. For nearly an hour, the Petitioners have been examined by the first Respondent/Protection Officer and the third Respondent has also been examined fully on that date. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8.The first Respondent/Protection Officer informed that she would prepare a report based on the allegations and counter allegations and the same would be forwarded to the concerned Judicial Magistrate, Tirunelveli. While, this being so, the second Respondent/Protection Officer of Pudukkottai District has issued another summons dated 19.03.2012, calling upon the Petitioners to appear before him on 26.03.2012. The third Respondent (Wife of the first Petitioner) has given a second complaint from Tiruchirappalli address and on receipt of the second summons, the Petitioners have been asked and on 23.03.2012, they sent a detailed representation in writing through registered post acknowledgment due to the second Respondent, making it clear that for the very same accusation, the Petitioners cannot be prosecuted again. Also, a stand has been taken on behalf of the Petitioners that the second Respondent has no jurisdiction to entertain the second complaint and has also prayed for dropping of all further proceedings. According to the Learned counsel for the Petitioners, the second Respondent/Protection Officer, without hearing the petitioners has prepared a ‘Domestic Incident Report’ dated 23.07.2012 and the same has been forwarded to the Learned Judicial Magistrate, Pudukkottai under Section 12 of the Act. The Learned Judicial Magistrate has taken cognizance of the same on 27.07.2012.

9.In the meanwhile, the third Respondent, even before the first Respondent submitting her report to the Court concerned, has sent a representation to the District Collector, Tirunelveli on 07.01.2012, whereby, she has made a request to transfer her complaint to the second Respondent/Protection Officer at Pudukkottai. The Learned counsel for the Petitioners brings it to the notice of this Court that the District Collector, Tirunelveli has passed orders on 13.01.2012, based on which, the first Respondent/Protection Officer has transferred the oral complaint of the third Respondent/Wife to the second Respondent/Protection Officer at Pudukkottai. At this stage, it is the strenuous plea of the Learned counsel for the Petitioners that the District Collector, Tirunelveli has usurped the power of Judicial Magistrate and thereby, directed the first Respondent/Protection Officer, Tirunelveli, to transfer the oral complaint of the third Respondent to the second Respondent/Protection Officer at Pudukkottai, whereby the filing of ‘Domestic Incident Report’ dated 23.07.2012 has come into existence. It transpires that in M.P.(MD) No.1 of 2012, in the main Revision Case, this Court has granted interim stay of the entire proceedings pending on the file of the Learned Judicial Magistrate, Pudukkottai in Cr.M.P.No.5961 of 2012.

10.The Learned counsel for the Petitioners primarily contends that the first Respondent/Protection Officer, Tirunelveli will be under the control of the Learned Judicial Magistrate concerned and he is not under the control of the District Collector for the purpose of the Act. Continuing further, the Learned counsel for the Petitioners brings it to the notice of this Court that every district, there is a separate Social Welfare Office and in the Office, a Senior Officer is nominated as Protection Officer and Rule 3 of the Protection of Women from Domestic Violence Rules, 2006 speaks of ”Qualification and experience of Protection Officer and Rule 4 speaks of ‘Information to Protection Officers’ and Rule 8 refers to the ‘Duties and Functions of the Protection Officers’. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11.The Learned counsel for the Petitioners submits that Rule 4(3) of the Protection of women from Domestic Violence Rules, 2006 is similar to Section 154(2) of Cr.P.C., viz., the Registration of F.I.R and Rule 5 refers to ‘Domestic Incident Reports’ and Section 9(2) of the Act says that the Protection Officer shall be under the control and supervision and shall perform the duties imposed on him by the Magistrate.

12.The gravamen of the attack made by the Learned counsel for the Petitioners is that the District Collector, Tirunelveli based on the order dated 13.01.2012, directing the first Respondent/Protection Officer to transfer the complaint of the third Respondent to the second Respondent/Protection Officer, based on which the original proceedings have been initiated and in fact, the original complaint of the third Respondent has not been dealt with in accordance with the Protection of Women from Domestic Violence Act, 2005. In effect, the contention of the Learned counsel for the Petitioners is that as per the version of the third Respondent/Wife, everything has been taken place at Tirunelveli viz., the marriage, they were living together at Tirunelveli, children born to them at Tirunelveli and separate stay at Tirunelveli and only after filing of H.M.O.P.No.38 of 2009 on the file of the Learned Additional Subordinate Judge, Tirunelveli, she has gone to Trichirappalli and joined her parents and she is not living with the first Petitioner and that the children are in her custody. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13.Also, the Learned counsel for the Petitioners draws the attention of this Court that Rule 3(4) of the Rules, refers to the State Government shall provide necessary office assistance to the Protection Officer for the efficient discharge of his or her functions under the Act and Rules.

