Smt. Seema Nayak vs H. Rajesh Nayak and Sri. Raman Nayak

V. Jagannathan, J.—Heard both sides finally in respect of the petition filed, calling in question the order passed by the court below in Crl. Misc. No. 50/10, by which order the Petitioner herein was directed to file the present petition u/s 12 of the Protection of Woman from Domestic Violence Act, 2005 (''the Act'' for short) before the jurisdictional Court namely at the place where she was residing at Udupi.

Petitioners Counsel argued that the impugned order is contrary to the provisions, of Section 27 of the Act and stressing the word ''temporary residence'' and also relying on the decision of the Delhi High Court in the case of Sharad Kumar Pandey v. Mamta Pandey, submission made is that the Petitioner is now residing with her sister at Bangalore and therefore, the Petitioner has every right to file the petition beforethe Court at Bangalore. In support of the above submission concerning the Petitioner residing at Banglore. learned Counsel also referred to various documents filed along with the petition apart from touching upon the merits of the case.

On the other hand, Sri. S.B. Pavin, learned Counsel for the Respondents submitted that against the order passed by the Court below which is impugned herein, an appeal lies to the Sessions Court as per Section 29 of the Act and therefore, this petition is not maintainable. Learned Counsel also referred to the merits of the case by way of reply to the arguments of the Petitioner''s Counsel and also reference is made to certain documents to point out that the Petitioner is residing at Udupi and even the Court summons were also received by the Petitioner at Udupi i.e., in respect of G & W.C. Nos. 1/11 & 2/11. Apart from this submission, he also contended that the Petitioner has come to Bangalore only for the purpose of filing this case according to the very stand taken by the Petitioner in her petition.

Though both sides have argued thus concerning the Petitioner''s residence, in view of Section 29 of the Act, providing for an appeal to the Sessions Court against the order of the Magistrate, in this case, the petition u/s 482 of Code of Criminal Procedure cannot be entertained and the Petitioner therefore has to be exhaust the remedy of the appeal as provided u/s 29 of the Act It is under these circumstances, I refrain from touching upon the submissions made by the learned Counsel for the parties as regard to the residence of the Petitioner.

Since the appeal provision also gives time limit of 30 days to prefer the appeal and as such, the parties are not before this Court in this petition u/s 482 of the Code of Criminal Procedure, it is made clear that limitation shall not come in the way of the Petitioner in approaching the Sessions Court by way of an appeal and the order madeby the Magistrate which is impugned herein is at Annexure''s-L.

As far as the submission made by the Petitioner''s Counsel with regard to the stay of proceedings in respect of the 2nd Respondent pursuant to the petition filed by him before this Court for transfer of the case, following the said transfer petition being withdrawn by the 2nd Respondent herein the interim stay (sic) also does not survive.

In the light of the rival contentions put forward, the learned Sessions Judge before whom the Petitioner is now directed to file the appeal shall dispose of the same at the earliest.

With the above said observations, petition is disposed of.