Delhi District Court
Abhiram Balusu vs Sunaina Rao Kommineni on 31 October, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS:
NEW DELHI
CA 257/2023
Abhiram Balusu
S/o Sh. B.K Choudhary
R/o 3310, Sunland,
Dr Chandler, Arizona,
USA-85248
..........Appellant
Vs.
Sunaina Rao Kommineni
D/o Mr Sambasiva Rao Kommineni
R/o Flat No 170 Pocket B
DDA Flats, Sukhdev Vihar.
...........Respondent
Instituted on : 18.08.2023
Argued on : 21.10.2023
Decided on : 31.10.2022
JUDGMENT
1. Vide this order, this Court shall adjudicate the Criminal Appeal filed by appellant seeking to set aside impugned order dated 24.06.2023 passed by Ld. MM/SED Saket Courts, whereby an application u/s 25 of DV Act filed by the appellant herein, seeking dismissal of the complaint and recalling of summoning order dated 17.02.2023, was dismissed by the Ld. Trial Court.
CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 1/15
IMPUGNED ORDER FACTS
2. The facts of the case as alleged by the respondent complainant are hereby succinctly recapitulated: It was alleged that the respondent got married to the appellant 9 years ago on 15.08.2013 at Vijayawada, Andhra Pradesh, India and immediately thereafter they both shifted to Arizona, United States of America. They have been residing in the US since 2013.A son was born to them in the US, who is currently about 5 years old. It was alleged by the complainant that since the beginning of their marriage, she was subjected to domestic violence by her husband, the appellant. Allegations of financial, social, physical and psychological torture have been levelled qua the appellant. It has been alleged inter alia that she and her son were kept hostage by the appellant in Chandler, Arizona for the last four years, and they were rescued from his clutches on their arrival to India on 25.11.2022 at IGI Airport, New Delhi.
3. It was alleged that the family made plans to travel to India, and in pursuance thereof, landed at Delhi airport via flight on 25.11.2022 to take a connecting flight onward to Vijayawada, Andhra Pradesh.. At the airport, the respondent expressed her desire to remain in Delhi, and not go to Vijayawada. Upon the appellant's refusal to allow her to so remain, she raised an alarm. Her father, who was also present at the airport, made a call to the Airport Police Cell vide complaint/diary no. 6162365 as the CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 2/15 appellant refused to hand over the passport and other relevant documents of their son to her. However, after the intervention of the local police, the documents were released to the respondent. Thereafter, the respondent and appellant went off their separate ways, and since then the respondent and her son started residing in the parental home of the respondent in Delhi. It is under these circumstances that a complaint under Section 12 Protection of Women from Domestic Violence Act, 2005 ('DV Act') came to be filed by the respondent before the Ld Trial Court.
4. Vide order dated 04.01.2023, upon filing of the petition u/s 12 DV Act, the Ld Trial Court requisitioned the DIR (Domestic Incident Report) from the Protection Officer, and listed the matter for consideration qua summoning for 17.02.2023. On 17.02.2023, the Ld Trial Court heard the arguments on summoning, and opined that since the averments in the petition prima facie reflected sharing of a domestic relationship by the aggrieved person in a shared household with the husband, there was sufficient material on record to summon the husband. The Ld Trial Court also observed that the complainant was residing in the territorial jurisdiction of the Court and therefore, it had the requisite territorial jurisdiction to entertain and decide the petition. Since the Ld Counsel for the husband was present in Court, the summons was served upon the Counsel. Matter was thereafter listed for further proceedings on CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 3/15 31.05.2023.
