Gian Chand vs Kamlesh Devi

Arun Kumar Goel, Judge.

This is an application for transfer of proceedings pending before SubJudge, Kistwar to any Court at Jammu. Respondent initiate case under

Section 488 of the Code of Criminal Procedure for the grant of maintenance at Kistwar against the petitioner.

According to the averments made in the petition, parties were married in August, 1996 and after marriage lived as husband and wife in quarter

No. 404, Muthi Camp, Jammu for sometime. Petitioner further claims himself to be a registered Migrant living in the said Camp. During the month

of July, 1997, while petitioner was away to Delhi, respondent taking advantage of his absence left his house and went to Kistwar removing all the

belongings property, etc., for which fact former come to know on return from his neighbours. Further case of the petitioner is that no proceedings

could be taken up against him at Kistwar for want of jurisdiction. Besides this it is also the case of the petitioner that though he has engaged a

lawyer at Kistwar, but himself is not in a position to go there because of threats extended to him by the respondent and he apprehends that in case

he is made to go to attend the proceedings at Kistwar, he is likely to suffer some physical harm, because respondent is capable of doing so. In this

background, present petition has been filed.

Claims made by the petitioner has been seriously contested on behalf of the respondent, who has filed objections to the transfer application and

have conrtroversed all the pleas of the petitioner. In addition to this, it has also been stated by the respondent that Kistwar Court has got

jurisdiction to adjudicate her claim under Section 488(1) of the Cr.P.C. Further case of the respondent is that she has been forced to migrate to

her parental house at Chinigam in Tehsil Kistwar. Similar application has been filed before the learned Sessions Judge, Bhadarwah, which was also

dismissed. This fact is pleaded in preliminary submission No. 3 of the objections filed by the respondent.

For the purpose of this Revision Petition, Section 488(8) Cr. PC is material, which is to the following effect:

488(8) proceedings under this Section may be taken against any person in any district where he resides or is, or where he last resided with his

wife, or, as the case may be, the mother of the illegitimate child"".

As per this provision, the proceedings under Section 488 can be initiated against a husband in any District where he resides, or is, or where he last

resided with his wife. This is the relevant provision in the present case. As per record, petitioner resides at Jammu as noted above at Muthi Camp.

This was the position in the past as also he is residing there. Then the question that needs to be examined is whether the petitioner over last resided

with the respondent at Chinigam as claimed by the later. In case answer is in the affirmative, then the said Court would have jurisdiction. According

to the averments made in the application, respondent was living with the petitioner at Jammu, when in the month of July, 1997, she left her

matrimonial home in the absence of the petitioner removing all her belongings, etc. In this context, it may be appropriate to notice that in Section 19

of the Hindu Marriage Act, 1955 identical words have been used.

Prior to coming into force of the Code of Criminal Procedure, 1973 (2 of 1974), (Central Act) provisions of Section 488 of the State Act were

parimateria as existed in the Central Act of 1998. However, keeping in view the purpose of providing speedy, as well as in a summary manner

maintenance to the neglected wife and children, etc., Section 126 of the Code of Criminal Procedure has been brought in the Central Act which is

to the following effect:

126 Procedure.(1) Proceedings under Section 125 may be taken against any person in any district

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed

to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for

summonscases.

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully

avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case exparte and any order so

made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including

terms as to payment of costs of the opposite party as the Magistrate may think just and proper,

(3) The Court in availing with applications under Section 125 shall have power to make such order as to costs as may be just"".

Learned counsel appearing for the petitioner has placed reliance on AIR 1963 SC 1521, Mst. Jagir Kaur and another. Appellants Vs. Jaswant

Singh, Respondent in support of his contention. While considering the words ""resides"" last resided and is, the Supreme Court observed as under:

The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that

resides"" in the subsection means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more

than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the

length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the

words used, and the construction placed by decided cases thereon, we would define the word ""resides"" thus: a person resides in a place if he

through choice makes it his abode permanently or even temporarily, whether a person has chosen to make a particular place his abode depends

upon the facts of each case. Some illustrations may make our meaning clear: (1) A, living in a village or goes to a nearby town B, to attend a

marriage or to make purchases and stays there in a hotel for a day or two. (2) A, a tourist, goes from place to place during his peregrinations and

stays for a few days in each of the places he visits. (3) A, a resident of a village, who is suffering from a chronic disease, goes alongwith his wife to

a town for medical treatment, takes a house and lives there for about 6 months. (4) A, a permanent resident of a town, goes to a city for higher

education, takes a house and lives there, alone or with his wife, to complete the studies. In the first two cases, A makes only a flying visit and he

has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he ""resides"" in the places he visits.

In the last two illustrations, though has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has

gone for medical relief in one and studies in the other his temporary abode or residence. In the last two cases it can be said that though he is not a

domicile of those places, he ""resides"" in those places.

