The Single Bench of Justice Rajnesh Oswal while setting aside orders passed by Additional Sessions Judge, Budgam (Appellate Court) and Chief Judicial Magistrate, Budgam (Trial Court) wherein the application filed by the petitioner under Section 12 of the Domestic Violence Act (hereinafter referred to as ‘DV Act’) was dismissed on account of lack of territorial jurisdiction, held that if the trial court lacked the territorial jurisdiction, the application ought to have been returned to the petitioner for its presentation before the court having the territorial jurisdiction, and that the dismissal of the application under the DV Act on the ground of lack of territorial jurisdiction would defeat the very purpose of expeditious disposal of the proceedings under the Act. 

The main contention of the Petitioner before the High Court was that the application could not have been dismissed on the ground of lack of territorial jurisdiction as the same does not go to the root of the matter and the trial court ought to have returned the application filed under the DV Act to the petitioners for filing the same before the appropriate court. However, the Respondents raised objections vis-a-vis the maintainability of the Petition under Article 227 of the Constitution, arguing that the scope and ambit of jurisdiction under Article 227 of the Constitution of India is very limited and the High Court while exercising its power under Article 227 of the Constitution of India cannot re-appreciate the evidence and upset the concurrent findings of fact recorded by the two courts. 

The Court on evaluation of the facts of the case, as well as the scheme of the DV Act observed, “Though the DV Act is absolutely silent in respect of the power of the Magistrate lacking territorial jurisdiction to entertain and try the application under the DV Act, to return the application to the aggrieved person for its presentation before the court having the territorial jurisdiction to adjudicate the same but Section 28 of the said Act, as mentioned above, permits the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 of the Act.”

The Court further observed that it would be a travesty of justice if the provisions of DV Act are interpreted in a manner so as to hold that the Court exercising the jurisdiction under the DV Act lacks the power to return the application for its presentation before the court of competent jurisdiction on account of lack of territorial jurisdiction to entertain and try the application, more particularly in view of subsection (2) of Section 28 of the DV Act. 

Further, with respect to maintainability of the Petition under Article 227, the Court held that if the trial court had lacked the territorial jurisdiction, the application ought to have been returned to the petitioners for its presentation before the court having the territorial jurisdiction. The failure on the part of learned trial court to return the application to the petitioners for its presentation before the court of competent jurisdiction shall fall within the meaning of ‘jurisdictional error’ and, as such, amenable to the jurisdiction of this Court under Article 227 of the Constitution of India. 

Therefore, the High Court while setting aside the impugned orders, directed the Court of Chief Judicial Magistrate to return the Application to the Petitioner for its presentation before the Court having the territorial jurisdiction to adjudicate the matter.