5. On 31.05.2023 the appellant herein moved an application u/s 25 DV Act seeking dismissal of the case.
FINDINGS OF THE LD TRIAL COURT
6. After hearing arguments of both sides, the Ld Trial Court passed the impugned order dated 24.06.2023 dismissing the application u/s 25 of DV Act filed by the appellant herein, seeking dismissal of the complaint and recalling of summoning order dated 17.02.2023. Ld Trial Court held that specific averments qua commission of domestic violence have been made in the petition, which are sufficient to prima facie establish commission of a case of domestic violence. It was further opined by the Ld Trial Court that the Court had territorial jurisdiction to try the matter u/s 27 of the DV Act, as the respondent is temporarily residing in her parental home in Delhi. The present appeal has been filed assailing the above order dated 24.06.2023.
CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT AND RESPONDENTS
7. Ms Geeta Luthra, Ld. Senior Advocate for the appellant submitted that a perusal of the pleadings would reveal that no specific allegations have been made against the appellant. It was submitted that all the allegations are omnibus in nature, and at best, vague. It was also submitted that false allegations have been levelled qua the appellant. Qua the issue of CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 4/15 jurisdiction, it was contended that the parties did not share a household within the territorial jurisdiction of India nor was any domestic violence perpetrated in India, and therefore, the Ld Trial Court did not have the requisite jurisdiction to entertain the present complaint. Ld. Counsel thus submitted that impugned order dated 24.06.2023 passed by Ld. Trial Court ought to be set aside.
8. To buttress her contentions, Ld. Counsel for appellant placed reliance on following judgments:
1. Afia Rasheed Khan Vs Dr Mazharuddin Ali Khan 2021 SCC Online Bom 4605
2. Prashant and Another Vs Sau Madhuri and Ors 2018 SCC Online Bom 21229
3. Chaitanya Singhania Vs Khushboo Singhania 2021 SCC Online Mad 8731
4. Dr P. Pathamanthan Vs Tmt V Monica 2021 SCC Online Mad 8731
5. Jaydipsinh Prabhatsinh Jhala Vs State of Gujarat 2009 SCC Online Guj 12070
6. Shyamlal Devda & Ors Vs Parimala (2020) 3 SCC 14
7. Gajanand & Ors Vs State of Karnataka & Anr Crl. P No 101287 of 2017
8. Kunapareddy @ Nookala Shanka Balaii Kunapareddy Swarna Kumari & Anr (2016) 11 SCC 774
9. P. Ganesan Vs M Revathy Prema Rubarani C.R.P.PD (MD) No 909/2021
10. Latha P.C. & Anr Vs State of Kerala & Sheeja K (2020) SCC Online Ker 4238
11. Rajesh & Ors Vs Station House Officer Adoor Police Station 2023 (1) KHC 103
12.Harband Lal Malik Vs Payal Malik (2010) SCC Online Del 2516
13. Nagin nagraj Lalchand Dhanresha Vs Purnima Nagin Dhanresha Crl. W.P 6402/2019
14.Shri K.M Revanasiddeshwara V Smt K.M Shylaja 2012 SCC Online Kar 1733
15.Pradip & Ors v State of Maharashtra Cr Appl No. 1460 of 2021 CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 5/15
16.Sudama Dutt Sharma v State of Rajasthan 2016 SCC OnLine Raj 8192
9. Per contra, Ms Charu Dalal, Ld. Counsel for respondent submitted that the Ld. Trial Court has correctly appreciated the factual matrix of the case and has rightly summoned the appellant. It was submitted that the respondent ought to be provided an opportunity to elaborate on the incidents of domestic violence inflicted upon her, and the same can be so done during the trial. Qua jurisdiction, it was submitted that the Ld Trial Court correctly interpreted Section 27 of the DV Act to hold that the respondent was temporarily residing within the jurisdiction of the Court.
10.To fortify her stance, Ld. Counsel for respondent placed reliance on following judgments:
1. Sunita Kumar Kashyap Vs State of Bihar Criminal Appeal 917 of 2011
2. Rupali Devi Vs State of UP Criminal Appeal no 71/2012
3. Hima Chugh Vs Pritam Ashok Sadaphule & Ors Crl M.C 3273/2011
4. Shaymlal Devda Vs Parimala Criminal Petition no 5959 of 2015
5. Neelima Akhtar Vs Mohammad Zuber Farooqi & Anr Criminal Writ Petition no 3398 of 2017
6. Sumeet Vs Himani Sumeet Ninave Nee Criminal Application (APL) 1576 of 2022
7. Vandana Vs T Srikant and Krishnamachari 2007 (50 CTC 679
11.Submissions heard. Records perused.
