Paramjit Singh vs Harminder Kour and Another

S.K. Gupta, J.—This petition u/s 561-A Cr.P.C has been preferred with a prayer to quash criminal complaint No. 36 titled Smt. Harminder

Kour and Anr. v. Paramjit Singh u/s 488 Cr.P.C and the proceedings initiated thereunder vide order dated 29.10.2003 by virtue of which the

learned 1st. Addl. Munsiff (Forest) Magistrate, Jammu, has issued process against the petitioner.

According to the averments made in the petition, the petitioner and respondent No. l were married in November, 1998 in Delhi and after the

marriage, they lived as husband and wife in the matrimonial home at Jail Road, Delhi. It is further stated that respondent No. l, in the absence of the

petitioner, left her matrimonial home on 8.5.2002 and came to her parental house at Jammu. The petitioner, despite his best efforts, could not

succeed to bring her back. Even the efforts made by the family members of the petitioner and relatives, besides common friends, to pursue the

respondent to return to her matrimonial home, did not materialize. This led the petitioner to file a petition u/s 9 of Hindu Marriage Act, seeking

restitution of conjugal rights, in the court at Delhi in August, 2003. In order to pressurize the petitioner to dissuade from proceedings u/s 9 of the

Hindu Marriage Act in Delhi, the respondent preferred a petition u/s 488 Cr.P.C, claiming maintenance in the court of 1st Addl. Munsiff, Forest

Magistrate, Jammu. Cognizance was taken by the learned magistrate and process was issued against the petitioner vide order dated 29.10.2003.

The sole ground taken by the petitioner is that the petitioner is a permanent resident of Delhi and at present is residing at Delhi. He has last

resided with respondent No. 1 at Delhi and has never stayed in Jammu with the respondent, after his marriage. The Magistrate has no territorial

jurisdiction to entertain the petition for maintenance, in view of a clear bar u/s 488 (8) Cr.P.C, which provides that 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, and, as such, petitioner contended that proceedings u/s 488 and the process issued against the petitioner deserves to be

quashed.

I have heard the learned counsel for the respective parties and also perused the relevant provisions of law touching the matter in controversy.

It may be pointed out at the threshold that the proceedings u/s 488 Cr.P.C can be initiated against a husband in any District where he resides, or

is, or where he last resided with his wife. For the purpose of this petition, this is the relevant provision to be examined in this case.

Adverting to the recitals of the petition u/s 488 Cr. P.C, filed by the respondent before the Magistrate, it is clear from the averments of

paragraph 9 that the respondent (petitioner herein) visited Jammu only in January 1999, after the marriage and he never bothered to come to

Jammu on any happy or sad occasion.

The word ""resides"" appearing in Sub-section (8) of Section 488 Cr.P.C, however, means something more than a visit at a particular place. 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. The crucial words of the sub-section are, ""resides"", ""is"" and ""where he last resided

with his wife"". Under the code, the Magistrate of the District where the husband or father, as the case may be, resided only had jurisdiction. It

gives three alternative forums. This has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much

needed and urgent relief in one or other of the three forums convenient to them. This in fact is a liberal consideration given to the words used in this

section, without doing any violence to the language.

So far as the case of the petitioner is concerned, there is nothing evident from the record to show that on what basis the respondent has filed the

petition u/s 488 Cr.P.C in the court of Judicial Magistrate at Jammu. The marriage between the parties has taken place at Delhi. Parties, after

marriage, resided at Delhi and the petitioner visited Jammu once only to attend the marriage of cousin of the respondent. Thus, there is nothing in

the case to suggest from the record that the petitioner was residing at Jammu or resided at Jammu or was living within the jurisdiction of courts at

Jammu. In such circumstances the Magistrate at Jammu had no jurisdiction to entertain the petition, take cognizance and issue process against the

petitioner, in view of Section 488 (8) Cr.P.C. The Magistrate at Jammu lacks the jurisdiction to entertain the petition and the cognizance taken in

the matter has resulted in abuse of process of court, necessitating interference of this court in exercise of its inherent jurisdiction u/s 561-A Cr.P.C.

For what has been discussed and stated above, the petition is allowed and the petition filed u/s 488 Cr.P.C. in the court of Judicial Magistrate at

Jammu and proceedings initiated on the same vide order dated 29.10.2003, are quashed. However, this will not debar the respondent to file a

petition u/s 488 Cr.P.C. in the court of competent jurisdiction, as provided u/s 488(8) of the Code of Criminal Procedure.

The petition is disposed of in the terms indicated above.

Record of the trial court be remitted back along with a copy of this order.