1. This is a reference by the Additional Sessions Judge o Nadiad under Section 438, Criminal Procedure Code, asking this Court to interfer in exercise of its powers under Section 439 of the Code of Criminal Procedure with the order of the Honorary Magistrate, First Class, Nadiad, assuming jurisdiction in an application under Section 488 of the Criminal Procedure Cod for maintenance made by the wife against the husband.
2. The facts which are not seriously disputed before us are that the parties are husband and wife and were living together as such at Viramgam for ver nearly twelve or thirteen years in a house hired by the husband who has been working as a talati at that place. The husband had also hired a house at Nadiad for storing his kit after separation from his coparceners. In 193' or thereabouts the wife left her husband and came to Nadiad and lived ii the hired house of the husband. The latter did not provide her with main tenance and she accordingly applied on November 27, 1935, to the Honorary Magistrate, First Class, Nadiad, under Section 488 of the Code of Criminal Procedure, for an order for maintenance against the husband in which she alleged that in Samvat Year 1990 she last resided with her husband a Nadiad and that in consequence the Court had jurisdiction to entertain her petition. The learned Magistrate found that the husband was a native of Nadiad and had hired a house there, that he had a permanent place o: residence at Nadiad, that his parents resided there and that the hired house at Nadiad 'was used off and on for the joint residence of the parties or their visits to Nadiad which took place occasionally '. He, therefore, con eluded that although the husband was a talati at Viramgam for a number of years, his place of residence was at Nadiad and the Court at Nadiad had jurisdiction to entertain the petition.
3. Clause (8) of Section 488 of the Criminal Procedure Code provides as follows :-
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.
It was admitted by the learned counsel for the wife that at the date of the petition the husband had been residing at Viramgam for the purpose of his duties as talati and that since the wife's separation from Viramgam the) never lived together at Nadiad as husband and wife. He has argued that the term ' resides ' and the phrase ' last resided ' imply animus revertend'. on the analogy of the law of domicile, that as the husband is a native of Nadiad and has hired a house there, presumably his intention is to settle down at Nadiad, and that, therefore, his residence can be said to be at Nadiad also. The learned counsel has relied on Sher Singh v. Amir Kunwar I.L.R. (1927) All. 479 in support of the view that mere possession of a residence by the husband is sufficient to confer jurisdiction on the Magistrate of that place in proceedings under Section 488 of the Code of Criminal Procedure. On a careful reading of the judgment of Ashworth J. in Sher Singh's case, we are not satisfied that it goes so far as to lay down that the term 'resides' in Clause (8) of Section 488 can in its widest implication include the mere fact of possession of a residence irrespective of the actual residence of the owner therein. In that case the parties lived at Bhatgaon in the Punjab till March, 1925. In that month they came to Jarauli in the Agra district on a visit to a relative. They stayed there for a period of two months, during which period the husband occasionally visited his home in Bhatgaon. At the end of that two months' period the husband deserted his wife and returned to the Punjab. It was held that the expression ' resided ' in the section included a temporary residence and was not to be confined to permanent residence. The relevant passage in the judgment upon which reliance has been placed is as follows (p. 481) :-
There can be no question that a person can have two residences. He may have a permanent place of residence and a temporary place of residence. The point at which a visit or a stay becomes capable of being held to be residence is one that is difficult to define. In the present case I consider that a stay for two months in a temporary place, with occasional visits in that period to the permanent place of residence, should be regarded as amounting to temporary residence sufficient within the meaning of section 488.
It does not follow that it is not necessary to occupy the temporary residence for the purposes of Clause (8) of Section 488. The Court was there concerned with the duration, and not with the fact of occupation which could be regarded as sufficient to satisfy the residential test laid down by the clause.
4. In a very recent case of this Court in Sama Jetha v. Bai Wall I.L.R. (1930) 54 Bom. 548 : 32 Bom. L.R. 764 it was held that the expression ' last resided ' in Clause (8) of Section 488 of the Criminal Procedure Code meant both permanent as well as temporary residence. In that case the period of temporary residence was about two months. In Khairunissa v. Bashir Ahmed I.L.R. (1929) 53 Bom. 781 : 31 Bom. L.R. 931 the authorities were reviewed by Patkar J. on the subject, and it was held that unless there was animus manendi a casual or flying visit to a place was excluded from the scope of the section. There is no authority, and, the plain language of Section 488 does not afford justification, for holding that the mere hiring or purchase of a, residential building at a place would confer jurisdiction on the Magistrate of that place to entertain petitions under Section 488 against the owner.
5. We have no doubt upon the record that the husband last resided with his wife the petitioner at Viramgam within the meaning of Clause (S) of Section 488 of the Code of Criminal Procedure and was residing there at the time of the filing of the application, and not at Nadiad. Therefore, the learned Magistrate of had no jurisdiction.
6. We accordingly accept the reference and quash the proceedings before the magistrate.