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Judgment
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.
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.
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.
On the other hand, learned counsel for the respondent No.3 submitted that the respondent No.3 was treated with cruelty and she was thrown out of
matrimonial home and was subjected to domestic violence and is residing in Gawahati in District Kamrup and, therefore, under Section 27 of the Act,
initiated the proceeding before the Competent Court. It is further submitted that this Court has no territorial jurisdiction to entertain the writ petition and
to quash the order which is passed by the Court in Guwahati and in fact the petitioners ought to have challenged the same before the High Court of
Judicature at Guwahati. Learned counsel for the respondent No.3 has also invited the attention of this Court to paragraph 78 of the decision in the
case of Durgesh Sharma v. Jayshree, AIR 2009 SC 285
I have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that every Court
has its own local or territorial limits beyond which it cannot exercises its jurisdiction. The territorial jurisdiction of a High Court is limited to the territory
within which it exercises its jurisdiction and not beyond it. In the instant petition, the petitioner have assailed the validity of the order passed by Judicial
Magistrate Ist Class, Kamrum, Guwahati in a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of the
State of Jammu and Kashmir. Before proceeding further, it is apposite to take note of Section 103, Section 104 of the Constitution of the State of
Jammu and Kashmir as well as Article 226(2) of the Constitution of India which read as under:
“103. Power to issue certain writs.- The High Court shall have power to issue to any person or authority, including in appropriate cases any
Government within the State, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
Certiorari, or any of them for any purpose other than those mentioned in clause (2-A) of Article 32 of the Constitution of India.
Superintendence and control of subordinate courts.- (1) The High Court shall have superintendence and control over all courts for the time being
subject to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court.
(2) Without prejudice to the generality of the foregoing provision, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and
pleaders practicing therein:
 Provided that any rules made, forms prescribed or tables settled under subsection (2) or sub-section (3) shall not be inconsistent with the
provision of any law for the time being in force, and shall require the previous approval of the Governor.â€
226: Power of High Courts to issue certain writs.Â
(1) ………….
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
Thus, Section 104 of the Constitution of the State of Jammu and Kashmir expressly empowers this Court to exercise the power of superintendence
and control over the Courts which are subjected to appellate or revisional jurisdiction and are subordinate to this Court. The Court of Judicial
Magistrate Ist Class, Kamrup Guwahati cannot be said to be a Court subordinate to this Court. Presumably in order to get over this difficulty and even
though there is express provision under Section 104 of the Constitution of State of Jammu and Kashmir, the Writ Petition has been filed under Section
103 of Constitution of Staet of Jammu and Kashmir. It is well settled in law that a High Court exercises jurisdiction throughout the State in which it is
located and its writs run only throughout the State and not beyond its territorial limits. The main object of the power is to keep the authorities or
Tribunals within their bounds and to prevent them from infringing the fundamental rights or other rights of the citizens. (See: Lt. Col. Khajoor Singh v.
Union of India and anr., AIR 1961 SC 532). This Court has no jurisdiction to quash the order passed by the Court situate in Guwahati, Assam.Â
The decision in the case of Navinchandra N. Majithia (supra) is of no assistance to the petitioners in the fact situation of the case as in the said
decision, the Supreme Court dealt with the question of quashment of FIR and held that since major part of the facts on account of which first
information report was lodged took place in Mumbai and investigation was also conducted in Mumbai. Therefore, the Mumbai High Court will have
the jurisdiction to exercise the power under Article 226 of the Constitution of India and Section 482 of the Code of Civil Procedure. However, in the
instant case, the petitioners are not seeking the quashment of the FIR but are challenging the order passed by Judicial Magistrate, Guwahati. Similarly,
the decision relied upon by the petitioners rendered by Calcutta High Court also has no application to the fact situation of the case as in the aforesaid
decision, the High Court while relying on Article 226(2) of the Constitution of India has held that since the part of cause of action had arisen within the
territorial limits of the High Court, therefore, the High Court of Judicature at Guwahati had the jurisdiction to deal with the case. It is pertinent to
mention here that Section 103 of the Constitution of State of Jammu and Kashmir and Article 226 of the Constitution of India cannot be said to be pari
materia provisions. Therefore, the aforesaid decision also does not apply to the fact situation of the case as the same has been rendered in the context
of Article 226 of the Constitution of India.Â
However, it will be open to the petitioners to appear in the proceeding before the Court of Judicial Magistrate, Ist Class, Kamrup (M) Guwahati or
to challenge the order before the High Court of Judicature at Guwahati, Assam, if so advised.
With the aforesaid liberty, the petition stands disposed of along with connected MP.