The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.537 of 2024 Nithoniel Nayak and others Petitioners Mr. B.P. Tripathy, Senior Advocate …. -Versus- Mimansa Sinha Opposite Party None …. Order No. 02. CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 22.07.2025 1. Heard Mr. Tripathy, learned Senior Advocate appearing for the petitioners. 2. 3. None appears for the opposite party at the time of call. Instant revision is filed by the petitioners challenging the impugned order as at Annexure-4 in Criminal Appeal Case No.26 of 2024 of learned Additional Sessions Judge-cum- Presiding Officer, Designated Court under the OPID Act, Cuttack on the grounds stated therein. 4. Mr. Tripathy, learned Senior Advocate appearing for the petitioners submits that petitioner No.1 is the husband of the opposite party, whereas, other petitioners are her in-laws and in so far as the proceeding under the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) is concerned, it has been initiated at Cuttack. It is Page 1 of 6 further submitted that challenging the maintainability of the proceeding in the court at Cuttack, an application was moved by the petitioners before the learned J.M.F.C.(City), Cuttack in DV CMC No.173 of 2023 and it was disposed of by order dated 9th February, 2024 with a conclusion that such a proceeding under Section 12 of the Act at Cuttack is not maintainable due to want of jurisdiction. The contention is that the opposite party filed the petition under the DV Act at Cuttack while working at Sudurkumpa in the district of Kandhamal. The further contention is that the address statement furnished by the opposite party at Cuttack is a place of casual visit and it could not have conferred the jurisdiction of a court at Cuttack and considering the same, the court of 1st instance dismissed the petition followed by the order at Annexure-1 but it stood overruled by learned court below while disposing of Criminal Appeal Case No.26 of 2024. The contention is also that the learned court below grossly erred in relying a decision of this Court in Rabindra Nath Sahu and another Vrs. Smt. Susila Sahu 2016 Crl.RJ 4931 to hold that the Court at Cuttack has the jurisdiction. The submission is that the decision (supra) is inapplicable in the facts and circumstances of the case and hence, learned court below committed the wrong in reaching at a conclusion regarding jurisdiction of the court at Cuttack. In support of the above contention and with regard to the jurisdiction of a court in juxtaposition to the definition ‘temporary residence’ as envisaged in Section 27 of the DV Act, Mr. Tripathy, learned Senior Advocate cited the following decisions, such as, Mst Jagir Kaur and another Vrs. Jaswant Page 2 of 6 Singh AIR 1963 SC 1521, Prashant and another Vrs. Sau Madhuri and others 2018 SCC Online Bombay 21229 and Afia Rasheed Khan Vrs. Dr. Mazharuddin Ali Khan 2021 SCC Online Bombay 4605 to further contend that a casual visit cannot confer the jurisdiction on a court as the law mandates that a proceeding under the DV Act is maintainable within the jurisdiction of a court of Judicial Magistrate where the person aggrieved permanently or temporarily resides or carries on business and in so far as the case of the opposite party is concerned, she has all along been a resident of Sudurkumpa and having stayed in the district of Kandhamal within the limits of which the cause of action arose and therefore, the learned court below fell into serious error in passing the impugned order i.e. Annexure-4. 5. In Rabindra Nath Sahu (supra), this Court had the occasion to consider the aspect of jurisdiction with reference to Section 27 of the DV Act but ultimately reached at a conclusion that the dispute over temporary visit or residence cannot be adjudicated upon while dealing with an application for transfer. In Mst Jagir Kaur (supra), it has been held and concluded that a wife can file a petition against her husband for maintenance in a Court in the district where she resides and in so far as the meaning of a temporary or permanent dwelling is concerned, it is capable of different meaning including domicile in the strictest and the most technical sense and a temporary residence whichever meaning is giving to it, one thing is obvious and it is that the same does not include a casual Page 3 of 6 stay in, or a flying visit to a particular place. In Prashant (supra), the Bombay High Court concluded that requirement of Section 27 of the DV Act is that in order to confer territorial jurisdiction upon a Judicial Magistrate, there has to be at least a temporary residence within territorial jurisdiction of the said Court and the temporary residence requires at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and like which comes to an end when the goal or purpose is achieved. In a similar case, while dealing with an apprehension expressed by the wife and seeking indulgence of the Bombay High Court in Afia Rashee Khan (supra), it has been concluded that she was well-educated, financially sound and her parents are in business and against such a background, it was difficult to accept the contention or that she could not seek protection order, hence, in other words, any such application in no way to suggest or implies that she was forced to leave the place or was intending to reside in Mumbai and accordingly, dealt with the question of jurisdiction vis-à-vis cause of action conferring jurisdiction upon a Magistrate referring to an earlier decision in Ramesh Vrs. State of Maharashtra 2011 Criminal Law Journal 4074, wherein, it has been discussed with regard to the distinction between temporary residence and causal visit and concluded therein that the expression ‘resides’ implied something more than ‘stay’ and some intention to remain at a place and not merely to pay it a casual visit and the question of residence is required to be decided accordingly. Whether the party claiming residence, permanent to temporary, Page 4 of 6 has an intention to stay at a particular place then only it could be said that the party is residing at that particular place, either permanently or temporarily. 6. On a proper understanding of the citations referred to hereinabove and question on jurisdiction conferred on a court with reference to Section 27 of the DV Act, the conclusion is irresistible and to the effect that a cause of action for a jurisdiction would be within the local limits of which the aggrieved person permanently or temporarily resides and such temporary residence does not include a casual visit. In so far as the case at hand is concerned, a preliminary objection was raised by the petitioners challenging the maintainability of the proceeding under the DV Act at Cuttack, in response to which, the opposite party though furnished an address of Cuttack but provided one more address at Penji Sahi in the district Kandhamal by filing an affidavit. On a reading of the impugned order at Annexure-4 and also the order of the court of 1st instance dated 9th February, 2024, it is made to understand that the opposite party has been residing in Kandhamal district and at her place of service being at Sudurkumpa and Katrikia in the district of Kandhamal and at no point of time, a resident of Cuttack and any such address statement furnished to the Court is not a temporary residence and she casually visits her parents and hence, considering the said fact and having regard to the intent and purport of Section 27 of the DV Act and that residence shall have to be a permanent or temporary one excluding any such casual or flying visit, it has to be held that Page 5 of 6 learned court below wrongly relying upon the decision in Rabindra Nath Sahu (supra) arrived at a conclusion setting aside the order of the learned J.M.F.C.(City), Cuttack dated 9th February, 2024 and therefore, it shall have to be set at naught. 7. Accordingly, it is ordered. 8. In the result, the revision stands allowed. As a necessary corollary, the impugned order dated 5th August, 2024 as at Annexure-4 in Criminal Appeal Case No.26 of 2024 of learned Additional Sessions Judge-cum-Presiding Officer, Designated Court under the OPID Act, Cuttack is hereby set aside upholding the order of learned J.M.F.C.(City), Cuttack as at Annexure-1. 9. Issue urgent certified copy of this order as per rules. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 24-Jul-2025 12:48:34 Page 6 of 6