Suraj Singh vs Jeet Kour & Anr.

Despite repeated calls, no one appears for the respondents, this petition accordingly is being decided in the absence of respondents,

The petitioner and respondent No. 1 are husband and wife, Respondent No. 2 is the minor daughter of the petitioner. Respondent initialed

proceedings against the petitioner under section 488 of the Code of Criminal Procedure in the court of Munsiff Judicial Magistrate, Tral. Vide his

final order dated 1st. June 1990, the Munsiff Judicial Magistrate, Tral has allowed the petition of the respondents under section 488 of Cr. P.C.

and awarded monthly maintenance allowance @400/ in favour of each of the respondents, payable to them by the petitioner. This is noteworthy

that this order was passed exparte against the petitioner.

Mr. P.S. Sodhi, learned counsel appearing for the petitioner has argued that the court of Munsiff Judicial Magistrate, Tral had no jurisdiction to

entertain the petition u/s 488 Cr. P.C. and, therefore, the order passed by him is not in accordance with the law and suffers from vice of patent

lack of jurisdiction.

Over and above the question of jurisdiction, according to the learned counsel, the impugned order is also against the facts of the case and is not

based on true and proper appreciation of evidence. This apart, the maximum amount that could be granted by the court below in favour of the

respondents as maintenance allowance was Rs. 500/ but the Magistrate has exceeded his jurisdiction by awarding the maintenance of Rs. 800/

against the petitioner, at the rate of Rs. 400/ per month for each of the two respondents.

I am satisfied that he contentions of the learned counsel for the petitioner are correct. Subsection (8), of Section 488 Cr. P.C. reads as under:

(8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resides with his wife, or,

as the case may be, the mother of the illegitimate child.

A plain reading of the aforesaid subsection dealing with the jurisdiction of the Magistrate clearly suggests that the proceedings can be initiated by

an applicant only in such area which forms part of the District where the husband resides or last resides with the wife, and if the maintenance is in

respect of a minor child, where the father of the child last resided with his mother.

A perusal of the order dated 9 March 1992 passed by the learned Munsiff, Tral and the reading of the evidence on file clearly establishes that the

petitioner, who is husband of respondent No. 1 and father of respondent No. 2 was working at Srinagar in the course of his employment and the

parties were residing in a rented house at Jawahar Nagar in Srinagar. The learned Magistrate has twisted the evidence totally out of context by

grossly misreading it to hold that because the petitioner used to come to GulshanPora for Some odd work on some occasions from Srinagar,

GulshanPora should be treated as normal residence of the petitioner and because it falls within the territorial jurisdiction of Munsiff, Tral, that court

had the jurisdiction to entertain the petition against the petitioner. Such an approach was wholly untenable and totally contrary to the clear meaning

of subsection (8) of Section 488 Cr. P.C.. I am in complete disagreement with the finding of the Magistrate on the question of jurisdiction and hold

that he had no jurisdiction to try this petition.

That now brings me to the question of merits of the order impugned in this petition passed on 1st June 1992. Basically the order has to be

setaside because it was passed by a court which had no jurisdiction to hear the petition. That apart, even the evidence recorded exparte by the

learned Munsiff was not properly appreciated. I however, refuse to comment upon the appreciation part of the evidence for the reason that I

propose to order that proceedings may be initiated a fresh in the matter. For the same reasons I refrain from making any comments about other

aspects of the case.

The petitioner has set up a ground for transferring the case to some court in Jammu, as according to him, he is a migrant employee and cannot

so to any part of Kashmir valley for defending the petition. Because no one appeared to oppose the petition, I see no reason to disallow the

petitioner's prayer for transferring the case to Jammu.

For the foregoing reasons, I quash and setaside the impugned order dated 1st June 1992 passed by the learned Munsiff Judicial Magistrate, Tral.

The record of the case is before me. I order that the case shall stand transferred to the court of Munsiff Judicial Magistrate, Jammu. I direct that

the transferee court shall setaside the exparte proceedings against the petitioner on his making an appropriate application for this purpose and

thereafter proceed to dispose of the case in accordance with the law. I also direct that before proceeding any further, the transferee court shall

ensure that the respondents in this petition (petitioners in the petition u/s 488 Cr. P.C.) shall be duly served because this order is being passed in

their absence.

The petitioner herein shall continue to pay maintenance allowance @ Rs. Five hundred per month to both the respondents as per directions of

this court passed on 22nd July 1992. This of course shall be subject to any orders to be passed finally by the Magistrate in the proceedings u/s

488 of Cr. P.C. Connected Cr. M.P. shall stand disposed of.