Md. Nur Hassain @ Noor Hossain & Ors vs Thumpa Bibi @ Nashima Khatun & Anr
2022 Latest Caselaw 3167 Cal

             IN THE HIGH COURT AT CALCUTTA
            CRIMINAL REVISIONAL JURISDICTION
                     APPELLATE SIDE

Present:
The Hon'ble Justice Ajoy Kumar Mukherjee


                               C.R.R. 3276 of 2019

                     Md. Nur Hassain @ Noor Hossain & ors.
                                      Vs.
                     Thumpa Bibi @ Nashima Khatun & anr.


For the Petitioner      :     Ms. Nasreen Islam

For the Opposite Party :      Mr. Rudra Prasad Matilal
                              Mr. Rajesh Agarwal

Heard on                :     6th June, 2022

Judgment on             :     13th June, 2022


Ajoy Kumar Mukherjee, J. :-

1.    This revisional application has been preferred for transferring the case

record being A.C. Case No.310 of 2019 (Thumpa Bibi @ Nashima Khatun Vs.

Md. Nur Hossain @ Noor Hossain and ors.) filed under Section 12 of the

Protection of Women from Domestic Violence Act (in short, P.W.D.V. Act),

pending before the court of learned Judicial Magistrate, 9th Court at Alipore,

South 24 Parganas to the court of learned Additional Chief Judicial Magistrate

at Lalbagh, Murshidabad,

2.    It has been contended that the petitioner no.1 got married with

respondent no.1 according to Mohammedan Law and their marriage was duly

registered on 7.8.2015 in Murshidabad and out of said wedlock a female child

was born on 24.9.2016. After about 4 years of marriage, the wife/de facto

complainant lodged a complaint against the present petitioners under Section

498A/34 of the Indian Penal Code read with Sections 3/4 of the Dowry

Prohibition Act, which is pending before the learned Additional Chief Judicial

Magistrate at Lalbagh, Murshidabad. Now, the said complainant/wife has

again filed a case under Section 12 of the P.W.D.V. Act against petitioners

herein before the learned Judicial Magistrate, 9th Court at Alipore being A.C.

case No.310 of 2019.

3. According to the petitioners, the learned Judicial Magistrate, 9th Court,

Alipore, does not have the jurisdiction to try the above case as the

wife/complainant, who has filed the aforesaid case before the learned Judicial

Magistrate, 9th Court at Alipore, is a permanent resident of the District of

Murshidabad and she has also completed her education from the said area.

Their marriage was also solemnized in the district of Murshidabad and after

marriage the Complainant/Respondent all along stayed with the petitioner at

Murshidabad and as such, no cause of action arose within the jurisdiction of

the learned Judicial Magistrate, 9th Court at Alipore and moreover, some of the

respondents in the aforesaid case under Section 12, are aged persons and it

has become very difficult for them to travel from Murshidabad to Alipore and as

such, they have prayed for transferring the case from Alipore court to

Murshidabad court.

4. In reply, Mr. Rudra Prasad Matilal, learned Advocate appearing on behalf

of the opposite party no.1 submits that the wife/opposite party is temporarily

residing in Kolkata in order to protect herself from the torture of the in-laws

and as per Section 27(1)(a) of the P.W.D.V. Act, the respondent no.1 herein has

right to file the case before the learned Judicial Magistrate, 9 th Court at Alipore,

since she is temporarily residing within the jurisdiction of this Court. In

support of her contention, learned Counsel had filed one copy of leave and

licence agreement, which is effective from 1st day of September, 2019 and

ending on 31st January, 2023.

5. Learned Advocate for the petitioners, Ms. Nasreen Islam, submits that

the photostat copy of a licence agreement is not sufficient enough to establish

that the respondent no.1 herein is residing at her given address at premises

No.130, Jaigirghat Road, P.S. Thakurpukur, Kolkata-700063, so that it can

create jurisdiction of the said case before the Alipore Court. She further

submits that the respondent/wife has not filed any other document to show

that she is temporarily residing in Kolkata and accordingly, she cannot pray for

dismissal of the prayer for transfer of the case as above.

6. The place of trial of a case under P.W.D.V. Act is regulated by Section 27

of the Act and Section 27(1)(a) of the Act speaks that the Court of Judicial

Magistrate within the local limits of which the person aggrieved permanently or

temporarily resides or carries on business or is employed, shall be the

competent court to try the offence. The word 'temporary' means that place

which is last for limited time though obviously casual visit to a place, does not

satisfy the requirement of temporary residence even if the person stays there

for a suitable period. The temporary "residence" as envisaged under the Act

also includes such residence where an aggrieved person compelled to take

shelter or compelled to stay for doing some business, in view of domestic

violence perpetrated on her for which she had to leave her matrimonial home.

PWDV Act is the first Act where a temporary residence of the aggrieved person

has also been made a ground for invoking the jurisdiction of court. A

temporary residence can be a temporary dwelling place of the person , who

has for the time being decided to make the place as her home.

7. In the present context, it is true that beside one copy of agreement of

leave and licence, the respondent/wife has not filed any document in support

of her temporary residence in Thakurpukur area. But it appears from the

affidavit of service filed by the petitioners dated 24 th March, 2022 that the

address of the private respondent, where it was served by speed post on

9.3.2022 is at 130, Jaigirghat Road, P.S. Thakurpurkur, Kolkata-700065 and

the same was received with postal remark "delivery confirmed" on 23.3.2022.

This affidavit of service sworn on behalf of the petitioners is sufficient enough

to come to a conclusion that the private respondent/wife is presently residing

within the jurisdiction of Alipore Court and as such, it creates jurisdiction to

file case under Section 12 of the P.W.D.V. Act before the Alipore Court and it is

in compliance with the provisions of Section 27(1)(a), where the private

respondent resides temporarily, as admitted in the above-mentioned affidavit of

service.

8. In view of the above, I find no substance in the petitioners' prayer for

transferring the case from the court of the learned Judicial Magistrate, 9th

Court, Alipore to the court of learned Additional Chief Judicial Magistrate

Lalbagh, Murshidabad and accordingly, the instant revisional application

stands dismissed. However this order will not prevent concerned court to

consider exemption from personal appearance, if sought for by any of the

parties.

9. CRR 3276/2019 is dismissed accordingly.

However there will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties on usual undertakings.

(AJOY KUMAR MUKHERJEE, J.)