(1) This reference raises a short but interesting question as to the jurisdiction of a Magistrate under Section 488(8) of the Code of Criminal Procedure. The Second respondent Shantabai is the wife of the first respondent Vishnupant. On 25th January 1963 the wife filed an application for maintenance under Section 488 of the Code of Criminal Procedure before the Judicial Magistrate. First class, Patoda, in District Bhir. At one stage, an ex parte order came to be passed against the husband on 30-3-1963 awarding maintenance to the wife and to her daughter. But that order was beside on 26-8-1963 and then commenced the proceedings out of which the present reference arises. On 16-9-1963 the husband filed a written statement wherein he took an objection to the jurisdiction of the Magistrate at Patoda to try the proceedings under Section 488. The Magistrate over-ruled the objection by his order dated 21-10-1963 and proceeded with the trial of the application. Three witnesses were examined on 22-10-1963 but in the meanwhile the husband had moved the Sessions Judge in revision and obtained stay of the trial. The Session Judge has in revision held that the Judicial Magistrate, first class, Patoda had no jurisdication to try the wife's application under Section 488 and has made a recommendation to this Court that the application should be dismissed leaving it open to the wife to file a similar application in the 'competent court of the judicial Magistrate Bhir.'
(2) As pointed out by the Sessions Judge, the matter falls to be determined under the provisions of Section 488(8) which runs 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, or , as the case may be, the mother of the illegitimate child.'
The question is what is meant by the word 'district' and by the somewhat vague expression 'Proceedings.... may be taken.... in any district, where he resides or is..........' The view which the Sessions Judge has taken is that though the sub-section uses the word 'district' the word is used 'to distinguish the District in which the husband is living from that in which the wife may be living at the time of the application for maintenance and it does not mean that any Court within the district in which the husband lives will have jurisdiction to try that application'. Upon this view the Sessions Judge held that the proper Court to take congnizance of the petition in the first case is the Court within whose jurisdiction the husband resides.
(3) It seems to me that the interpretation which the learned Sessions Judge has put upon the word 'district' is not correct. It is not only the word 'district' which one must have regard to, but the entire expression 'any district where he resides'. There appears to be no reason why the express use of the word 'district' by the Legislature should be given any meaning different from the normal connotation of that word and I can see no reason at all why in spite of the use of the words 'any district where he (the husband) resides', it should be limited only to a Court within that district within whose jurisdiction the husband resides.
(4) The object of the section appears to be clear enough : Where a husband and wife have fallen out and the wife is required to make an application either for herself or for her child, she should not be put to the harassment of going to the very place where the husband is at the time of the application residing. If that were so, the recalcitrant husband who has fallen out with the wife could move about from place to place and thus make it impossible for the wife to choose a place in which to prefer her application for maintenance. At the same time it is clear that a fractious woman should not be enabled to harass her husband by making an application at any place very far from the place where the husband resides after their separation, and it seems to me that having regard to these rival claims of the two spouses the legislature limited the jurisdiction under Section 488 to the district where the husband resides, that is to say, the jurisdiction was given to any magistrate in the district so long as the husband, was resident in the district over which the magistrate held jurisdiction.
(5) In this respect it may be pointed out that the exercise of jurisdiction under Section 488 is limited to a Presidency Magistrate or a Magistrate of the first class and a first class Magistrate's Jurisdiction is defined by Section 12 of the said Code. The jurisdiction under Section 12 (1) is conferred upon a Magistrate districtwise and it is with reference to that jurisdiction that it seems to me the provisions of the other sections of the Code will have to be construed, particularly Section 488(8).
(6) The view I take is supported by the weighty remarks of a Division of this Court in one of the earliest case In re the Petition of Shaikh Fakrudin, ILR 9 Bom 40. That was also a case under Section 488 of the Criminal Procedure Code, and raised a question of jurisdiction. No doubt, in that case the precise question which fell to be determined was the question whether the wife could file her application in a 'district' different from the 'district' in which the husband resided. But in connection with the question the Division Bench discussed the provisions of the section and the intention of the Legislature is enacting it. West J., who delivered the judgment, referred to the jurisdiction exercised by courts in such matters in England prior to the enactment of the Code of Criminal Procedure and he pointed out that 'The State of the law in England referred to in the foregoing observations must have been familiar to the Indian Legislature when the Code of Criminal Procedure was passed'. Therefore, it was with reference to the jurisdiction exercised by English Courts in analogous matters that the learned Judge construed the provisions of the Code of Criminal Procedure.
(7) He held in that case that since the section refers to the district in which the husband resides or is, the wife could not prefer her application in a different district, but at the same time the learned Judge was concerned to point out that the provisions of Section 488(7) (as it then existed) now sub-section (8), conferred the jurisdiction districtwise. At pate 46 he observed :
'The above consideration lead us to the conclusion that the jurisdiction in the case of maintenance is to be exercised only in the district in which the person on whom any final order that may be passed in the proceedings is to operate has his residence at the time of making the complaint. Any other construction of the enactment would defeat the intention of the Legislature.'
(8) No doubt, in that case it had appeared to the Division Bench that the wife was taking undue advantage of the provisions of the Code, in that she had preferred her application in a district and indeed in a State different from the district and the State in which the husband was residing and, in that case, the Division Bench interpreted the section to mean the district in which the husband resides. Before the Division Bench a contrary view taken by the Allahabad High Court was referred to and West J. remarked, 'The consequences of maintaining the view taken in that case would be disastrous. Any fractious woman might thus make her husband's life miserable by wilfully going from place to place, and dragging him after her by repeated complaints, all perhaps equally unreasonable'. These remarks were, with all respect, undoubtedly apposite in that case, but the wife in the present case has moved a magistrate in the very district in which the husband resides and I can see nothing wrong in it. To use the same reasoning and language as West J. used if the view were to be taken that the wife should file her application only in the Court where the husband resides, any fractious husband may thus make the wife's life miserable by wilfully going from place to place and dragging her after him by constantly changing his residence. Thus, it seems that a balance had to be struck between the possibility of harassment to the husband as well as to the wife and having regard to these circumstances, the Legislature adopted a happy mean by limiting the jurisdiction to the district in which the husband resides or is.
(9) Upon the view which I have taken, it is clear that the trying Magistrate had jurisdiction to entertain the application of the wife; I am unable to accept the Reference. I confirm the order of the trying Magistrate dated 21-10-1963. The proceedings are now returned to the trying Magistrate for disposal according to law.