Bombay High Court
Nitin Vikas Karake vs Chetana Nitin Karake And Anr on 28 November, 2023
2023:BHC-AS:35648
16-revn355-23.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally signed by
VASANT VASANT
ANANDRAO ANANDRAO IDHOL
Date: 2023.12.01
IDHOL 19:03:30 +0530
CRIMINAL REVISION APPLICATION NO.355 OF 2023
Nitin Vikas Karake,
Age : 35 years, Occupation :
Service, R/at : Andheri, Mumbai
Currently R/ at : Ogalewadi,
Tal : Karad, Dist : Satara ...Applicant
....Versus....
1. Mrs.Chetana Nitin Karake,
Age : 35 Years, Occupation :
Business & Service,
R/at : C/o : Akshay Arun Patil,
Flat No.4, 1st Floor, Sainand Apartment,
Near Datta Servicing Center,
Kolatkar Gall Mangalwar Peth,
Satara, Tal.Karad, Dist : Satara.
2. State of Maharashtra ...Respondents
Mr.Kalpesh U. Patil for the Applicant.
Mr.R.C. Barge for Respondent No.1.
CORAM : RAJESH S. PATIL, J.
DATE : 28TH NOVEMBER, 2023.
ORAL JUDGMENT :-
1. This Criminal Revision Application filed under Section 397
of the Code of Criminal Procedure, challenges the impugned
judgment and order dated 26 September 2023 passed by the
Sessions Court, Satara in PWDV Criminal Appeal No.5 of 2023 and
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order dated 1 February 2023, passed below Exhibit - 18 in Criminal
Miscellaneous Application No.481 of 2022, by J.M.F.C., Satara.
Facts :-
2. The Applicant (husband) and Respondent No.1 (wife) got
married on 18 December 2014 at Satara. Respondent No.1 (wife)
was earlier married, but since her first husband died, at the time of
time of her second marriage, with the Applicant, she was a widow.
There are no issues out of the present marriage. For sake of easy
reference parties are referred as 'husband' and 'wife'.
3. As there were disputes and differences between the
husband and wife ; wife filed Criminal Miscellaneous Application
No.481 of 2022 under the provisions of the Domestic Violence Act,
2005 (for short "D.V. Act") under Sections 12, 18, 19, 20, 22 and 23
before J.M.F.C., Satara. In the said Application, it was pleaded that
she was residing in Pune for the purpose of studying computer
education at Pune, and she used to time and again go to Satara. It is
further stated that the brother of the wife one Mr.Akshay Arun Patil, is
residing at Satara, along with parents and he is taking care of
monetary aspect as to education, medical expenses and day to day
expenses of the Respondent / wife.
4. The husband appeared in the proceedings and thereafter
filed an application below Exhibit -18 on 29 November 2022, before
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J.M.F.C., Satara seeking rejection of the complaint filed under D.V.
Act on the ground of want of jurisdiction.
5. After the reply was filed to the application Exhibit - 18 by
wife; J.M.F.C., Satara heard the parties and by his judgment and
order dated 1 February 2023, rejected the application of the husband.
6. Being aggrieved by the order dated 1 February 2023,
passed by J.M.F.C., Satara ; husband filed Criminal Appeal under
Section 29 of the D.V. Act before the Sessions Court, Satara bearing
PWDV Criminal Appeal No.5 of 2023. The Sessions Court, Satara,
consequently after hearing the parties in PWDV Criminal Appeal No.5
of 2023, dismissed the appeal by its judgment and order dated 26
September 2023.
7. The present Criminal Revision Application is filed by the
husband challenging both the judgment an order passed by J.M.F.C.,
Satara and Sessions Court, Satara.
Submissions :-
8. Mr.Kalpesh Patil on behalf of the husband made his
submissions.
8 (i). Mr.Patil submitted that after the marriage between the
parties, they started residing at Navi Mumbai till November 2016.
Thereafter since the medical condition of the wife did not suit her to
reside at Navi Mumbai, she shifted to Pune in a leave and license
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premises from November 2016. In the said leave and license
agreement, the Licensee were both the husband and wife. Thereafter
from March 2018 to January 2019, the wife again shifted back to the
residence of husband at Sanpada, Navi Mumbai. In January 2019,
wife again shifted back to Pune and started residing in the premises
on the basis of leave and license agreement entered into by husband
and wife as Licensee. The said leave and license agreement
subsisted till 30 November 2022.
