Rafiq Ahmed S/O. Miya Khan ... vs Zaheen W/O. Rizwan Adawadkar Khan ...
2021 Latest Caselaw 2381 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                    CRIMINAL APPLICATION NO. 2948 OF 2019

1.     Rafiq Ahmed s/o Miya Khan Adawadkar,
       Age : 64 years, Occu. Pensioner,
       R/o A-19, Kumar Premier,
       Opp. Punjab Bakery, Bhawani Peth,
       745/746, Camp Pune

2.     Nafisa Shaheen w/o Rafiq Ahmed
       Adawadkar Kha, Age : 62 years,
       Occu. Household, R/o Pune

3.     Amrin Maria d/o Rafiq Ahmed
       Adawadkar Khan,
       Age : 25 years, Occu. Service,
       R/o Pune

4.     Mohsin s/o Rafiq Ahmed Adawadkar
       Khan, Age : 32 years, Occu. Judge Indian Navy,
       R/o Navy Colony, Mumbai                                 APPLICANTS

       VERSUS

1.     Zaheen w/o Rizwan Adawadkar Khan,
       Age : 29 years, Occu. Junior Architect,
       Residing at Plot No.36, Amit Nagar,
       Nandanvan Colony, Opp. Avanti Apartment,
       Aurangabad

2.     The State of Maharashtra                              RESPONDENTS

                                      ----
Mr. Hemant Surve, Advocate for the applicants
Mrs. Bharati Gunjal, Advocate (appointed) for respondent No.1
Mr. P.G. Borade, A.P.P. for the respondent/State
                                      ----

                                    CORAM :    MANGESH S. PATIL, J.

DATE : 05.02.2021

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ORAL JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. With the consent

of both the sides, the matter is heard finally at the stage of admission.

3. The applicants are the parents and other relatives of the husband

of respondent No.1. They are praying for quashment of a proceeding initiated

by her under Section 12 of the Protection of Women from Domestic Violence

Act, 2005 ("DV Act", for short), seeking various reliefs thereunder, in the

Court of Magistrate at Aurangabad.

4. Mr. Hemant Surve, the learned Advocate for the applicants

would submit that respondent No.1 has filed an application in a Court which

inherently lacks jurisdiction. She has never stayed in Aurangabad and going

by the provisions of Section 27 of the DV Act, she could not have legally

instituted the proceeding at Aurangabad. The learned Advocate took me

through various averments in the application filed by her under Section 12 of

the DV Act, showing that though the marriage was solemnized at

Aurangabad, she was cohabiting with the husband at Mumbai. The applicants

are residents of Pune. There are averments at many places showing that

even she holds a bank account in Pune. The property in respect of which she

is claiming relief that is a joint account held by her in a bank at Pune and the

house property also situates in Pune. He would, therefore, submit that it is

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only with an ulterior motive to harass the applicants that she has filed the

proceeding at Aurangabad. It is a sheer abuse of process of law. This Court

has ample powers under Section 482 of the Code of Criminal Procedure to

quash the proceeding.

5. Mrs. Bharati Gunjal, learned Advocate for respondent No.1

submits that the applicants are seeking quashment of the proceeding on the

sole ground of territorial jurisdiction. She would submit that according to the

provision of Section 27 of the DV Act, even an aggrieved person can prefer a

proceeding at a place of her temporary residence. She would further point

out that respondent No.1, in her application under Section 12, has

specifically averred that she has been residing at Aurangabad. She would

submit that merely because respondent No.1 at some point of time was

serving in Mumbai and may be staying in Mumbai, that does not preclude her

from instituting the proceeding in Aurangabad, if on the date of filing of such

an application, she was temporarily residing there. She would further point

out that even she had lodged Crime No.77/2018 for the offences punishable

under Sections 498-A, 406 read with Section 34 of the IPC in Cantonment

Police Station, Aurangabad on 06.05.2018. If such is the state-of-affairs, it

cannot be said that merely because the property in respect of which she has

claimed relief situate in Pune, she could not have legally instituted a

proceeding in Aurangabad.

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6. I have carefully gone through the papers. Section 27 of the DV

Act reads as under :

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.

As can be appreciated, an aggrieved person can institute a proceeding under

the DV Act at a place inter alia where she temporarily resides. Meaning

thereby that she can initiate a proceeding at a place where she has been

residing even for a temporary period.

7. If such is the state-of-affairs, when respondent No.1 has come

with a specific case that on the date of institution of a proceeding under

Section 12 of the DV Act she was residing at Aurangabad, that should be

decisive of the matter as far as aspect of jurisdiction is concerned. Therefore,

there is no substance in the submission of the learned Advocate for the

applicants that she could not have filed the proceeding in a Court at

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Aurangabad and the submission is not legally tenable on the fact situation of

the matter.

8. Though not seriously enough, the learned Advocate for the

applicants would try to seek quashment of the proceeding even on merits and

faintly made an attempt to point out as to how the applicants could not have

made to face the application under Section 12 of the DV Act.

9. However, I am afraid, as can be seen from the contents of the

application that the only ground on which the proceeding under Section 12

has been sought to be quashed, is the ground of lack of jurisdiction. There is

absolutely no whisper regarding maintainability of the proceeding on merits.

Therefore, the applicants are not entitled to claim the quashment of the

proceeding on merits.

10. Under the circumstances, there is no merit in the application and

it is dismissed. Rule is discharged.

11. It is made clear that the observation made herein above shall not

be construed as deciding the issue regarding jurisdiction finally. It shall be

open for the parties to prove/disprove it based on the evidence to be

recorded and the learned Magistrate shall decide it on its own merits.

                                                      [MANGESH S. PATIL]
                                                          JUDGE
npj/CRIAPLN2948-2019





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