DECISION
12.The impugned order of the Ld Trial Court has been assailed on two counts viz. on the ground that the Court did not have the jurisdiction, and CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 6/15 the that in absence of specific allegations, the appellant ought not to have been summoned.
ISSUE QUA JURISDICTION
13. To adjudicate upon the issue of jurisdiction, it would be apposite to firstly peruse Section 27 of the DV Act, which is reproduced hereunder:
27.(1)Jurisdiction.The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act
14.The highlighted portions above make it pellucid that a complainant has to prima facie demonstrate that she was temporarily residing within the local limits of the Court where the matter has been filed. It was emphasized by Ld Senior Counsel for the appellant that the respondent was not on a temporary visit to India, rather it was a casual visit. She placed reliance on inter alia the following extracts of Afia Rasheed Khan v. Mazharuddin Ali Khan, 2021 SCC OnLine Bom 4605:
"16. Thus, averments in application suggest, that applicant is well-educated person; she is financially sound; her parents are in business. In consideration of her background it is difficult to accept her contention or that she could not seek protection order at Hyderabad. In other words, application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai. On the contrary the chronology of the events do suggest, that the applicant engineered the cause of action with an intention to file CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 7/15 case and confer jurisdiction upon the Magistrate. In Ramesh v. State of Maharashtra [Ramesh v. State of Maharashtra2011 SCC OnLine Bom 691 : 2011 Cri LJ 4074] , the learned Judge of this Court has made distinction between temporary residence and casual visit. In para 5 it was held that:
5. In support of the petition, it is submitted on behalf of the petitioners that there is distinction between temporary residence and casual visit. The expression 'reside' implied something more than 'stay' and implied some intention to remain at a place and not merely to pay it a casual visit. The question of residence is required to be decided as to whether the party claiming residence, permanent or temporary, has an intention to stay at a particular place then alone it could be said that the party is residing at that particular place, either permanently or even temporarily.
The question as to whether aggrieved person has made a particular place an abode, permanent or temporary, is a question to be decided with reference to facts of each case. It is apprehended that if liberal construction is placed upon the provisions made under Section 27 of the Act to allow even casual visit of the place to claim that the place is his or her temporary residence within the meaning of Section 27 of the Act, 2005, then it may lead to abuse of the legal process as the aggrieved person may choose to harass the other party by choosing any place where he or she may be a casual visitor. Reference is made to the ruling in Jagir Kaur v. Jaswant Singh [Jagir Kaur v. Jaswant SinghAIR 1963 SC 1521] . The Supreme Court was dealing with the question relating to the term 'resides' in respect of petition by a wife against her husband for maintenance. Considering the dictionary meaning of the word 'resident' the Supreme Court has observed that the word means both a permanent dwelling as well as temporary living in a place. It is capable of different meanings including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it one thing is obvious that it does not include casual stay or a flying visit to a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. The expression 'reside' implies something more than a casual stay and implies some concrete intention to remain at a particular place but not merely to pay a casual or flying visit. In other words, it is always something more than a casual visit or casual stay at a particular place to assign status to the person as 'temporary resident' of a particular place is contemplated under the law"
CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 8/15
15.The extracts highlighted hereinabove firstly reflect that in the above case the complainant was not forced to leave her matrimonial home, which is not so in the present case as averments have been made herein that on account of domestic violence she took the first chance to separate herself from her husband, which she could do so in India only. Moreover, the above verdict is also inapplicable to the case at hand inasmuch as the intention of the complainant to stay at her parent's house in Delhi is amply demonstrated by the fact that she is still here. It cannot be termed as a casual visit, at least not at this juncture. Arguendo, that she did not initially have the intention to reside at her parent's place, while the trip was being contemplated in US, and the visit may have been planned to be a casual visit. However, there was nothing to prevent her from subsequently having a rethink i.e forming an intention to ultimately temporarily reside at her parent's place, probably in view of the altercation at the Delhi airport. That incident may have very well been the proverbial last straw in the camel's back. In any case, these are matters to be adjudicated during trial, where the true position will be eventually be brought to the fore.
