Jagir Kaur & ANR Vs. Jaswant Singh
[1963] INSC 34 (13 February 1963)
13/02/1963 SUBBARAO, K.
SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1963 AIR 1521 1964 SCR (2) 73
CITATOR INFO:
RF 1970 SC 446 (9) RF 1985 SC 945 (8)
ACT:
Maintenance of Wives and
children--Construction of statute --Jurisdiction of the Magistrate to entertain
petition--If a mixed question of fact and law--If can be raised for the first
time before this Court-Code of Criminal Procedure, 1898 (Act 5 of 1898), ss.
2(1), 488(8).
HEADNOTE:
The respondent who was born in the Ludhiana
District was married to the first appellant. He took up a job in Africa and
after staying there for some time he came to India and stayed with his wife for
5 months, He then went to Africa and after staying there for 5 or 6 years came
to India and took the appellant with him to Africa and a daughter was born to
them there. The appellant was sent back with the child and she was staying in
the District of Ludhiana with the child. It is admitted that the respondent had
bought property worth Rs. 25,000/in that District and that the petition for
maintenance was filed by the appellant and the notice was served on him while
the respondent was in that District. The respondent filed a counter affidavit,
obtained exemption from personal appearance it the time of hearing of that
petition and thereafter left for Africa.
74 The 1st Class Magistrate Ludhiana held
that he had jurisdiction to entertain the petition filed by the appellant under
s. 488 of the Code of Criminal Procedure, 1898, as the appellant and the
respondent had last resided in the District Ludhiana. He awarded for the wife's
maintenance at the rate of Rs. 100/per month and for the daughter at the rate
of Rs. 50/per month. A revision petition filed by the respondent before the
Additional Sessions judge was rejected. But the High Court holding that the 1st
Class Magistrate had no jurisdiction to entertain the petition allowed the
revision petition filed by the respondent. The present appeal is by way of
special leave granted by this Court.
The main contention on behalf of the
appellants before this Court was that the respondent having last resided with
his wife in the District of Ludhiana and he having been there at the time when
the petition tinder s. 488 was presented the Magistrate had jurisdiction to
entertain the petition. It was further contended that the respondent having
submitted to the jurisdiction of the Magistrate could not question his
jurisdiction.
Held, that Ch. XXVI of the Code of Criminal
Procedure providing for maintenance of wife and children intends to serve a
social purpose. Section 488 prescribes alternative forums to enable a deserted
wife or a helpless child, legitimate or illegitimate to get urgent relief.
Proceedings under the section can be taken
against the husband or the father as the case may be, in a place where he
resides permanently or temporarily, or where lie last resided in any District
in India or where he happens to be at the time the proceedings are initiated.
The expression "resides" implied something more than a brief visit
but not such continuity as to amount to domicile.
Sampoornam v. N. Sandaram, (1952) 2 M. L. J.
573, referred to.
A casual or flying visit to a place for a
temporary purpose was not covered by the word residence.
Khairunnissa v.. Baskir Ahmad, (1929) I.L.R.
53 Bom. 781, Flowers v. Flowers, (1910) 1. L . R. 32 All. 203 and Balakrishna
v. Sakuntala Rai, A. 1. R. 1942 Mad, 666, referred to.
The sole test on the question of residence was
whether a party had animus manendi or an intention to stay for an indefinite
period at the place.
75 Charan Das v. Surasti Bai, A. 1. R. 1940
Lah. 449 referred to.
The appellant not having raised the plea of
submission to jurisdiction either in the pleadings or in any of the courts
below will not in the absence of special circumstances be allowed to raise it
before this Court.
Where a legislature has no power to make laws
in respect of any territory the operation of the law made by it cannot extend to
that territory.
The facts and circumstances of the case show
that the respondent last resided with his wife in a place within the
jurisdiction of the First Class Magistrate, Ludhiana, and that he was in a
place within the jurisdiction of the Magistrate on the date when the appellant
filed her application for maintenance against him.