14.It is the contention of the Learned counsel for the Petitioners that Section 28 of the Protection of Women from Domestic Violence Act, 2005 will apply that Section 28 refers to the application of Criminal Procedure Code and in this regard, Section 177 of Cr.P.C. refers to the place of enquiry of trial and in the present case on hand, the commission of alleged domestic violence has occurred within the jurisdiction of Tirunelveli and therefore, the Learned Judicial Magistrate, Pudukkottai has no jurisdiction to take cognizance of Cr.M.P.No.5961 of 2012 to his file.

15.The Learned counsel for the Petitioners cites a decision of Hon’ble Supreme Court in Manish Ratan and others Vs. State of M.P. And another reported in (2007) 1 Supreme Court Cases (Cri) 336, at 337, wherein, it is interallia held that "In view of S.177, which ordains that offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed, the offence in question must be inquired into and tried by Court at Jabalpur and not by Court at Datia where no part of cause of action arose". As such, the Petitioners contend that since even according to the third Respondent, everything has taken place at Tirunelveli, the Learned Judicial Magistrate, Pudukkottai ought not to have taken cognizance of Cr.M.P.No.5961 of 2012 to his file based on the Domestic Incident Report to the second Respondent. The occurrence at Tirunelveli cannot be taken cognizance of by the Learned Judicial Magistrate, Pudukkottai.

16.Apart from the above, the Learned counsel for the Petitioners bring it to the notice of this Court that after filing of the Domestic Incident Report by the second Respondent, a divorce decree dated 06.10.2012 has been granted in favour of the first Petitioner in H.M.O.P.No.38 of 2009 by the Learned Additional Subordinate Judge, Tirunelveli and a Civil Miscellaneous Appeal in C.M.A.No.33 of 2012 on the file of the District Court, Tirunelveli has been filed by the third Respondent/Wife against the divorce decree in H.M.O.P.No.38 of 2009 and as on date, the third Respondent cannot claim the status of Wife and she cannot call the first Petitioner as Husband and the second Petitioner is not her Mother-in-law. To put it succinctly, the submission of the Learned counsel for the Petitioners is that after the grant of divorce decree in H.M.O.P.No.38 of 2009, the status of Husband will not be there. As such, the grant of divorce decree in H.M.O.P.No.38 of 2009 can be taken note of by this Court as a subsequent development in the case in issue.

17.Another limb of the argument projected by the Learned counsel for the Petitioners is that an aggrieved person cannot be equated that the divorce woman or only an aggrieved woman can complained under Section 12 of the Protection of Women from Domestic Violence Act, 2005. In this connection, the Learned counsel for the Petitioners seeks in aid of the decision in Sunil Kumar Gupta Vs. Shalini Gupta 2012(4) Crimes 199 (Uttar), wherein, at 200, in paragraph Nos.8 and 9, it is interalia observed as follows:

"Furthermore, in the instant case, the status of Smt.Shalini Gupta is of a divorced wife. Now, no matrimonial relationship exists between the parties. Their marriage stood annulled. So, her status cannot be equated with that of an "aggrieved person" as envisaged in the provisions of Section 2(a) of the Act of 2005. In the decree of divorce, no mention was made by the learned Judge, either in the trial or in appeal, regarding the provision of residence of Smt. Shalini Gupta by her husband either by way of rent, as she was residing separately, or in the same shared household. All that was granted to her was the maintenance to the tune of rupees seven thousand per month, which includes all her expenses including the residence.

9.So, in view of the above, since Smt. Shalini Gupta, though had been in the domestic relationship with Sunil Gupta, but that relationship has been legally broken by a decree of annulment of marriage passed by a competent court having jurisdiction over the matter, which stands affirmed by this High Court, hence, the status of Smt. Shalini Gupta cannot be equated with a woman who has been in domestic relationship as envisaged in the definition provided under Section 2(a) of the Act of 2005. Therefore, she cannot be said to be an "aggrieved person" with the result that the right of alternative accommodation from her erstwhile husband, in the shared household or by way of rent for the same, is not available to her."

