DV Act-Magistrate can pass Residence Order even with regard to property situated outside state

Ajay Kaul and ors Vs State and ors

Jammu & Kashmir HC, Jammu Bench

01/02/2019

CRMC No.274/2016

About/from the judgment:

"If it is held that magistrate cannot pass order with regard to property situated outside State, then very purpose of Act would be defeated.”

 

The Jammu and Kashmir High Court has held that a Magistrate can pass 'Residence order' under Domestic Violence Act even with regard to property situated outside State.

 

In this case, the wife filed an application under the provisions of J&K Protection of Women from Domestic Violence Act, 2010. The Magistrate ordered maintenance at Rs.20,000 per month and ordered sharing of the accommodation at Flat in Noida.

 

Before the High Court, the husband contended that the Magistrate had no territorial jurisdiction as parties lived at Udhampur and no violence as alleged in complaint have been committed at Udhampur. It was contended alleged violence had taken place outside the State of J&K, It was further contended that order of accommodation in shared house is situated at Noida is illegal as Magistrate has no power as it is situated outside territory of State and where provisions of Act are not applicable.

 

As regards the contention on 'territorial jurisdiction', the court observed that the wife, in this case, is residing with her parents at Udhampur, which is natural residence of victim after she was thrown out of her matrimonial house and thus the Magistrate court at Udhampur has jurisdiction over the matter.

 

Referring to Section 19,201 and 23 of the Act, the court observed that residence order can be passed with regard to property which is situated outside State, is not tenable. The court observed:

 

"As in D.V. Act, there is nothing which debars the magistrate to pass such order with regard to property situated outside State. The aim and objects of D.V. Act can be gathered from the language used in preamble which says that "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto". If it is held that magistrate cannot pass order with regard to property situated outside State, then very purpose of Act would be defeated."

 

Another issue raised was whether Section 12(1) only stipulates that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. The court observed that Section 12(1) does not directly stipulate that a report 'shall' be called for, before any relief can be granted. It said:

 

"Section 12(1) only stipulates that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Section 12(1) does not directly stipulate that a report 'shall' be called for, before any relief can be granted."

Read the Judgment

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