INDERJIT SINGH AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) In this petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir, the petitioner inter alia has assailed the validity of the order dated 10.07.2017 passed by Judicial Magistrate Ist Class, Kamrup (M) Guwahati Assam. The petitioner also seeks writ of prohibition restraining the respondent No.2 to hand over the petitioner Nos. 2 and 3 to the respondent No.3 against their wishes and to the detriment of their studies. The petitioner also seeks writ of mandamus commanding the respondent No.2 to hand over the petitioner Nos. 2 and 3 back to the petitioner No.1 and a direction to respondent no.3 not to cause any interference in the studies of the petitioners 2 and 3.

(2.) Facts giving rise to the filing of this writ petition briefly stated are that the petitioner No.1 and respondent No.3 entered in a wedlock in the year 2009 as per the Sikh religious rites in Jammu and lived at Jammu. Out of the wedlock, two children namely petitioner No.2 and 3 were born. It is the case of the petitioners that petitioner No.1 met with an accident on 16.01.2016 and was hospitalized for several months in Amritsar. It is the case of the petitioners that respondent No.3 on 30.06.2016 left the matrimonial house in the early morning and did not join the matrimonial home. The petitioner No.1 thereupon lodged a missing report with regard to respondent No.3 in Police Station, Gangyal on 01.07.2016. The police and the petitioner No.1 searched the respondent No.3 and she was recovered on 08.07.2016 and was handed over to her father by the police on Superdnama. It is the case of the petitioner No.1 that respondent No.3 without caring for the minor children who were studying in Schools in Jammu, eloped with some boy and was recovered after 9 days by the police. The petitioner received an order dated 10.07.2017 passed by Judicial Magistrate Ist Class, Kamrup passed under the provisions of Section 12 of the Protection of Women from Domestic Violence Act . In the aforesaid factual background, the petitioners have approached this Court.

(3.) Learned counsel for the petitioners submitted that this Court has jurisdiction to entertain the writ petition as the part of cause of action has arisen within the territorial jurisdiction of this Court. In support of the aforesaid submission, learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in the case of Navinchandra N. Majithia v. State of Maharashtra , 2000 Leage Eagle 1374, as well as decision of Calcutta High Court in the case of Inmark Finance And Investment Co. v. Metropolitan Magistrate And Ors , 1993 76 Company Cases 155 Calcutta. Learned counsel for the petitioners also submitted that since the parties have got married as per the law applicable in the State of Jammu and Kashmir, therefore, the provisions of the Central Act cannot be invoked by the Judicial Magistrate Ist Class, Kamrup. In support of the aforesaid submission, reference has been made to decision of the Division Bench of this Court in the case of K. Radha Krishnan Nayyar v. Smt. Radha , AIR 1992 (J&K) 1.