18.In sum and substance the submission of the Learned counsel for the Petitioners is that ‘a divorced woman’ will not be an aggrieved person. Furthermore, the Learned counsel for the Petitioners contends that the third Respondent is in custody of the children and she has secured a Government Job employed as Doctor at Thuraiyur during last month and if the third Respondent is desirous of settling the matter by way of maintenance being paid to her, the first Petitioner is ready and willing to settle the matter. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19.Per contra, the Learned counsel for the third Respondent/Wife submits that the Protection of Women from Domestic Violence Act, 2005 is a special Act and Section 2(f) of the said Act speaks of ‘Domestic Relationship’ and Section 3 of the Act provides for various types of omission or commission or conduct of a person, which constitute domestic violence and what the Act contemplates is some kinds of relationship that existence between the parties and Section 2(f) of the Act refers to the relationship between two persons, who live or have, at any point of time, lived together in a shared household, etc and the decision in Sunil Kumar Gupta Vs. Shalini Gupta 2012(4) Crimes 199 (Uttar), has not excluded the divorce persons and if divorce women are excluded, then many such persons would be excluded and indeed this Act help divorced women also and in any event, the said decision will not come to the aid of the Petitioners.

20.Expatiating his submissions, the Learned counsel for the third Respondent contends that an aggrieved person within the purview of the Act 43 of 2005 can initiate the commencement of proceedings and in regard to the jurisdictional aspect, Section 27 of the Act confers jurisdiction on the Learned Judicial Magistrate of First Class or the Metropolitan Magistrate of the local limits, can grant protection order and other orders under the Act and to try offences under this Act, based on (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 and the third Respondent cannot be allowed to run from pillar to post and even if she resides at a particular place, either transitorily or permanently or carries on business or his employed etc., the concerned area Jurisdictional Magistrate is competent to try the offence and pass appropriate protection order. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21.Added further, the third Respondent’s house is at Pudukkottai (temporary place of residence) and the same can be used by her to initiate cause of action and the role of the Protection Officer under the Act is to aid a person in distress and he must assist the person, who is in distress and as such, one need not go into the technicalities. In this connection, the Learned counsel for the third Respondent draws the attention of this Court to Section 57 of the Act, which refers to the duties of Police Officers, Service Providers and Judicial Magistrate and that the Learned Judicial Magistrate has a social duty as a whole and the Protection Officer to work under the Learned Judicial Magistrate. Also, the second Respondent/Protection Officer at Pudukkottai has to submit a report though the incident has taken place at Tirunelveli and in this regard, there is no question of jurisdiction and there is no illegality committed by the first Respondent/Protection Officer, Tirunelveli in forwarding the concerned papers to the second Respondent. Besides this, the purported intervention of the District Collector, Tirunelveli is not illegal because of the fact that the Collector has advised the first Respondent/Protection Officer to transmit the petition of the third Respondent to the second Respondent at Pudukkottai and in fact, the third Respondent has given an application to transmit her application, since she is residing with her parents at Pudukkottai and therefore, the District Collector, Tirunelveli has not acted suo motu, but advised the first Respondent/Protection Officer in this regard, only based on the request made by the third Respondent and all the more, the Collector of Tirunelveli District has a duty to comply with the legitimate request made by the third Respondent.

22.Yet another plea taken on behalf of the third Respondent is that the District Collector, Tirunelveli instructed to the first Respondent/Protection Officer to the transfer the petition of the third Respondent to the second Respondent will not make the matter as illegal one. As such, the Tirunelveli District Collector has rightly advised the first Respondent to transfer the complaint of the third Respondent to the second Respondent at Pudukkottai, since she has been residing at the temporary address of her parents at Pudukkottai. Only a formal application has been submitted by the third Respondent, while making a request to the District Collector, Tirunelveli, to transfer her petition/complaint from the file of the first Respondent/Protection Officer, Tirunelveli to the second Respondent/Protection Officer, Pudukkottai. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23.The Learned counsel for the third Respondent submits that as per Section 9(2) of the Act, the District Collector is the agent of the Government and by transferring the petition/complaint of the third Respondent from Tirunelveli to Pudukkottai, the Petitioners would not in any way be prejudiced and also that in Law, they do have all rights to defend the proceedings before the Learned Judicial Magistrate at Pudukkottai. Moreover, the Learned counsel for the third Respondent (Wife) contends that when the Learned Judicial Magistrate passed an order in Cr.M.P.No.5961 of 2012, it is only like a civil proceedings and also that the third Respondent has filed H.M.O.P.No.25 of 2012 for restitution of conjugal rights against the first Petitioner, in which an exparte decree has been passed and now, the first Petitioner has filed Interlocutory Application to set aside the same is now pending for a final determination.