8 (ii). Mr.Patil submitted that except paragraph 34 of the D.V.
Application, there is no submission as to how J.M.F.C., Satara has
jurisdiction to try and entertain the D.V. Application.
8 (iii). Mr.Patil submitted that in fact the wife was residing at
Pune, she has substantial interest at Pune since the flat of her earlier
husband is also in the city of Pune. Admittedly, she is residing in
leave and license premises at Pune on the date when the D.V.
Application was filed. In fact even the affidavit of disclosure shows
her address of Pune.
8 (iv). Mr.Patil also relied upon the address of wife of her Aadhar
Card, which is again of Pune.
8 (v). Mr.Patil also submitted that Section 27 of D.V. Act is clear,
though it mentions about the permanent and temporary address. In
the present proceedings wife does not have any address at Satara,
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which can be called as permanent as her Pune address is a
temporary address.
8 (vi). Mr.Patil also placed reliance on two judgments of this
Court, the first judgment in the case of Ramesh Mohanlal Bhutada
& Anr. vs. State of Maharashtra & Ors. reported in 2011 (6) Mah.LJ
167 and another judgment in case of Mrs.Afia Rasheed Khan vs.
Mr.Dr.Mazhasruddin Ali Khan & Anr. reported in 2022 ALL MR
(Criminal), 3125.
8 (vii). Mr.Patil submitted that the present Criminal Revision
Application deserves to be allowed and both the judgments and
orders passed by the Sessions Court, Satara and J.M.F.C., Satara be
quashed and set aside.
9. Mr.Rushikesh Barge on the other hand made his
submissions on behalf of Respondent No.1.
9 (i). Mr.Barge submitted that his client - wife had been to Pune,
admittedly only for the purpose of education and after her education
is complete, she was supposed to go back to her parent's house at
Satara ; as her relation with her husband was not of co-ordinal.
9 (ii). Mr.Barge further submitted that the argument as regards
the residence of the first husband is concerned, there is a dispute
between the Respondent / wife and her in-laws of the first husband.
Apart from the dispute which is going on, there is loan of
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Rs.28,00,000/- on the said flat.
9 (iii). Mr.Barge further submitted that the wife is residing
permanently with her parents at Satara. The same can be seen from
the title clause of the D.V. Application, wherein the address of parents
of wife has been shown as Satara.
9 (iv). Mr.Barge further submitted that the present Application is
filed only for the purpose of prolonging the litigation.
Analysis and Conclusions :-
10. I have heard the counsel of both the sides and I have gone
through the documents on record.
11. It is an admitted fact that the marriage of the Applicant and
Respondent No.1 took place on 18 December 2014 at Satara. It is
further admitted that before the marriage, Respondent No.1 (wife)
was residing with her parents at Satara. After the marriage, the
husband and wife stayed at Navi Mumbai and also at Pune in a leave
and license premises. In the D.V. proceedings filed by the wife at
J.M.F.C., Satara, the address of the wife is that of Satara. So also in
paragraph 34, it has been stated that she has been taking education
of computer at Pune and she has been, time and again going to
Satara.
12. Leave and license agreement of the premises at Pune
shows the address of husband at Satara. Though the counsel for the
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husband has submitted that Ogalewadi, Satara is the place within the
jurisdiction of Karad J.M.F.C. It is a fact that even husband hails from
Satara district, even though the taluka is different. There is no dispute
that the premises where the wife was staying at Pune, was under
leave and license basis.
13. The affidavit of disclosure filed by the wife in the first
paragraph itself, mentions her address that of Satara. However, while
filling information regarding personal, she has stated that matrimonial
house address of the leave and license agreement at Pune. So also
the said affidavit of assets and liabilities as regards to the details of
legal proceedings and maintenance being paid mentions about filing
of divorce petition viz. HMP (Petition A) No.105 of 2022, filed before
the Judge Family Court, Satara. Counsel for Respondent No.1 was
asked about the status of HMP (Petition A) No.105 of 2022. Counsel
for Respondent No.1 submitted that the said divorce petition has
been subsequently withdrawn by the wife. As regards the details of
the liabilities of deponent, the said affidavit of disclosure mentions
that the flat of pre-deceased husband has encumbrance of loan of
Rs.28,00,000/-, and it is under dispute. Further as regards the
information with respect to the income, assets and liabilities of other
spouses, in the affidavit it is stated that the husband is working from
home at Ogalewadi. The said place Ogalewadi is within the Satara
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District.
