Sampoornam vs N. Sundaresan

Ramaswami, J.—This is a criminal revision case which has been filed against an order made by the learned Chief Presidency Magistrate of

Madras in M. P. No. 745 of 1951.

The short facts are: The petitioner before us Sampaonam aged about 25 was married to the respondent Sundaresan in Madras in 1939. They

lived for a year at No. 2 Hensman Road, T. Nagar, belonging to the father of the petitioner. Then this Sundaresan was employed as an Assistant in

the Metallurgical Department at Tatanagar. The marriage was consummated only in June 1940 at Trichirapalli. Then the petitioner joined her

husband at Tatanagar. They were visiting Madras as Madras was their first home to attend to business or ceremonies etc. In July 1950 the

petitioner came to Madras along with her husband. They stayed for some time in Madras and the husband went back leaving the wife here for

medical treatment. The husband has been then writing to her to come to Tatanagar after being restored to health and has been sending remittances

to the wife at Madras, showing that the husband was keeping a second establishment at Madras where this petitioner was staying and receiving

remittances. Then the husband and wife have fallen out and after protracted emotional correspondence the husband has now married a second

wife and is living in Jamshedpur employed as the Chief Inspector, Metallurgical Department, Tata Iron and Steel Company. Hence this

maintenance application in the Chief Presidency Magistrate''s Court, Madras.

The respondent raised two objections, viz, that first of all the Chief presidency Magistrate was not entitled to entertain the application on the

ground that he had not last resided with his wife at Madras, and secondly, that under Clause (4) of Section 488 Criminal Procedure Code, the

petitioner was not entitled to maintenance.

The learned Chief Presidency Magistrate dismissed the maintenance application on the ground that he had no jurisdiction to try the case.

The point for determination here is whether on the facts of this case this respondent can be described to come within Clause (8) of Section 488

Criminal Procedure Code, viz, that proceedings under this section may be taken against any person in any District where he last resided with his

wife. In other words, the controversy turns upon the word ""resided"". The word ""resided"" in Section 488 Criminal Procedure Code, has been the

subject of several decisions. It implies something more than paying a casual visit as laid down in --''Balakrishna Naidu v. Mrs. Sakuntala Bai'',

1942 Mad W. N. 369, and -- ''Ramakumar v. Mst. Rukmini 63 Ind Cas 870, but is not equivalent to something in the nature of having a domicile

in a particular place as laid down in -- ''Rifaquat Ullah Khan v. Emperor I. L. R. (1946) All. 879''.

In ''In re Sama Jetha, A. I. R. 1930 Bom. 348'' it was held that the words ""last resided"" are not restricted to permanent residence but include

also a temporary residence of two months with the wife at the house of parents-in-law so as to confer jurisdiction on the court of that place. --

''Mrs. F. H. Jolly v. St. John William Jolly, 21 Cal. W. N. 872, -- Sher Singh Vs. Mt. Amir Kuer, '' followed;--''Mt. Ramdei v. Jhunnilal, AIR

1926 Oudh 268'' distinguished and ''In re Khairumissa AIR 1929 Bom. 410 considered. Similarly in -- ''Krishnaswami lyer v. Subbalakshmi

Ammal, 1935 Mad. W. N. 475'' Burn J. held that where it appeared that the last residence of the counter-petitioner with the petitioner was in the

Trichinopoly district, though he was permanently employed in Nagpur (Central Provinces), the Sub-Divisional Magistrate, Trichinopoly, had

jurisdiction to entertain a petition u/s 488 Criminal Procedure Code, against the counter-petitioner. The Calcutta High Court in -- ''Mrs. F. H. Jolly

v. St. John William Jolly'', 21 Cal. W. N. 872 : 18 Cri. L. J. 706'', held that the temporary residence was sufficient to give a Calcutta Court

jurisdiction under Sub-section (8) of Section 488 Criminal Procedure Code. This must be the case especially where the parties have no home, as

in this case, of any sort and have been moving about from place to place and in which case, each place where they so live would be their home for

the time being and the last known such place where this counter-petitioner resided with his wife was Madras: Vide --''Charn Das v. Mt. Surasati

Bai'', ''AIR 1940 Lah. 449''.'' In --''Balakrishna Naidu v. Sakuntala Bai'', ''1942 M. W.N. Cr. 73'', Horwill J. pointed out that where a person

who follows a profession and is naturally tossed about must necessarily have some place of residence in which he can keep his wife and family and

store his furniture and goods and to which he could return and that place of residence would be his permanent residence for the purpose of

conferring jurisdiction. In short Sub-section (8) of Section 488, Criminal Procedure Code, does not necessarily refer to a permanent residence and

it refers also to temporary residence and the word ""residence"" implies something more than a brief visit but not such a continuity as to amount to

domicile. Each case has to be dealt with on its merits as has been pointed out in --''Gangabai v. Pamanmal'', AIR 1938 Sind 223, bearing in mind

that the section should not be so strictly construed as to deprive the woman, who often in these cases is helpless, of assistance from the Court

which is most easily accessible to her.

In the present case I have pointed out how the husband was keeping a second establishment at Madras and was working at his profession in

Tatanagar and that it was only subsequently that he has got married there and unilaterally terminated the second establishment.

Therefore, the weight of evidence in the case and the principles deducible from the decisions referred to above support the contention of the

petitioner that the Presidency Magistrate''s Court has got jurisdiction to entertain this maintenance petition.

The order of the learned Chief Presidency Magistrate is set aside and he is directed to restore the petition to file and dispose of it according to

law on the merits.