Pyare lal vs Smt. Siawati and Another

G.S.N. Tripathi, J.—This revision is directed against the judgment and order dated 30.8.1996 passed by the Family Court, Kanpur Nagar.

Admittedly, the revisionist Pyare Lal is the husband of Smt. Siawati, respondent No. 1. Smt. Siawati filed a Criminal Case No. 222 of 1988, u/s 125 Cr.P.C. claiming maintenance on several grounds. The case was filed in the Court of Family Court Judge, Kanpur Nagar. In paragraph 8 of the petition, she has alleged that the revisionist turned her out of his house and threw her at the house of her uncle at Kanpur, ordering her not to come back except when she had arranged Rs. 10.000/-. On 3r5.1985 again the husband physically assaulted her in Kanpur Nagar. He has remarried.

Before the learned Family Court Judge, an objection was raised by the revisionist that the Kanpur Court had no jurisdiction. However, he did not press this objection and parties entered into a compromise, whereby, the revisionist agreed to pay maintenance and thus the payment continued thereafter. The objection with regard to the lack of jurisdiction of Kanpur Nagar Court was not pressed. The compromise dated 8.2.1990 was entered into between the parties and as per that compromise, Rs. 225/- p.m. was awarded as maintenance by the Court on 8.2.1990 as per compromise filed on the record. No revision was filed against this order.

After some time, the wife again moved the Court for enhancement of the monthly allowance on the ground of escalation in prices. That was allowed and the monthly allowance was enhanced to Rs. 250/-. Although the revisionist reiterated his mild objection on the point of jurisdiction of Kanpur Nagar Court but here also, he did not press it and the sum of Rs. 250/- was granted by the Court. No revision was filed against this order too.

Thereafter, again she moved an application in Case No. 92 of 1995 and claimed that due to escalation in prices further, she was not able to maintain herself on a meager amount of Rs. 250/-. It should be enhanced. The revisionist objected to the same mainly on the ground of want of jurisdiction. The learned Family Court, Kanpur Nagar, vide his impugned order dated 30.8.1996, rejected this objection of the revisionist as repeatedly the revisionist had acceded to the jurisdiction of the Family Court at Kanpur Nagar. Hence this revision.

6.1 have heard learned Counsel for the parties and gone through the record. I find that there is no force in this revision and it deserves to be dismissed.

In the initial application u/s 125, Cr.P.C., the wife had alleged that she had been left at their residence of her uncle at Kanpur Nagar. Further, she has alleged that she was beaten by the revisionist there also. Hence she was residing at the house of her uncle although her parents belonged to Unnao. But after the marriage with the revisionist, she has been residing at Kanpur Nagar with her uncle. The revisionist in his objection (Annexure4), dated 21.3.1996, in paragraph 4, has admitted that the revisionist casually visits Kanpur at the house of her uncle. But Kanpur is not her permanent abode rather, her permanent abode is Distt. Unnao(Bvhere her parents, now only her mother, after the death other father, reside. Again when she moved for enhancement of the monthly allowance from Rs. 225/- to Rs. 250/-, an order of the Court was passed enhancing the amount. The revisionist did not challenge that order before any Revisional Court despite his mild objection with regard to the jurisdiction of the Court. Hence when the last application was moved, he reiterated his objection with regard to the jurisdiction which has been rejected and thus he has filed this revision.

The conduct of the revisionist shows that twice he has submitted to the jurisdiction of the Court at Kanpur Nagar. It is not a case of lack of total jurisdiction of the Court at Kanpur. u/s 126, Cr.P.C., it has been provided that proceedings u/s 125, Cr.P.C. 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............."

Thus if the wife resides at Kanpur with her uncle, the Court at Kanpur will have automatic jurisdiction to entertain a petition u/s 125, Cr.P.C. Hence it is not a case of total lack of jurisdiction.

Not only this, although the revisionist raised the objection that Kanpur Court had no jurisdiction, he did not press it impliedly and entered into a compromise with the wife, whereby he agreed to pay her maintenance @ Rs. 225/- p.m. and he continued payment for some time.

If he had real objection with regard to the territorial jurisdiction of Kanpur Court, he would not have entered into the compromise rather, he should have fought the proceedings tooth and nail, which he did not do.

Thus the wife was not allowed to prove that she was residing with her uncle at Kanpur nor the revisionist proved by any evidence on the record that she did not reside in Kanpur at all. By implication, wife''s contention was accepted.

