Report No. 119

Chapter IV

Parallels for Guidance

4.1. The serious legal impediments caused by distance experienced here had also figured in a comparable but different situations. A discarded or divorced wife in search of maintenance, or one seeking divorce or restitution of conjugal rights, etc., faced the same problems in view of creating of exclusive fora.

4.2. Way back at the turn of the last century, it was felt that discarded and divorced wives must have easily accessible expeditious remedy to recover maintenance from their errant husbands. Section 488 of the Code of Criminal Procedure, 1898, conferred power on the Magistrate to award maintenance to a wife, who is unable to maintain herself, from her husband. The right also expanded to include illegitimate children and later even parents. Sub-section (8) of section 488 provided for jurisdiction of courts to award maintenance. Under it, proceedings 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, with the mother of the illegitimate child.

Now, after the wife is discarded, she would hardly be in a position to reside in the same village or town where she last resided with her husband, and it would be humanly impossible for the wife to travel to the place where the husband is residing and to initiate action in a court of competent jurisdiction. The courts recognised that the provision contained in section 488 of the Code of Criminal Procedure, 1898, aimed at preventing vagrancy and starvation.

The courts also recognised that under Indian conditions, women being unable to remain economically independent, and once the husband discards or divorces the wife, the only option left to the wife is destitution or vagrancy. Any civilized society must guard against this. Therefore, even though claiming maintenance is ordinarily considered as civil right, a cheap, expeditious remedy was provided. However, this remedy could not be availed of because of the forum being inconvenient and uncongenial. The Law Commission examined this aspect and recorded its observation as under:-

"Under sub-section (8), the place where the wife resides after desertion by the husband is not material as regards the venue of the proceedings, though the place where the husband resides-even temporarily-is relevant. Often deserted wives are compelled to live with their relative far away from the place where the husband and wife last resided together. They would be put to great harassment and expenditure, unless the venue of the proceeding is enlarged so as to include the place where they may be residing on the date of the application."1

The Law Commission accordingly recommended re-drafting of the provision. Section 126 of the Code of Criminal Procedure, 1973, appears to have taken note of this recommendation. It reads as under:-

"126. Procedure (1) Proceedings under section 125 may be taken against any person in any district

(i) where he is; or

(ii) where he or his wife resides; or

(iii) where he last resided with his wife or, as the case may be, with the mother of the legitimate child.

This provision enables the discarded or divorced wife to initiate proceedings where she resides. That will make access to the forum easy and within accessible limits. Situation in terms of justice being identical, this provision can provide guidance in the present situation.

1. LCI, 41st Report, Vol. I.

4.3. Similar defects were also noticed during the working of the unamended section 19 of the Hindu Marriage Act, 1955. It read as under:-

"Court to which petition should be made.

19. Every Petition under this Act shall be presented to the district court within the loca limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and the wife reside or last resided together."

The Law Commission found numerous infirmities in the actual working of the section. It pointed out:-

"The place of solemnisation of marriage or the last matrimonial home-two of the tests given in the section-may not turn out to be satisfactory, because both may have ceased to be of any importance to the parties, in these days of mobility of population. The place where the parties are both residing-which is the third test-is inapplicable on the facts."1

The recommendation of the Commission received consideration and section 19 was amended by the Marriage Laws (Amendment) Act, 1976. The amended section reads as under:-

"Court to which petition shall be presented.

19. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-(i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."

1. LCI, 59th Report.