(9). The cognate expression ""last resided"" takes colour from the word ""resides"" used earlier in the subsection. The same meaning should be given

to the word ""resides"", that is to say, if the word ""resides"" includes temporary residence, the expression ""last resided"" means the place where the

person had his last temporary residence. But it is said that even on the assumption, the expression can only denote the last residence of the person

with his wife in any part of the world and that it is not confined to his last residence in any part of India. If the words ""where he last resided with his

wife"" are construed in vacuum the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide

meaning to the said expression we would be giving extra territorial operation to the Code of Criminal Procedure, Section 2(1) of the Code extends

the operation of the Code to the whole of India except the States of Jammu and Kashmir; that is to say, the provisions of the Code, including

Section 488(8) thereof have operation only throughout the territory of India, except the States of Jammu and Kashmir. If prescribing the limits of

jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India. It

cannot obviously mean his residing with her in a foreign country, for an Act cannot confer jurisdiction on a foreign court. It would, therefore, be a

legitimate construction of the said expression if we hold that the district where he last resided with his wife must be a district in India.

(11). The third expression is the word ""is"" it is inserted between the words ""resides"" and ""last resided"". The word, therefore, cannot be given the

same meaning as the word ""resides"" or the expression ""last resided"" bears. The meaning of the word is apparent if the relevant part of the

subsection is read. It reads: ""Proceedings under this section may be taken against any person in any district where he............. is......"".

The verb ""is"" connects in the context the presence or the existence of the person in the district when the proceedings are taken, it is much wider

than the word ""resides"": It is not limited by the animus manendi of the person or the duration or the nature of his stay. What matters in his physical

presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to

reach a person, who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to

a foreign country, but returns to that district on a neighbouring one on a casual or a flying visit. The wife can take advantage of his visit and file a

petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the

move, the wife can catch him at a convenient place and file a petition under Section 488 of the Code. She may accidentally meet him in a place

where he happens to come by coincidence and take action against him before he leaves the said place. This is a salutary provision intended to

provide for such abnormal cases. Many illustrations can be visualized where the utility of that provision can easily be demonstrated"".

Further reliance was also placed on AIR 1973 Allahabad 94, Dr. Smt. Supriya, Appellant Vs. Dr. Vasudev Dang, Opposite Party, which was

examined by the said Court in the light of Section 19 of Hindu Marriage Act, 1955.

'On the other hand, Shri Kotwal, learned Senior Counsel placed reliance on 1996 SLJ 97, Dr. Gh. Rasool Malik Vs. Mst. Amina and Others.

On the basis of this judgment of the learned Single Judge of this Court, it was pointed out by the Senior Counsel that the Court at Kistwar has got

the jurisdiction, therefore, the petition is liable to be dismissed.

So far judgment of this Court reported in 1996 SLJ 97 (supra) is concerned, it is not attracted to the facts and circumstances of the present

case. After the order had been passed by the Magistrate of Baramulia District, where initially the husband had put up the contest after filing his

reply had absented himself and while contesting the claim of the wife, jurisdiction of the Court was also disputed. Thereafter, the husband chooses

to absent from the proceedings. This resulted in passing of the exparte order under Section 488 of the Code of Criminal Procedure. During the

course of proceedings for setting aside the exparte, plea of jurisdiction was raised. In this background, learned judge by invoking Section 531 of

the Cr.P.C held that it is a curable defect and did not vitiate the order. This is a judgment on its own facts and has no relevance so far controversy

in the present case is concerned, therefore, it does not in any manner advance much less help the case of the respondent.

So far the case of the petitioner is concerned, there is nothing prima facie brought on record by the respondent as to on what basis the petition

has been filed by her in the Court at Kistwar. Unless it could be shown that the petitioned was either residing there or last resided with the

respondent within the jurisdiction of said Court, it cannot be said that the Court at Kistwar had the jurisdiction. It may not be out of place to notice

here that as per the averments made in the petition, parties last resided at Muthi Camp, Jammu, where the petitioner claims that wife left in his

absence, on the other hand, wife says that she was forcibly made to leave the house. There is nothing to suggest that the petitioner either resides or

was living at the present within the jurisdiction of Kistwar Court. Here it may not be out of place to mention that residence may not be of

permanent nature, it can be of short duration also in the nature of a temporary residence. So far the term 'residence' is concerned, it connotes the

intention of the person concerned for a reasonable time, but in any case it does not have to be either a casual or flying visit.

For the foregoing reasons, it is held that the Court at Kistwar does not have jurisdiction in the matter in view of Section 488 (8) (supra) of Cr. P

C and thus it lacks jurisdiction to entertain the petition. On the other hand, on her own showing, petitioner resided at Muthi Camp, Jammu, as such,

the Court at Jammu has got the jurisdiction to try and determine the proceedings. Consequently, it is ordered that proceedings under Section 488

of the Cr.RC titled as Smt. Kamlesh Devi Vs. Gian Chand, pending in the Court of SubJudge, Kistwar shall stand transferred to the Court of

Forest Magistrate Jammu, where the parties through their learned counsel are directed to appear on 27011999. Copy of this order be sent to the

Court at Kistwar with a direction to transmit the record to the Court at Jammu. Similarly, copy will also be sent to the Court at Jammu with a

direction to take the case on its file and dispose it of in accordance with law expeditiously.