In re Druker (No. 2) Basden, Ex Parte, [1902]
2 K. B. 210 referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 143 of 1961.
Appeal by special leave from the judgment and
order dated May 22, 1961, of the Punjab High Court, Chandigarh in Criminal
Revision No. 1448 of 1960.
S. K. Kapur, for the appellants.
Harnam Singh Chadha and Harbans Singh, for
the respondent.
1963. February 13. The judgment of the Court
was delivered by SUBBA RAO J.-This appeal by special leave raises the question
of true construction of s. 488(8) of the Code of Criminal Procedure.
Jagir Kaur, the first wife of jaswant Singh,
was married to him in 1.930. Tile said jaswant Singh 76 was employed in the
police force in Africa. The Maklawa ceremony took place about 7 years after the
marriage, when the respondent was away In Africa. Thereafter, the first
appellant was taken to her mother-in-law's house, and after living there for a
few years she returned to her parental house. 5 or 6 years thereafter, jaswant
Singh came to India on 5 months' leave and the couple lived in jaswant Singh's
or his mother's house at Hans Kalan it is not clear to whom the house
belongs-for a period of 5 months and thereafter jaswant Singh left for Africa.
Before going to Africa, jaswant Singh married another wife and took her with
him to Africa. After 5 or 6 years, he came back to India on leave and took the
first appellant also to Africa. There she gave birth to a daughter the second
appellant. As disputes arose between them, he sent her back to India, promising
to send her money for her maintenance but did not (lo so. In the year 1960, he
came back to India. It is also in evidence that he had purchased property in Ludhiana
District for Rs. 25,000/-. When he was admittedly in India, the first appellant
filed a petition under s. 488 of the Code of Criminal Procedure in the Court of
the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent
was staying at that time. The petition was filed by the first appellant on
behalf of herself and also as lawful guardian of the second appellant, who was
a minor, claiming maintenance at Rs. 200/per month for both of them on the
ground that the respondent deserted them and did not maintain them. The
respondent filed a counter-affidavit denying the allegations and pleading that
the said court had no on the ground that he never resided within its district
nor did he last reside with the first appellant in any place within its jurisdiction.
The learned Magistrate held that the petitioner-appellant was the wife of the
respondent and that the Court had jurisdiction to entertain the petition as the
77 husband and wife last resided together in the District of Ludhiana. On the
merits, he held that the first wife and her daughter were entitled to
maintenance and awarded for the wife maintenance at the rate of Rs. 100/per
month and for the daughter at the rate of Rs. 50/per month. The respondent
preferred a revision against that order to the Additional Sessions judge,
Ludhiana, and the learned Additional Sessions judge, agreed with the learned
Magistrate both on the question of jurisdiction and also on the right to
maintenance and dismissed the revision. The husband preferred a revision to the
High Court of Punjab against that order. The High Court disagreed with both the
lower Courts on the question of jurisdiction. It held that the husband's
permanent home was Africa and his two visits to Ludhiana for temporary periods did
not make him one who resided in that district or who last resided with his wife
therein. On that view, it set aside the order of the learned Additional
Sessions judge and dismissed the petition. Hence the present appeal.
Mr. Kapur, learned counsel for the
appellants, contended that the respondent had last resided with his wife in his
house in village Hans Kalan in the District of Ludhiana and was also in the
said District at the time the application under s. 488 of the Code of Criminal
Procedure was filed by the first appellant and, therefore, the learned
Magistrate had territorial jurisdiction to entertain the application.
In any view, he argued, the respondent
submitted to the jurisdiction of the Magistrate and, therefore, he could no
longer question the validity of his order on the ground of want of
jurisdiction. On the other hand, the learned counsel for the respondent sought
to sustain the order of the High Court for the reasons mentioned therein.
At the outset we must say that the first
appellant did not raise the plea of submission 78 either in the pleadings or in
any of the three Courts below.
The question is a mixed question of fact and
law. This Court will not ordinarily allow such questions to be raised for the
first time before it and we do not see in this case any exceptional
circumstances to depart from that practice.
We cannot therefore, permit the first
appellant to raise this belated plea.