Again when the wife claimed additional maintenance u/s 127, Cr.P.C. the revisionist allowed the order to be passed enhancing the amount from Rs. 225/- to Rs. 250/-. Although, he lightly took this objection that the Kanpur Court had no jurisdiction even in this time. But after the order was passed, he did not challenge it and that order is final till today and binding upon him. Here he did not request the Court to decide the point of jurisdiction first. Thus the allegations made by the wife that she resides at Kanpur with her uncle, stood automatically proved.

It is only after the application filed again u/s 127, Cr.P.C. for further enhancement that he has seriously taken this plea. The Court below has rejected it because it has held that the earlier orders in favour of the wife, were not challenged by the husband nor the plea of want of jurisdiction of Kanpur Court was seriously pressed by him and the Court acted accordingly.

Here also, I want to say that entering into a compromise with the agreement of the parties, cannot confer jurisdiction upon any Court which basically lacks it. But this ruling is available only to a case where there is total lack of jurisdiction. For instance, a transaction took place at Allahabad. The delivery of the goods was made at Bombay and the compromise was entered into in Madras. Here the Court of Madras had initial lack of jurisdiction. But the Courts at Allahabad and Bombay have real jurisdiction. The suit can be filed and the proceedings can be launched either at Allahabad or at Bombay, but not in Madras, because the Madras Court had no jurisdiction at all initially and mere agreement between the parties cannot confer jurisdiction upon the Court. So the contention of the revisionist''s learned Counsel cannot be upheld.

The proceedings u/s 125, Cr.P.C. provide a rough and ready remedy because the aim is to prevent the wife and children from getting vagrant. Supposing after the husband has turned away his wife and she has to make her both ends meet by begging. During the cause of begging, she moves from Allahabad to Kanpur or Lucknow and continues begging there. Since she has not made a place of her own, she has to live in slum dwellings in Kanpur or Lucknow and arrange the livelihood by begging there. This way in the very nature of the things and peculiar circumstances of the case the wife has no permanent abode. She reaches at the place, where she can get alms and make her both ends meet somehow or the other. It will be a cruel joke or the part of the husband if he denies her maintenance and compels her to beg and go vigrant. She does so and moves from one end to other just to earn her livelihood by begging. She has no permanent avocation or subsistence. Hence she begs wherever she gets it. Now the husband compels her to sue only at a particular place of his choice. That he should not be allowed to do. A lady without any fixed place of living or earning moves from one place to another. In the course of her begging profession, the husband cannot be allowed to say that she must file the suit at Allahabad, where the marriage took place or she should sue him either at Allahabad or at Bulandshahr, where the husband resides or is.

In the peculiar circumstances of the case since the wife moves for begging and thus she lives at Lucknow or Bulandshahr, whatsoever, it may be, hence she can sue u/s 125, Cr.P.C. the husband at the place where she is begging. The question of permanent or temporary residence should not come into play. Actual residence of such a wife would be the place where she gets alms and not the place where her parents reside or husband reside or any other relations of her, may be residing. That is what the provision u/s 126, Cr.P.C. is that the proceedings can be launched u/s 125 Cr.P.C. either at the place where the husband is (may be for a short while even) or the wife resides. What should be the nature of residence, is the question of fact to be determined according to the circumstances of that particular case only.

In this case, admittedly, the wife''s uncle resides at Kanpur. It is further stated that she casually visits at Kanpur. Whereas, she says that for a long time she has been residing with her uncle at Kanpur. Not only this, she has alleged that she was beaten by the husband last time at Kanpur at the place of her uncle. Therefore under this circumstance, it will be too much to expect that the wife should have a permanent nature dwelling at Kanpur and then only she can sue at Kanpur. In this set of circumstances, I find that the wife''s allegations, that she resides at Kanpur with her uncle, stood proved and the Court at Kanpur Nagar has total jurisdiction with regard to the proceedings u/s 125, Cr.P.C. alongwith incidental proceedings arising out of the impugned order passed u/s 125, Cr.P.C4^n favour of the wife and against the husband.

Therefore, I totally reject the plea of the learned Counsel that the wife cannot sue at Kanpur Nagar and hold that the Kanpur Court has total jurisdiction with regard to these proceedings and the petition u/s 125, Cr.P.C. and subsequent petitions Under Section" 127, Cr.P.C. have been validly launched at Kanpur Nagar Court.

The revision has no force. It is accordingly dismissed. The husband is directed to make the payment as ordered by the Court below without any delay, failing which proceedings for recovery according to Court shall be launched.