24.In addition, as per Section 27 of the Act, the third Respondent is now temporarily residing along with her parents at Pudukkottai and as such, the Cr.M.P.No.5961 of 2012 taken cognizance by him on 27.07.2012 is not per se illegal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25.The Learned counsel for the third Respondent contends that the Father of the third Respondent has been employed temporarily in Apollo Scan at Pudukkottai and during that period, the third Respondent (Wife) has been at Trichy in her parents house and initially, she has chosen the Forum at Tirunelveli and later, she has been temporarily residing at Pudukkottai address with her parents.

26.Proceeding further, the Learned counsel for the third Respondent submits that the third Respondent is the only daughter to her parents and her father has been running Scan Centre (as Proprietor at Pudukkottai) and that the first Petitioner/Husband has filed a caveat petition at Pudukkottai and therefore, her temporary place of residence confers jurisdiction on the Learned Judicial Magistrate, Pudukkottai, to take cognizance of the matter. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27.Countering the submissions of the learned counsel for the third Respondent, the Learned counsel for the Petitioners submits that in this case, the third Respondent has given a letter to the first Respondent/Protection Officer, Tirunelveli on 14.02.2012, making a request to transfer her petition to Pudukkottai and even before her application, the District Collector of Tirunelveli has intervened in the matter on 13.01.2012 as mentioned by the first/Respondent Protection Officer and in his communication dated 29.02.2012, addressed to the second Respondent, wherein, the advice of the Collector has been mentioned and the intervention of Collector, is therefore not correct in the eye of Law.

28.It appears that the first Petitioner has sworn to a Caveat Affidavit on 28.02.2012 before the District Court, Tirunelveli in regard to the proposed Civil Miscellaneous Appeal to be filed by the third Respondent against the divorce decree in H.M.O.P.No.38 of 2009, granted by the Learned Additional Subordinate Judge, Tirunelveli. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

29.The Learned counsel for the third Respondent cites an order dated 22.04.2009 in Criminal Miscellaneous Transfer Petition No.03 of 2007 – Vijay Singh and Others of the Rajasthan High Court, wherein, it is interallia observed as thus:

"So far as the temporary residence of the respondent No.2 is concerned, she has elaborately stated in the complaint narrating the circumstances in which she has temporarily been residing at Bheem. It is reported that father of the respondent No.2 has been transferred from Bheem to Railmagra at a distance of 135 km. The mother of the respondent No.2 is continuously residing at Bheem and in the circumstances therefore, she has no option except to continue at Bheem. Since the allegation in the complaint is that she has been turned out from the matrimonial home, however, it has been stated that since her father has been posted to Mailmagra and therefore, her mother would also go to Railmagara and therefore, she has independent accommodation at Bheem where she is residing for some time. Be that as it may, Section 27 of the Act of 2005 confer jurisdiction even where a person is residing temporarily and therefore, in my view, it is not a fit case warranting transfer of case from Bheem to any other Court making the respondent No.2 lady who alleged to have been turned out to go and pursue her case. The transfer petition is therefore, dismissed. Stay petition also stands dismissed."

30.He also relies on the order dated 17.05.2012 in Crl.M.C.No.3083 of 2011 and Crl.M.A.10914 of 2011 of Delhi High Court in Shambhu Prasad Singh V. Manjari, wherein, in para 9 to 12, it is observed and laid down as follows:

"9. The basic objective in enacting the Act is to secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or any domestic relationship. Domestic violence, is, per se, not a criminal offence but is defined extensively and comprehensively to include various conditions. The woman exposed to such domestic violence is given the right to move to Court for any of the reliefs outlined in Section 12 through either a comprehensive proceeding, claiming maintenance, right to residence, compensation etc. or even move to Court seized of any other pending proceeding, such as divorce and maintenance etc. (Section 26). Section 17 has, for the first time, enacted a right to residence in favor of such women. The Act being a beneficial one, the Court should adopt a construction to its provisions which advances the parliamentary intention rather than confining it. If the latter course is adopted the result would be to defeat the object of the law. As noticed earlier, domestic violence is per se not an offence but its incidence or occurrence enables a woman to approach the Court for more than one relief. The Court is empowered to grant ex-parte relief and ensure its compliance, including by directing the police authorities to implement the order, particularly those relating to residence etc. If such an order is violated by the respondent (a term defined in the widest possible terms, to include female relatives of the husband or the male partner etc), such action would constitute a punishable offence, which can be tried in a summary manner under Section 31 of the Act.

10. In Ajay Kant (supra) the Madhya Pradesh High Court held, turning down a contention identical to that of the respondent (in this case) that:

"On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the service provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent/the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. Thus, at this stage if the report has not been called or has not been considered, it cannot be a ground for quashing the proceeding." http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

A similar view was taken by the Jharkhand High Court in Rakesh Sachdeva (supra):

"12. It would thus appear that the proviso to Section 12 would impose that before passing any order on an application of the aggrieved person, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer. The order contemplated in the proviso relates to the final orders, which the Magistrate, may pass under Section 18 of the Act. The Protection orders, which the Magistrate may pass under Section 18 of the Act, is only on being prima facie satisfied that the domestic violence has taken place or is likely to take place. The insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the enquiry under Section 12 of the Act. The contention of the petitioners that without considering the domestic incident report, the very initiation of the enquiry is bad, appears to be misconceived and therefore, not tenable."

11. After examining both the views, the Guwahati High Court in Md. Basit (supra) expressed a slightly different view:

"10. I partly agree and partly disagree with the views taken by the Hon"ble Madhya Pradesh High Court and Jharkhand High Court. In my considered opinion, Section 12 does not deal with passing of final orders. Final orders are passed under Sections 18,19, 20, 21 and 22 of the Act only. Sec. 12 is akin to Sec 200 of the Criminal Procedure Code, 1973. Section 12 only contemplates as to who can file a complaint, what reliefs can be sought for, what should be the contents of the complaint and how the complaint can be examined thereafter. If these preconditions are satisfied the court can take cognizance of the complaint, subject to making out a prima facie case on facts. Unlike Sec. 200 CrPC there is no requirement of recording preliminary statement of the aggrieved person, filing a complaint under Sec. 12 of the DV Act, for the purpose of taking cognizance thereof.

11. Under Section 12(1) of the DV Act, an application/complainant can be filed before a Magistrate either by an aggrieved person or by a Protection Officer or any other person on behalf of the aggrieved person. In this way, Section 12(1) does not contemplate that such an application should invariably be accompanied by a report from a Protection Officer. Proviso to Section 12(1) is in the nature of a rider, which mandates that the Magistrate shall consider any domestic incident report, if received by him either from a Protection Officer or Service Provider. I have already mentioned earlier that an application under Section 12 can be independently filed by an aggrieved person, which may not be accompanied by any report from a Protection Officer. However, if any report from a Protection Officer is available before the Magistrate that shall have to be taken into consideration, but, the law does not impose a precondition for the Magistrate to call for a report from the Protection Officer. On this point I differ with the view taken by Hon’ble M.P. High Court, wherein it has been held that it is not obligatory for the Magistrate to consider the report. With the same analogy, I also differ with the view taken by the Hon’ble Jharkhand High Court wherein, it has been held that "the insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the enquiry under Section 12 of the Act". http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. For aforesaid reasoning, I approve the view taken by the learned Sessions Judge that it is not obligatory for a Magistrate either to call for a report from a Protection Officer or a Service Provider at the stage of taking cognizance of the complaint. However, if any such report is available before the Magistrate, the same should be taken into consideration."

12. This court notices that Section 23 empowers the Magistrate to pass such ex- parte interim orders as he may deem just and proper, based only on the affidavit of the aggrieved person. Nowhere does this provision express or imply by necessary intendment that the consideration of the DIR is obligatory. Since an ex-parte interim order may be granted immediately upon institution of the complaint, it is likely that the Protection officer’s DIR may not be prepared by then. Thus, the Magistrate is definitely empowered to exercise this power, and pass interim order(s) against the concerned respondent. If this can be done without considering the DIR, then certainly notice to the respondent must also be allowed to be served without first considering the DIR."

