Rabiya R.A. v. State of Kerala and Muhammed Shahid K.B.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940 Crl.Rev.Pet.No. 169 of 2018 (AGAINST THE ORDER IN CMP NO.2464/2017 IN MC NO. 17/2017 OF JUDICIAL FIRST CLASS MAGISTRAE COURT, KALAMMASSERY, ERNAKULAM) REVISION PETITIONER(S)/RESPONDENT/PETITIONER RABIYA R.A. 26 YEARS, D/O. E.A.M.ASHRAF, RABIYA MANZIL, PERINGALA P.O., KUMARAPURAM, ERNAKULAM, PIN-683 565. BY ADV.SMT.R.LEELA RESPONDENT(S)/PETITIONER/RESPONDENT: 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. MUHAMMED SHAHID K.B., AGED 30 YEARS, S/O. BACKAR, KALLEPPURAM HOUSE, POTTACHALIPADOM ROAD, CHANGAPUZHA NAGAR P.O., THRIKKAKARA NORTH VILLAGE, KALAMASSERY, PIN-682 033. R2 BY ADV. SRI.M.A.SHIHAB R2 BY ADV. SRI.T.A.AJMAL HUSSAIN R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 2/3/2018 THE COURT ON 13/4/2018 PASSED THE FOLLOWING: CRL.M.C. NO.169/2018 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1: COPY OF THE PETITION MC NO,17/2017 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMMASSERY. ANNEXURE A2: COPY OF THE PRELIMINARY OBJECTION(CMP NO.2464/17) FILED BY THE RESPONDENT IN MC NO.17/2017) RESPONDENTS EXHIBITS: NIL /TRUE COPY/ PS TO JUDGE. ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl R.P..No.169 of 2018** - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of April , 2018 ## **O R D E R** The short point on which the Crl.revision is laid is on the question of territorial jurisdiction of a Magistrate, in considering the applications under the Muslim Women(Protection of Rights on Divorce) Act, 1986. 2. The petitioner herein moved the court below in MC No.17/2017 seeking relief under section 3 of the Muslim Women(Protection of Rights on Divorce) Act, before the jurisdictional Magistrate Court at Kalamassery, Ernakulam. After appearance of the respondent, he raised objection, contending that the court at Kalamassery did not have territorial jurisdiction to consider the application. It was contended that, the petitioner and the respondent resided together as husband and wife and begot a child when they were residing at Kalamassery. The respondent had issued talaq notice from Kalamassery, wherein the second respondent herein was residing. Though the petitioner herein was presently residing at her father's house at Peringala , the petitioner Crl.R.P.No.169/2018 2 some times resides at Nettoor to look after her aged grandparents. It was contended that the second respondent herein was permanently residing within the jurisdiction of the Kalamassery court and was running a hotel business adjacent to the magistrate court itself. Hence, it was contended by the petitioner herein that the magistrate, as contemplated under section 2 (c) of the Act includes the magistrate who has jurisdiction to try the matter. 3. Negativing the above contentions, the learned Magistrate by order in CMP No. 2464/2017 allowed the application filed by the second respondent herein raising objection regarding the territorial jurisdiction to entertain the application and returned MC No.17/2017, for presentation before the proper court. It was held that, the Magistrate, as contemplated under section 2 (c) of the Act, means a Magistrate within whose jurisdiction divorced woman resides. Hence, the court below concluded that the petition under section 3 of the Act can only be filed before the Magistrate within whose jurisdiction the divorced woman resides at present. It was held that even admittedly the petitioner herein was residing beyond the jurisdiction of Kalamassery and hence the Magistrate at Kalamassery did not have territorial jurisdiction to entertain application. 4. The ground for challenging the above order was that section 2(c) of the Act prescribes that the Magistrate means a Crl.R.P.No.169/2018 3 Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides. It confers the jurisdiction on that court, in addition to the jurisdiction conferred on the magistrate under section 2(a) and Section 177 of Cr.P.C. It was further contended that, the jurisdiction conferred under the Muslim Woman Act was not confined to the court wherein the divorced woman is residing, but supplements the jurisdiction conferred on the Magistrate under the Code of Criminal Procedure. 5. Smt.Leela, learned counsel for the petitioner amplified her contention referring to the other relevant portion including one under section 125 Cr.P.C.and under the Protection of Women From the Domestic Violence Act, 2005. It was contended that under the Domestic Violence Act, the jurisdiction so conferred under section 2 (I) means, the judicial Magistrate of the First class, or as the case may be, the Metropolitan Magistrate exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. Referring to section 125 of Cr.P.C., it was contended that it confers jurisdiction on the courts mentioned therein. Hence, it was contended that the jurisdiction of a magistrate exercising jurisdiction under the Muslim Woman Act cannot be considered as Crl.R.P.No.169/2018 4 conferring restrictive jurisdiction to that Magistrate within whose jurisdiction the petitioner was residing and not before any other court, to suit her convenience is illegal. It was contended that, the statute gave discretion to the aggrieved person in choosing the proper court which had jurisdiction and necessarily, the Muslim Women Act, being beneficial legislation to protect the weaker section of the society, cannot have restrictive meaning,it was contended. It was further contended that, the Act narrows down the scope of jurisdiction and pins down the aggrieved person to the jurisdiction of the court wherein she is residing. 6. It appears that, most of the other statutes confer jurisdiction on courts wherein the parties are residing the respondent was residing or where the parties last resided together. Evidently, other statute conferred multiple choices regarding the jurisdiction and normal principle that is being adopted is that aggrieved person will have to go in search of opposite side and seek relief there unless the jurisdiction wherein the cause of action either in whole or part arose also are conferrd with jurisdiction. It is not a question of granting multiple choice of jurisdiction, but granting most effective jurisdiction and causing least inconvenience to the parties concerned, Considering this aspect, I am inclined to hold the Protection of Women from Domestic Violence Act confers most effective choice that is available to a Crl.R.P.No.169/2018 5 party, thereby to institute proceedings in that court, within whose jurisdiction she resides. 7. Unlike other statutes which provide for the claimant choosing opposite side, the Mulsim Women Act confers jurisdiction on the court wherein she resides. It seems that, it was based on a premise that it will be best choice available to the aggrieved person. 8. Learned counsel for the petitioner relied on the decision of the Division Bench in **Sheeba Pulikkal v. Shoukath Ali(2011** **(4) KLT 746)** wherein this court had occasion to consider the jurisdiction of the court exercising power under the Muslim Women(Protection of Rights on Divorce) Act. It was held that jurisdiction of Civil Court and consequently family court is not ousted by the enactment of the above Act. 9. In **Avaran Koya v. Mariyam ( 1993 (1) KLT 65),** the Division Bench of this Court had held that to constitute residence, it is not necessary that the divorced woman should have her own residence within the territorial limits of the court . So long as there is an intention to stay for an indefinite period at a place, that place should be treated as her residence, to consider the question of jurisdiction. 10. Both the decisions have no application to the issue involved in this case. The Former decision involves the question Crl.R.P.No.169/2018 6 whether the Family Court is ousted of its jurisdiction. The decision in Avaran Koya's case deals with the scope of term residence, whether it implies only those courts within whose jurisdiction the claimant resides. 11. Having considered the above, I am inclined to hold Muslim Women (Protection of Rights on Divorce) Act being a special statute will be covered by the restrictive definition as provided under section 2 (c) though its ramification will be of wider nature. The jurisdiction cannot be conferred by choice of parties and being a special statute it will override the general statute. The petition is dismissed upholding the impugned order. Sd/- ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.R.P.No.169/2018 7