Kumutham and Another vs Kannappan

Special leave granted.

We have heard Shri Murlidhar, the learned counsel appearing for the appellants. This appeal arises out of a petition filed by the appellants u/s 125 Cr.P.C. against the respondent. Appellant No. 1 is the wife and appellant No. 2 is the daughter of the respondent. After considering the matter on merits the Judicial Magistrate, No. 7, Trichy, by his order dated February 5, 1993, has dismissed the said petition on the view that he had no jurisdiction to entertain the petition since the respondent was not residing within his jurisdiction. The Revision Petition filed by the appellants against the said order of the Judicial Magistrate was dismissed by the IInd Additional Session Judge, Tiruchirapally Division, by judgment dated April 26, 1994. Thereafter the appellants filed a petition u/s 482 Cr.P.C. before the Madras High Court which has also been dismissed by the impugned judgment. In the impugned judgment the High Court has held that it will be open to the appellants to file an application before the Judicial Magistrate at Thanjavur for maintenance and that the respondent will be precluded from taking any objection on the point of jurisdiction.

It appears that the courts below have failed to take note of the provisions contained in Section 126 of the Cr.P.C.. Under the said Section it is permissible for proceedings u/s 125 to be taken against a 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 legitimate child. The present case falls under clause (b) of Section 126 Cr.P.C. since appellant No.1 was residing at Thuvakudi within the jurisdiction of the Judicial Magistrate. The application filed by the appellants could, therefore, be entertained by the said Magistrate and he was in error in dismissing the same on the ground that he had no jurisdiction to entertain the same.

The appeal is, therefore, allowed, the impugned judgments of the High Court as well as those of the courts below are set aside and the matter is remitted to the Judicial Magistrate, No. 7, Trichy, to deal with the matter and pass appropriate order in accordance with law as expeditiously as possible.