31.The Learned Government Advocate (criminal side) appearing for the first and second Respondents submits that the District Collector, Tirunelveli has not done anything illegal in the subject matter in issue and in fact, he has advised the first Respondent/Protection Officer, Tirunelveli by letter dated 13.01.2012, to transfer the petition of the third Respondent although the application has been submitted by her on 14.02.2012 and in fact, the application is only a formal one.

32.The Learned Government Advocate (criminal side) appearing for the first and second Respondents vehemently contends that it cannot be said that the District Collector, Tirunelveli has usurped the power of the Learned Judicial Magistrate and really he has not decided controversies/issues in between the parties and as a District Head, he has advised the first Respondent/Protection Officer bonafide and it cannot be found fault with by the Petitioners. Moreover, the third Respondent in her application dated 14.02.2012 has given her address at Pudukkottai and in the said letter, she has clearly stated that she is presently residing with her parents (who are at pudukkottai), where her father is running ‘Apollo Scan Centre’. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33.According to the Learned Government Advocate (Criminal Side) as per Section 27 of the Act, even a temporary residence of an aggrieved person will confer jurisdiction on the part of the Learned Judicial Magistrate of the local area to take cognizance of the matter in issue. Also, as per Section 27(c) of the Act, if a cause of action has also arisen, that will also clothe the Magistrate concerned to entertain the matter and as such there is no illegality committed by the Learned Judicial Magistrate, Pudukkottai, in taking cognizance of the report of the second Respondent/Protection Officer, Pudukkottai on 27.07.2012.

34.It is to be borne in mind that Section 177 of Cr.P.C. speaks of an ordinary place of enquiry and trial. Generally, it is for the prosecution to establish that the concerned Court has jurisdiction. No wonder, the jurisdiction does not depend upon the attitude of parties. At this stage, this Court pertinently points out that the Rule prescribed under Section 177 of Cr.P.C is one of general application and will govern a criminal trial held under the provisions of the Criminal Procedure Code. Admittedly, Section 177 Cr.P.C has employed the term ‘ordinarily’. By and large, the territorial jurisdiction of a Court in regard to criminal offence would be decided on the basis of the place of occurrence of incident and not on the basis, where the complaint was filed or the F.I.R. was registered. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35.As far as the present case is concerned, the provisions of Protection of Women from Domestic Violence Act, 2005 is a special Act and the proceedings under this Act are basically civil in nature. In fact, there is no illegality, if a person directly approaches the Magistrate for taking cognizance in the matter in issue. It is for the Learned Judicial Magistrate concerned to take the help of the Protection Officer and Service Providers after receiving the complaint provided, he feels it necessary for final disposal of the dispute between the parties. If the parties concerned or the Magistrate takes the help of the Protection Officer, he will submit a ‘Domestic Incident Report’ to the Magistrate concerned as per decision in Milan Kumar Singh Vs. U.P., 2008(4) R.C.C. (Civil) 659 at p.661 (All)

36.Even the Judicial Magistrate of the First Class or the Metropolitan Magistrate as the case may be within the local limits of which the person aggrieved permanently or temporarily resides does also have territorial jurisdiction to deal with the matter as prescribed under Section 27(1) (a) of the Protection of Women from Domestic Violence Act, 2005, as per decision in Mony V. Leelamma, 2007(55) A.I.C.336 at p.339 (Ker.) : 2007(3) J.C.C.2113 (Ker.). Also Section 28 of the Act speaks of procedure viz., except otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973(2 of 1974).

37.Coming to the present facts on hand, even though the third Respondent has given her original complaint before the first Respondent/Protection Officer at Tirunelveli and her marriage has taken place at Tirunelveli and she has lived for some time at Tirunelveli and has also given birth to her children at that place, only at the behest of the District Collector, Tirunelveli advice and also based on the application dated 14.02.2012, wherein, she has given her Pudukkottai address and stated that she has been residing with her parents at Pudukkottai, the complaint/petition has been transferred to the second Respondent/Protection Officer at Pudukkottai, which is not per se illegal in the eye of law. The action of the District Collector cannot be found fault with, as he has not passed any judicial orders and also not usurped the powers of the Learned Judicial Magistrate concerned, as opined by this Court. As a matter of fact, he has only advised the first Respondent/Protection Officer in a proper manner and it cannot be forgotten that in the instant case, the third Respondent has given a letter of request on 14.02.2012, seeking transfer of her original petition from Tirunelveli to the file of the second Respondent/Protection Officer only based on the report of the second Respondent/Protection Officer, the Learned Judicial Magistrate has taken the cognizance of the matter. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