The only question in the appeal is whether
the Magistrate of Ludhiana had jurisdiction to entertain the petition filed
under s. 488 of the Code of Criminal Procedure. The question turns upon the
interpretation of the relevant provisions of s. 488(8) of the Court, which
demarcates the jurisdictional limits of a Court to entertain a petition under
the said section. Section 488 (8) of the Code reads :
"Proceedings 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.".
The crucial words of the sub-section are,
"resides", "is" and "where lie last resided with his
wife". Under the Code of 1882 the Magistrate of the District where the
husband or father, as the case may be, resided only had ' jurisdiction.
Now the jurisdiction is wider. It gives three
alternative forums. This, in our view, has been designedly done by the
Legislature to enable a discarded wife or a helpless child to get the much
needed and urgent relief in one or other of the three forums convenient to them.
The proceedings under this section are in the nature of civil proceedings. the
remedy is a summary one and the person seeking that remedy, as we have pointed
out, is ordinarily a helpless person.
So, the words should be liberally construed'
without doing any violence to the language.
79 The first word is "resides". A
wife can file a petition against her husband for maintenance in a Court in the
District where he resides. The said word has been subject to conflicting
judicial opinion. In the Oxford Dictionary it is defined as : "dwell
permanently or for a considerable time; to have one's settled or usual abode ;
to live in or at a particular lace". The said meaning, therefore, takes in
both a permanent dwelling as well as a temporary living in a place. It is,
therefore, capable of different meanings, including domicile in the strictest
and the most technical sense and a temporary residence. Whichever meaning is
given to it, one thing is obvious and it is that it does not include a causal
stay in, or a flying visit to, a particular place. In short, the meaning of the
word would, in the ultimate analysis, depend upon the context and the purpose
of a particular statute. In this case the context and purpose of the present
statute certainly do not compel the importation of the concept of domicile in
its technical sense. The purpose of the statute would be better served if the
word "resides" was understood to include temporary residence. The
juxtaposition of the words "is" and "'last resided" in the
sub-Section also throws light on the meaning of the word "resides".
The word "'is", as we shall explain later, confers jurisdiction on a
Court on the basis of a causal visit and the expression "last
resided", about which also we have something to say, indicates that the
Legislature could not have intended to use the word "resides" in the
technical sense of domicile. The word "resides" cannot be given a
meaning different from the word "resided" in the expression
"'last resided" and, therefore, the wider meaning fits in the setting
in which the word "resides" appears. A few of the decisions cited at
the Bar may be useful in this context.
In Santpoornam v. N. Sundaregan (1), it was
held that the word "resides" implied something more than (1) (1952) 2
M.L.J 573, 80 a brief visit. but not such continuity as to amount to a
domicile. In Khairunissa v. Bashir Ahmed (1), on a consideration of the
relevant authorities it wits pointed out that a casual or a flying visit to a
place was excluded from the scope of the word "resides". A full Bench
of the Allahabad High Court, in Flowers v. Flowers (2), expressed the view that
a mere casual residence in a place for a temporary purpose with no intention of
remaining was not.
covered by the word "resides". In
Balakrishna v. Sakuntala Bai (3) it was held that the expression
"reside" implied something more than "stay" and implied
some intention to remain at a place and not merely to pay it a casual visit.
In Charan Das v. Surasti Bai (2), it was held
that the sole test on the question of residence was whether a party had animus
manendi, or an intention to stay for an indefinite period, at one place; and if
he had such an intention, then alone could he be said to "reside"
there.
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 permanently
or even temporarily ;
whether a person has chosen to make a
particular place his abode depends upon the facts of each case. Some illustrations
may make our meaning clear : (i) A, living in (1) (1929) I.L.R. 53 Bom. 781.
(2) (1910) I.L.R. 32 All.
203.