16. De hors the above prima facie observation, it would also be apt to refer to certain observations of the Hon'ble Superior Courts, which this Court is bound to abide by. In Rupali Devi (supra), it was observed as thus: CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 9/15
"15.The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 Cr.P.C which would squarely be applicable to the present case as an answer to the question raised.
16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code".
17.The above verdict is reflective of a blooming jurisprudence, which basically highlights that an expansive interpretation has to be given to the term jurisdiction, in order to give full effect to the laws which have CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 10/15 been enacted for the amelioration of women in our country. During the course of arguments, Ld Counsel for the appellant had vociferously argued that the parties did not have a shared household in India nor did any domestic violence take place India. This contention cannot be countenanced in view of the mandate of Hima Chugh (supra). In the said case, a plea qua want of jurisdiction was taken citing the fact that domestic relationship, domestic violence as well as shared household continued to be in U.K. However, the Hon'ble Delhi High Court dismissed these contentions by unequivocally observing as hereunder:
"6.Thus, the Court of Judicial Magistrate of the First Class or the "MM' within the local limits of which the aggrieved person permanently or temporarily resides or carries on business is competent to entertain the complaint under the provisions of D.V. Act. It is not in dispute that at the time of the filing of the complaint under the D.V. Act the Petitioner was residing with her parents within the jurisdiction of the learned M.M. of course, a non-molestation order was obtained by the Petitioner by approaching Brent Ford County Court under the Family Law Act, 1996. That by itself was not sufficient to exclude the jurisdiction of the learned "MM' if she was otherwise possessed jurisdiction by virtue of Section 27 of the D.V. Act. The learned "MM" also erred in holding that the since the offence arising out of violation of the protection order cannot be tried in Delhi Courts, the learned "MM" will not have any jurisdiction is also without any substance. The object of enacting D.V. Act was to provide a remedy under the civil law to women who are sisters, widows, mothers, single woman in addition to a wife or a female living in a relationship in the nature of marriage. However, the protection order could be obtained only against a person who was in domestic relationship with the person aggrieved.
7.In Mohit Yadam v. State of A.P., 2010 Cri.L.J. 3751 while dealing with the object and scope of the D.V. Act, it was observed by Andhra Pradesh High Court as under:
21. The object of the Domestic Violence Act, 2005 is to provide for effective protection of the rights guaranteed CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 11/15 under the Constitution, of women, who are victims of violence of any kind occurring within the family. The Act only confers right to remedy to the wives and women in, domestic relationship. A machinery is provided for achieving the said object, viz., it is the duty of a Police Officer, Protection Officer, Service Provider and the Magistrate to inform the aggrieved person of her right to make an application for one or more reliefs under the Act, availability of services of Service Provider and Protection Officer, right to avail free legal services. Similarly, a Magistrate is under obligation to fix the first date of hearing of the application ordinarily within three days of its receipt and shall endeavour to dispose of every application within sixty days of the first hearing. The Domestic Violence Act, 2005 provides for comprehensive and speedy relief within a set time frame. Where aggrieved person's right is invaded or destroyed or likely to be destroyed, the Domestic Violence Act, 2005 gives a remedy by interdict to protect it or damages for its loss, etc 'Domestic Violence' is any act of physical, mental or sexual violence and any attempted such violence, as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or had family or kinship ties or cohabit or dwell in the same house. It infringes the basic right to feel comfortable within the confines one's house to all domestic violence victims is not a home. A home where one can live without any fear or insecurity. It is with this in mind, the new Protection of Women from Domestic Violence Act was passed.
