Need urgent help regarding dv act


Hi, 

I need urgent help regarding DV act. I am looking for some judgement which define Permanent residence. I am fighting a case over jurisdiction under DV act. My wife is currently working and staying in Mumbai. However, she has filed a case against me and my family under DV act in Kanpur (her parents stay in kanpur). She has herself stated in her petItion that she is working and staying in Mumbai and none of the incidents in her petition related to kanpur. We raised the jurisdiction issue to metropolition Magistrate (MM) in kanpur but the decision went against us. The  MM stated in the judgement that since her parents are in Kanpur and she goes to mumbai only for work but otherwise stays in kanpur, therefore, kanpur is her permanent residence. This is inspite of she herself mentioning in her petitiion that she is working and living in Mumbai. The MM is not accepting our argument that after marriage, wife matrimonial place is her permanent residence

Please help me if someone has any judgement where High court or supreme court has defined Permanent residence. I would be soon approaching the higher courts and need the judgement urgently.

Also, if anyone can guide me how to deal with these cases in high court/Supreme court, it would be really helpful.

Thanks

 
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Advocate

 Assuming that  Hindu Marriage  Act  applies  to you  the jurisdiction for  filing any of the petitions under Hiundu Marraige  Act  would be 1,  where  the marriage  took place ,2.where the opponent  resides ,3 where the parties  last  resided  togather ,

 if  any  of the  instance  abovementioned is  satisfied   then that court  would have  jurisdiction.,

To  reside  at a particular place  for  this purpose  would necessarily  mean  that  the  party had intention  to male that  place  permenant  residence , mere temporary  residence  for  service or other purpose  would not  confer jurisdiction over that place ,

 
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practicing advocate

Under the DV act protection officer of the area where the DV act incident has taken place,  On this ground you can contest the case. Where you live and where the DV act case is filed.  It is very good case to contest, file an application on the ground of jurisdiction contending that protection office or Kanpur had no jurisdction to file a report etc., if it is rejected then approach the high court.

 
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thanks Sir, however, my query is how do we define the permanent residence for a married girl who has seperated from her husband and is now residing in seperate residence in mumbai (her parents are in kanpur) considering the following facts:

- the marriage took place in haryana, we both have been working and staying in mumbai from before marriage and till date.

- She has herself stated in her petItion that she is working and staying in Mumbai and none of the incidents in her petition related to kanpur.

-  we have shared  domestic relationship only in mumbai.

-  the seperate residence where she is currently staying would be her temporary residence ( as per Justice Dhingra judgement)

so none of the dv acts conditions of jurisdiction are being satisfied here. 

However, the MM stated in the judgement that since her parents are in Kanpur and she goes to mumbai only for work but otherwise stays in kanpur, therefore, kanpur is her permanent residence.

Now my query is how do we define permanent residence? As per my understanding, the permanent residence of a girl after marriage would be her matrimonial house. Please confirm if i am correct and if there is any judgement to justify the definition of permanent residence

 

 
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Advocate/ nadeemqureshi1@gmail.com

Dear Neeraj according to section 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. in this section it is mention that 'the person aggrieved permanently or temporarily resides' so she can file a case against you in kanpur. feel free to call
 
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md

see neeraj very simple you have the burden of proving that she lives in mumbai

you file RTI to Mumbai corporation or electricity bord or rent controller about her saty of that residence or she might have somewhere mentioned her residennt adress as Mumbai and take that copy and prove it but that may not be much helpful because the case would be transffered to the place where the cuase of action as taken placxe and SC has staed that one day stay even in lodge will have the jurisdiction so better would be to fight on the meits of the case rather fighting on jurisdiction.

go for sessions court for appeal

 
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Nadeem Sir, one counter query , 

after marriage the wife's permanent residence would be her husband's matrimonial house.(in this case it is mumbai). now if wife has been seperated from her husband and residing in same city i.e. mumbai in a seperate residence and working in mumbai, so this would be called her temporary residence (as per definition of temperory residence given by Justice Dhingra).

So kanpur is no where in picture i.e. niether temporary residence nor permanent residence.....so how can kanpur be the jurisdiction?

 
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Go to sessions court for appeal.

 
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md

.so how can kanpur be the jurisdiction?

see if she has stated that u have abused her at kanpur at any date the kanpur jurisdiction applies read Rule 6(1) of the DVA act abd in DIR the date time and type of violence should be very specific read J Dhingra s judgment on that and challenge the case

Crl.MC No. 1766/10 & 1773/10 Page 1 of 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: September 24, 2010 Date of Order: 8th October, 2010 + Crl.M.C.No. 1766/2010 % 08.10.2010 Bhupender Singh Mehra ... Petitioner Through: Mr. Brajesh Kumar, Advocate Versus State NCT of Delhi & Anr. ... Respondent Through: Mr. Anurag, Advocate for R-2 + Crl.M.C.No. 1773/2010 % 08.10.2010 Diwan Singh Mehra ... Petitioner Through: Mr. Brajesh Kumar, Advocate Versus State NCT of Delhi & Anr. ... Respondent Through: Mr. Anurag, Advocate for R-2 JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT
By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New
Crl.MC No. 1766/10 & 1773/10 Page 2 of 5
Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions. 2. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch. 3. Section 12 of the Domestic Violence Act reads as under:
12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the
Crl.MC No. 1766/10 & 1773/10 Page 3 of 5
amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act. Section 2(q) reads as under: 2(q) “respondent” means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
Crl.MC No. 1766/10 & 1773/10 Page 4 of 5
5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, s*xual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of laying down its own procedure for disposal of an application under Section 12
Crl.MC No. 1766/10 & 1773/10 Page 5 of 5
or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice.
The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent. 6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them. September , 2010 SHIV NARAYAN DHINGRA, J. vn

 
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thanks Swaghat Sir, however, the judgement which you have mentioned is about incidences related to violence at that particular place. However, in my case, my wife has not mentioned any such DV incidence of kanpur. Secondly, the DPO report also clearly states that none of the incidence relates to kanpur and kanpur court cannot have any jurisdiction as the wife is working and residing in mumbai from before marriage.

The reason why MM judgement has gone against us is that  MM stated in the judgement that since her parents are in Kanpur and she goes to mumbai only for work but otherwise stays in kanpur, therefore, kanpur is her permanent residence. This is inspite of she herself mentioning in her petitiion that she is working and living in Mumbai. I know where she is working in mumbai and where she is residing in mumbai. 

this is the reason i am asking how do we define permanent residence? my understanding says that after marriage, wife matrimonial place is her permanent residence. Please clarify.

Thanks a lot

 
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