14. Section 27 of the D.V. 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 this Act shall be enforceable
throughout India." (Emphasis supplied)
15. Therefore, sub-clause (1) of Section 27 allows the
aggrieved person to file the case where he/she permanently or
temporarily resides or carries on business or is employed. There is no
dispute that before the marriage,the wife was residing with her
parents in their house at Satara. Even the marriage took place at
Satara. The premises where the wife is residing is admittedly a
premises which is obtained on leave and license basis. Supreme
Court, in various judgments have held that the Licensee in a leave
and license agreement does not have any right in the license
premises.
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16. Therefore, the law is clear that the Licensee will have no
right in the licensed premises and as soon as the license term is over,
the Licensee has to vacate the premises. In the present proceedings,
leave and license premises expired on 30 November 2022. The
Applicant was not able to show that the wife had any other premises
to stay in the city of Pune. As regards the flat of the first husband,
there is dispute which is pending between the first husband's parents
and the Wife. So also there is encumbrance by way of loan of
Rs.28,00,000/- on the flat as per the statement made in the affidavit
of wife.
17. The judgment of this Court cited by the advocate for the
Applicant (husband) i.e. Ramesh Mohanlal Bhutada & Anr. (supra),
the facts were quite different, as in the said proceedings, the wife had
filed the proceedings at the place called as Akot, which is according
to her is residence place of her parents maternal brother and in the
said proceedings, High Court remanded the matter to J.M.F.C.
Therefore, since the facts were quite different, hence the proceedings
were remanded back.
18. As regards the judgment of Mrs.Afia Rasheed Khan
(supra), the fact in this judgment was that the husband along with
grown up son was residing at Hyderabad and the wife had submitted
that she has been residing in hotel Hayatt, Bandra-Kurla Complex,
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Mumbai. Hence on the basis of her address at hotel Hayatt, she had
filed the proceedings under D.V. Act at Mumbai while the husband
stayed at Hyderabad. Therefore, this Court held that where the
Application under Section 12 of the D.V. Act filed by the wife
discloses or implies her intention to reside at a place in Mumbai was
casual visit to acquire jurisdiction. The Court held that the wife was
not temporarily residing within the jurisdiction of the Court at Mumbai
and also visit to Mumbai was a casual visit.
19. In the present proceedings, it is not the case of the wife
that she was temporarily residing at Satara. In fact, her case is that
her permanent address is at Satara, which is her parent's residence.
Before marriage she stayed at Satara. As I have already held that the
place at Pune was temporarily place, as the premises was on leave
and license basis and therefore, I hold that there is no permanent
address of wife at Pune. Hence, at the most, her residence at Pune
can be called as temporary place of residence, and her permanent
place of residence would be at Satara. I do not find any ulterior
motives in the said Application being filed at Satara. Even the
husband has his native place of residence at Karad, which is 50 k.m.
away from "Satara city", even though the husband is at present
working in Navi Mumbai in IT Sector.
20. As far as Aadhar Card address is concerned, the said
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Aadhar Card address is of the first husband of the wife. It makes
sense that when a person applies for Aadhar Card, he / she will give
the place where the person is residing at that moment. At the relevant
time, since the wife was residing with her first husband, the address
of the first husband has been mentioned on the Aadhar Card.
21. Taking into consideration of the above facts, according to
me, there is no perversity in the finding of J.M.F.C., Satara and
Sessions Court, Satara.
22. Hence, this Criminal Revision Application is dismissed.
Hearing of the Criminal Miscellaneous Application No.481 of 2022,
pending with J.M.F.C., Satara is expedited. J.M.F.C., Satara should
make an endeavour to dispose of the Criminal Revision Application
as soon as possible, preferably within a period of one year from the
date of passing of this order.
23. All parties to act on the authenticated copy of this order.
(RAJESH S. PATIL, J.)
