Sakuntala vs Thirumalayya

K.S. Venkataraman, J.—This revision petition u/s 439, Criminal Procedure Code, arises out of a proceeding instituted u/s 488, Criminal

Procedure Code, by a wife against her husband for maintenance on the ground of cruelty and second marriage. The learned Sub-Divisional

Magistrate, Poonamallee, before whom the proceeding was instituted, declined to entertain the petition on the following ground ;

The place where the respondent resides, or is or where he last resided with the petitioner it Tiruttani. So, the case would be filed before the District

Munsif-cum-First Class Magistrate as Tiruttani.

Now it is not disputed before me by Sri S. Balasubramaniam, the learned Counsel for the petitioner, that the respondent (husband) has always

been residing in a village in Tiruttani Taluk. But he contends that Section 488(8), Criminal Procedure Code, enables the petitioner to institute

proceedings anywhere in the District of Chingleput of which Tiruttani Taluk is a part and that it is more convenient for the petitioner to institute the

proceeding at Poonamallee than at Tiruttani as she is residing at Tambaram and Poonamallee is nearer to Tambaram and Tiruttani is far away.

Section 488(8) runs thus:

Proceeding 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.

But this has to be read along with Section 12 of the Code which says that the State Government may appoint as many persons as it thinks fit,

besides the District Magistrate, to be Magistrates of the First, Second or Third Class in any District outside the Presidency towns, and the State

Government or the District Magistrate subject to the control of the State Government may, from time to time, define local areas within which such

persons may exercise all or any of the powers with which they may respectively be invested under this Code. Section 488(1) says that the

proceeding may be instituted before the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First

Class.

Now Section 488(8) is intended to apply to a case where the husband is residing in a particular District, say, Chingleput, at the time of the

presentation of the petition, but was residing last with his wife in another District, say, South Arcot District. In such a case, according to the

provision, the proceeding can be instituted either in Chingleput District or in South Arcot District. But the provision does not say that the

proceeding may be instituted in any Court in the District. Having indicated the District where the proceeding may be instituted we are thrown back

on Section 12 for the determination of the particular Magistrate before whom the proceeding should be instituted. The Magistrate will be one

having jurisdiction over the local area where the respondent resides or last resided with his wife. Such a construction alone would give effect both

to Section 488(8) and Section 12 of the Code. On the other hand, the construction sought to be placed by the learned Counsel for the petitioner

would omit Section 12 altogether and would further import words, in Section 488(8) which are not there. In other words, the construction

proceeds as though Sub-section (8) has said "" may be taken against any person anywhere in any District where he resides."" It follows that the

learned Magistrate is right in his order. The learned Counsel for the petitioner says that where a Magistrate not having jurisdiction over a local area

passes an order, it is a curable Irregularity u/s 531 and that order will not be void u/s 530(n), and he refers to Ramanatha Iyer''s Commentary on

the Code of Criminal Procedure u/s 488--Section 2--Note 5 (page 2135) and the cases quoted therein, and note 16 in Sohoni''s Criminal

Procedure Code (page 2660). But that would not apply to a case where the objection is raised even at the outset.

The petition is accordingly dismissed.