Surinder Kumar vs Darshana Kumari

Harmohinder Kaur, Sandhu, J.

The petitioner Surinder Kumar was married to Darshna Kumari respondent on 2211980, according to Hindu rites at Nuh. After marriage the parties lived together as husband and wife at Delhi till August, 1987. No issue was born out of this wedlock. The petitioner was under treatment at A.I.I.M.S., New Delhi. for partial sterility and the respondent lived with her parents at RZ31, Manas Kunj, Uttam Nagar, New Delhi under medical advice. In December, 1989 she filed a petition for dissolution of marriage in a Court at Gurgaon in which a compromise was lateron effected and marriage of the parties was dissolved before the Lok Adalat at Gurgaon on December 22, 1990. Prior to that the respondent had moved an application under Section 1.25 Cr.P.C. on December 20. 1989 in the Court of Judicial Magistrate Ist Class, Gurgaon, which was subsequently transferred to Nuh, as a Court had been established there. The respondent alleged in that petition that she had no source of income and that she was residing with her brother at Nuh. The various allegations made in the application were controverted by the petitioner and he also raised an objection that the respondent was not residing at Nuh and the Court at Nuh had no jurisdiction to entertain the application. After hearing the learned counsel for the parties on the point of jurisdiction which was treated as preliminary the Judicial Magistrate Ist Class, Nuh found that Court had no jurisdiction to entertain the application and dismissed the same vide his order dated December 23, 1991. Against that order the respondent preferred a revision petition which was accepted by the learned Sessions Judge, Gurgaon and the order of the trial Court was set aside. It is this order of the learned Sessions Judge dated September 10, 1992 that has been assailed by the petitioner by way of this revision petition.

I have heard Mr. M.S. Khaira, Senior Advocate, learned counsel for the petitioner, Mr. Sanjay Vij, the learned counsel for the respondent and have perused the record.

It was contended on behalf of the petitioner that although marriage of the parties was performed at Nuh, the parties thereafter resided in Delhi and the respondent was residing at the house of her father in Manas Kunj, Rajauri Road, Uttam Nagar, New Delhi. Even in her petition for dissolution of marriage, which was filed in a Court at Gurgaon, the respondent had given her address as that of Delhi. There had been various types of litigation between the parties and in all the proceedings the respondent never mentioned herself as a resident of Nuh. In all the documents copies of which were placed on this file the residential address of the respondent was that of Delhi. The Court at Nuh had no jurisdiction to entertain the application under Section 125 Cr.P.C. and the application was rightly dismissed by the learned trial Court after referring to the numerous documents placed on record showing that Darshana Kumari was a resident of Delhi and she never resided with her brother at Nuh. The learned Sessions Judge set aside the order of the trial Court without refering to the documents upon which reliance was placed by the trial Court. The only evidence produced by the respondent in the trial Court to show that she was a resident of Nuh consisted of a ration card of her brother and a certificate issued by one Municipal Commissioner of Nuh that she was residing there. The ration card did not contain her name and the certificate of the Municipal Commissioner was not of any evidentiary value in the face of various documents and affidavits sworn by the respondent herself giving her address as that of Delhi.

Section 126 (1) of the Code of Criminal Procedure provides "Proceedings under Section 125 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, or as the case may be, with the mother of the illegitimate child."

It is, thus, evident that a Magistrate is competent to entertain an application for maintenance against a person where he or his wife resides or where he last resided with his wife The question to be determined in this case is whether the respondent resided at Nuh where her application for maintenance was entertained, The Supreme Court in Jagir Kaur v. Jaswant Singh, AIR 1963 Supreme Court 1521, after referring to the meaning of term resides'' as defined lexicographically and as interpreted by the various High Courts observed as follows :

"The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that resides in the subsection means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word resides thus a person resides in a place if he through choice makes it his abode permanent or even temporarily, whether a person has chosen to make a particular place his abode depends up the facts of each cast."

In the present case the copies of the documents Annexure P 3 to P17 show that the respondent resided In Delhi with her father Tara Chand. A complaint was filed against the respondent and others under Secs. 420/406/120B IPC on 24th September, 1989 in which the address of Darshana Kumari was given at RZ31, Manas Kunj, Rajauri Road, Uttam Nagar, New Delhi. She furnished bail bond in connection with that case copy of which was Annexure P/4 wherein she described herself as resident of New Delhi. Annexure P/5 is an application submitted by the respondent for return of dowry articles in the Court of Shri N.K. Goyal. M.M. Delhi describing herself as a resident of New Delhi. Annexures P/7 and P/8 are the affidavits sworn by the respondent submitted in the Court of M.M. New Delhi, showing herself as a resident of Delhi. These affidavits were sworn after she had filed the application for maintenance. In the superdari bond furnished by her the respondent again described herself as resident of RZ31, Manas Kunj, New Delhi. She sent an application to the Commissioner of Police, Delhi copy of which is Annexure P/11 dated April 30, 1991, wherein again she gave her address as that of Now Delhi. Similarly in the documents Annexure P/12 to P/17, the respondent described herself as a resident of Delhi. She was unable to produce any document showing that she resided at Nuh with her brother.

Besides the above mentioned documents father of the respondent made a statement on oath before the Income Tax Officer on 7th March, wherein he deposed that his daughter Darshana Kumari who was divorced by her husband in December. 1990 was residing with him for the last four years. An affidavit to this effect was filed by the petitioner in the Court of Judicial Magistrate Ist Class, Nuh, the correctness of which was not assailed by the respondent and copy of that affidavit was annexure P/18. In view of this evidence it is very well made out that the respondent was living with her father at Delhi and even if she paid a casual visit to her brother''s place at Nuh she had absolutely no animus manendi or intention to stay there for an indefinite period. In fact the trial Court observed that she never appeared in the Court at Nuh and even the application was presented by her counsel in her absence. The trial Court after considering the evidence on record rightly held that the Court at Nuh had no jurisdiction to entertain the application.

As a result of above discussion, I allow this revision petition and set aside the impugned order. The order of trial Court is affirmed.