38.This Court, on the basis of the facts and circumstances encircling the present case does not find any impropriety or illegality in the order passed by the Learned Judicial Magistrate in taking cognizance of Cr.M.P.No.5961 of 2012 on file and directing the respondent to appear before him on 31.07.2012.

39.In this connection, this Court aptly points out that the words ‘Aggrieved Person’ is of ancient origin, appearing on the Statute Roll of 1363; "et outre le dit Roy voet que sinul se sent grevez, mette avant sa petition en ce Parlement et il en avera convenable respons". (vide 1 Cliff. 272). Furthermore, for the purpose of finding out the rights of appeal, any person, who is in any sense a party to a legal proceeding is "aggrieved" by a wrong decision with regard to the proceedings as per decision in Re Reed & Co., (1887) 19 QBD 174. That apart, the terms of ‘Aggrieved Person’ denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition as per decision Jasbhai Motibhai Desai V. Roshan Kumar, Haji Bashir Ahmen, A.I.R. 1976 SC 578 at special page 581.

40.Also that, this Court opines that since the divorce decree obtained by the first Petitioner/Husband in H.M.O.P.No.38 of 009, is now under challenge by the third Respondent/Wife (as an Aggrieved Person) in C.M.A.33 of 2012 and pending on the file of the District Court, Tirunelveli and also that the third Respondent/Wife has obtained a restitution of conjugal decree against the first Petitioner/Husband and all the more, when the first Petitioner has filed Interlocutory Application to set aside the same, these are all matters still wide open between the parties. Therefore, this Court has not expressed any opinion about the merits of the pending matters and it is for the parties to work out their remedies before the competent Forum at the appropriate stage. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

41.The reference made by the Learned counsel for the Petitioners that the third Respondent in her Form No.1 of the Domestic Incident Report has seen from Page No.22 of the typed set has given her present address at Trichy-20 and the first Petitioner’s address is at Palay, Tirunelveli and also the request made by her in page No.25 of the typed set to handover her Silk Sarees, Synthetic Sarees etc. and the address being mentioned as T3, Adura Arulagam Apartment at Palay, Tirunelveli, do pale into in significance or relegated to the background in view of the fact that Section 27(a) of the Act confers jurisdiction to the concerned Metropolitan Magistrate to take cognizance of the matter of an aggrieved person, who resides permanently or temporarily etc. and also the cause of action has arisen partly.

42.In the upshot of all the qualitative and quantitative discussions as stated supra and also taking note of the entire conspectus of the facts and circumstances of the case in an attendant fashion, this Court comes to an inescapable conclusion that the Learned Judicial Magistrate, Pudukkottai has not committed any error of jurisdiction at the time of taking cognizance of Cr.M.P.No.5961 of 2012 on his file and ordering issue of notice for the appearance of the parties etc., warranting interference in the hands of this Court sitting in Revision. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

43.It is made clear by this Court that this Court has not dealt with controversies/disputes between the parties in detail or gone into the merits and demerits of their case, but, has only assessed the prima facie case in accordance with law as to whether the Learned Judicial Magistrate is correct or not in taking the Cr.M.P.No.5961 of 2012 on his file based on the facts and circumstances encircling the case and also float on the surface.

44.In the result, with the above said observations, the Criminal Revision Petition is disposed of. It is open to the parties to raise all factual and legal pleas before the trial Court at the time of final hearing of Cr.M.P.No.5961 of 2012 and to seek appropriate remedy in accordance with law and in the manner known to law, if they are so advised. Consequently, connected miscellaneous petition in M.P.(MD) No.1 of 2012 is closed.

Arul

To

1.The Protection Officer,
District social Welfare Office,
Tirunelveli District,
Tirunelveli.

2.The Protection Officer,
District Social Welfare Office,
Pudukkottai District,
Pudukkottai.

3.The Judicial Magistrate,
Pudukkottai.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s