(3) A.I.R. 1942 Mad. 666. (4) A.I.R. 1940
Lah. 449, 81 a village, goes to a nearby town B to attend a marriage or to make
purchases and stays there in a hotel for a day or two. (2) A, a tourist, goes
from place to place during his peregrinations and stays for a few days in each
of the places he visits, A, a resident of a village, who is suffering from a
chronic disease, goes along with his wife to a town for medical treatment,
takes a house and lives there for about 6 months. (4) A, a permanent resident
of a town, goes to a city for higher education, takes a house and lives there,
alone or with his wife, to complete his studies. In the first two cases, A
makes only a flying visit and he has no intention to live either permanently or
temporarily in the places he visits. It cannot, therefore, be said that he
"resides" in the places he visits. In the last two illustrations,
though A has a permanent house elsewhere, he has a clear intention or animus
manendi to make the places where he has gone for medical relief in one and
studies in the other, his temporary abode or residence.
In the last two cases it can be said that
though he is not a domicile of those places, he "resides" in those
places.
The cognate expression "last
resided" takes colour from the word "'resides" used earlier in
the sub-section. The same meaning should -be given to the word "
resides" and the word "'resided", that is to say, if the word
"resides" includes temporary residence, the expression "last
resided" means the place where the person had his last temporary
residence. But it is said that even on that assumption, the expression can only
denote the last residence of the person with his wife in any part of the world
and that it is not confined to his last residence in any part of India. If the
words "where he last resided with his wife" are construed in vacuum,
the construction suggested by the learned counsel for the respondent may be
correct; but by giving such a wide meaning to the said expression we would be
giving extra territorial operation to the 82 Code of Criminal Procedure. Section
2 (1) of the Code extends the operation of the Code to the whole of India
except the States of Jammu & Kashmir; that is to say, the provisions of the
Code, including s. 488 (8) thereof, have operation only throughout the
territory of India, except the States of Jammu & Kashmir. If so, when
sub-s. (8) of s. 488 of the Code, prescribing the limits of Jurisdiction,
speaks of the last residence of a person with his wife, it can only mean his
last residence with his wife in the territories of India. It cannot obviously
mean his residing with her in a foreign country, for an Act cannot confer
jurisdiction on a foreign court. It would, therefore, be a legitimate
construction of the said expression if we held that the district where be last
resided with his wife must be a district in India.
In In re Drucker (No. 2) Basden, Ex Parte the
words "or in any other place out of England," in sub-s. (6) of s. 27
of the Bankruptcy Act, 1883, fell to be construed. The words were wide enough
to enable a Court in England to order that any person who, if in England, would
be liable to be brought before it under the section, shall be examined in any
place out of England, including a place not within the jurisdiction of the
British Crown. The Court held that the words must be read with some limitation
and the jurisdiction conferred by that section does not extend to places abroad
which are not within the jurisdiction of the British Crown.
Wright, J., rejecting the wider construction
sought to be placed on the said words, observed at p. 211 :
"It seems to me that that restriction in
prima facie necessary. It is impossible to suppose that the Legislature
intended to empower the Court to order the examination of persons in (1) [1902]
2 K.B. 210.
83 foreign countries ; for instance, in
France or Germany." In Halsbury's Laws of England, Vol. 36, 3rd edn., at
p. 429, it is stated :
"........ the presumption is said to be
that Parliament is concerned with all conduct taking place within the territory
or territories for which it is legislating in the particular instance, and with
no other conduct. In other words, the extent of a statute, and the limits of
its application, are prima facie the same." It may be mentioned that the
said observations are made in the context of Parliament making a law in respect
of a part of the territory under its legislative jurisdiction. If it has no
power at all to make a law in respect of any foreign territory, the operation
of the law made by it cannot obviously extend to a country over which it has no
legislative control. It is, therefore, clear that s. 488(8) of the Code, when
it speaks of a district where a person last resided with his wife, can only
mean "where he last resided with his wife in any district in India other
than Jammu & Kashmir." The third expression is the word
"is". It is inserted between the words "resides" and
"last resided". The word, therefore, cannot be given the same meaning
as the word "resides" or the expression "last resided"
bears. The meaning of the word is apparent if the relevant part of the
subsection is read. It reads : "Proceedings under this section may be
taken against any person in any district where he............
is............." The verb "is"' connotes in the context the
presence or the existence of the person in the district when the proceedings
are taken. It is much wider than the word "resides": it is not
limited by the animus manendi 84 of the person or the duration or the nature of
his stay.
