SHARAD KUMAR PANDEY Vs. MAMTA PANDEY

JUDGEMENT

(1.) This petition under Section 482 Cr.P.C and under Article 227 of the Constitution of India has been preferred by the petitioner for quashing/ setting aside the order and judgment dated 3rd November 2009 passed by learned Additional Sessions Judge, Delhi dismissing the revision petition of the petitioner against an order passed by learned Magistrate taking cognizance of a complaint under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short, "the Act").

(2.) The contention raised by the learned counsel for the petitioner before the court of Magistrate and before the court of learned ASJ was that the marriage between the parties was solemnized in Lucknow on 22nd February 2004. Before marriage, the complainant/ respondent was living in Lucknow at her parental house and was doing Ph.D. research work in Lucknow under supervision of Mr. R. C. Tripathi. After marriage, the respondent/wife remained at Lucknow, occasionally, she went to Shillong where petitioner i.e. husband of the complainant wife/ was posted. The incident of domestic violence, if any, had taken place in Lucknow and nothing happened at Delhi. However, the complaint against the petitioner was lodged at Delhi. He submitted that the complainant/ wife had given address of 175, Gulmohar Enclave, New Delhi, a house where brother-in-law of complainant/ wife namely Mr. Rajesh Ojha was residing. The Court at Delhi would have no jurisdiction.

(3.) The facts regarding place of marriage and residence are not in dispute. The learned Sessions Judge relying on Bhagwan Das and another v Kamal Abrol and others, 2005 11 SCC 66 observed that since the temporary residence being one of the incident of jurisdiction the controversy whether the residence of the wife at Delhi was a temporary residence or not, can be decided only after the evidence. He also observed that the Domestic Violence Act being a new Act, there was lack of judgments given by the superior courts on the issue and the issue would be clarified only when some decisions of superior courts come on this point. He observed that if the wife was able to prove that her temporary residence was in Delhi with her sister within the meaning of Section 27 of the Act, the trial court would have jurisdiction to decide the matter. However, this fact can be decided only on the basis of evidence, he left the question open.