8.Thus, simply because the Petitioner returned to India either temporarily or permanently it will not disentitle her to invoke the provisions of the D.V. Act if she has a case on merits. Thus, dismissing the complaint for want of jurisdiction by the learned "MM' and its approval by the learned ASJ was illegal and cannot be sustained."
18. Thus, in the broader scheme of things, coupled with the fact that the respondent is now temporarily residing with her parents in Delhi, it cannot be gainsaid that the Ld Trial Court did not have jurisdiction to entertain the present complaint.
ABSENCE OF SPECIFIC ALLEGATIONS IN THE PETITION
19. It was vehemently contended by Ld Senior Counsel for the appellant that CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 12/15 the petition of the complainant is vague, and contains omnibus allegations. In light of such equivocal pleadings, it was remonstrated that the complaint ought to have been dismissed in limine. To fortify her submissions, Ld Senior Counsel placed reliance on Pradip (supra):
"On giving conscious thought to the nature of complaint by respondent no. 2, it is revealed that there are sweeping, general allegations against all the applicants herein. As to when alleged episodes occurred and who amongst the eight accused-applicants played which role is not specified in the complaint. Allegations levelled are apparently omnibus and vague in nature as there are no details or particulars of nature of ill treatment except alleging beating and abuse, that too at the sole instance of husband. However, even such allegations against husband are omnibus in nature."
20.Reliance was also placed on inter alia Sudama Dutt(supra) to substantiate her stance. However, these contentions of the appellant too cannot be sustained. The facts of these cases are also distinguishable as in the cases referred, the whole family was roped in, which is conspicuously absent in the present case. Moreover, a perusal of the allegations at a first blush would seem to lend credence to the assertions of Ld Counsel of the appellant that they are vague, however upon a closer examination, the stance gets belied. The allegation of a call being made from the Delhi airport on 25.11.2022 does find corroboration from the GD No. 0061A, PS IGI Airport, which was albeit filed, yet which was requisitioned by this Court in order to ascertain the veracity of claims put forth by both sides. The allegation of an incident back in Arizona was not gone wholly unaddressed, and a police call and preliminary inquiry was conducted, CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 13/15 even though the same too was filed. Furthermore, she has averred that the appellant was controlling her food habits and has been physically abusing her. It needs to be inquired into, that if everything was hunky dory in Arizona, then why did she suddenly choose to leave the matrimonial home and take protection under the aegis of her parents. The respondent has to be given an opportunity to elaborate upon, and to specify the allegations. For that it is imperative that she be allowed to step in the witness box, and the same can be done during trial. At the stage of summoning, the above averments, of even a single instance, is sufficient enough to initiate proceedings qua the appellant husband.
21.It was also alleged that the complainant made false averments in her petition qua that fact that she was not allowed to work when , in fact, the appellant had prepared an EAD (employment authorization) card for her, or that it is improbable to believe that she was kept captivated in her house despite the fact that her parents were also staying in Arizona with them etc. At the stage of summoning, the truth or falsity of the contentions cannot be delved into. These are all matters of trial, and the veracity of these claims can be adjudged on the touchstone a full-fledged trial only. It is too premature a stage to discard the asseverations of the respondent in toto.
CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 14/15
CONCLUSION
22. Ergo, in view of the aforesaid discussion, this Court finds no infirmity in order dated 24.06.2023 passed by Ld. MM, South-East, Saket Courts New Delhi, and thus the present Criminal Appeal filed by appellant is hereby dismissed.
23.TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information/ compliance.
24.Appeal file be consigned to record room after due compliance.
25. Order be uploaded on official website of District Courts. Announced in the open court on 31th October, 2023 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi CA 257/2023 Abhiram Balusu Vs Sunaina Rao Kommineni Page No. 15/15