What matters is his physical presence at a
particular point of time. This meaning accords with the object of the chapter
wherein the concerned section appears. It is intended to reach a person, Who
deserts a wife or child leaving her or it or both of them helpless in any
particular district and goes to a distant place or even to a foreign country,
but returns to that district or a neighbouring one on a casual or a flying
visit. The wife can take advantage of his visit and file a petition in the
district where he is during his stay. So too, if the husband who deserts his
wife, has no permanent residence, but is always on the move, the wife can catch
him at a convenient place and file a petition under s. 488 of the Code. She may
accidentally meet him in a place where he happens to come by coincidence and
take action against him before lie leaves the said place. This is a salutary
provision intended to provide for such abnormal cases. Many illustrations can
be visualized where the utility of that provision can easily be demonstrated.
To summarize : Chapter XXXVI of the Code of
Criminal Procedure providing for maintenance of wives and children intends to
serve a social purpose. Section 488 prescribes alternative forums to enable a
deserted wife or a helpless child, legitimate or illegitimate, to get urgent
relief.
Proceedings under the section can be taken
against the husband or the father, as the case may be, in a place where he
resides, permanently or temporarily, or where he last resided in any district
in India or where he happens to be at the time the proceedings are initiated.
Let us now apply the said principles to the
instant case.
To recapitulate the relevant facts : the
respondent was born in India in Ludhiana District; he was married to the first
appellant in the year 1930; he migrated to Africa and took up a job there 85 as
a police officer; he came back to India in or about 1943 and lived with the
first appellant in a house at Hans Kalan for about 5 months and thereafter he
left again for Africa;
5 or 6 years thereafter, he again came to
India on leave and took her to Africa where she gave birth to a daughter; the
appellant was sent back to India and she was staying in Ludhiana District with
the child; the respondent's mother is staying in the aforesaid village in the
same district and it is also not disputed that the respondent has purchased
property worth Rs. 25,000/in Ludhiana District in the name of his minor
children by his second wife; when the petition was filed he was admittedly in
the district of Ludhiana---indeed, notice was served on him in that district,
he filed a counter affidavit, obtained exemption from personal appearance at
the time of hearing and thereafter left for Africa. It is not necessary in this
case to express our opinion on the question whether on the said facts the
respondent "resides" in India; but we have no doubt that he
"last resided" in India,. We have held that temporary residence with
animus manendi will amount to residence within the meaning of the provisions of
the subsection. When the respondent came to India and lived with his wife in
his or in his mother's house in village Hans Kalan, he had a clear intention to
temporarily reside with his wife in that place. He did not go to that place as
a casual visitor in the course of his peregrinations. He came there with the
definite purpose of living with his wife in his native place and he lived there
for about 6 months with her. The second visit appears to be only a flying visit
to take her to Africa. In the circumstances we must hold that he last resided
with her in a place within the jurisdiction of the First Class Magistrate,
Ludhiana. That apart, it is admitted that he was in a place within the
jurisdiction of the said Magistrate on the date when the appellant filed her
application for maintenance against him. Thee said Magistrate had jurisdiction
86 to entertain the petition, as the said proceedings can be taken against any
person in any district where he "is". We, therefore-, hold that the
First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition
under s. 488 (8) of the Code.
The next question relates to the quantum of
maintenance to be awarded to the appellants. The Magistrate, on a consideration
of the entire evidence, having regard to the salary of the respondent, and the
value of the property he purchased awarded maintenance to the wife at the rate
of Rs. 100/per month for herself and at the rate of Rs. 50/per month for the
maintenance of her minor child. The Additional Sessions judge, on a
reconsideration of the evidence, accepted the finding of the learned Magistrate
and confirmed the quantum of maintenance awarded by him. The finding is a
concurrent finding of fact the correctness whereof cannot ordinarily be
questioned in a revision petition in the High Court. that is why the only
question argued before the High Court was that of jurisdiction. As we have held
that the view accepted by the High Court was wrong, we set aside the order of
the High Court and restore that of the Magistrate First Class, Ludhiana.
In the result the appeal is allowed.
Appeal allowed.
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