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Sher Singh Vs. Mt. Amir Kuer - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1927All291; 101Ind.Cas.670
AppellantSher Singh
RespondentMt. Amir Kuer
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........order of a magistrate of the first class of agra, dated the 6th of september 1926, requiring one sher singh (applicant before the judge) to pay rs. 75 per mensem as maintenance to mt. amir kunwari (opposite-party before the judge).2. the facts are as follows: the parties are husband and wife. up to march 1925 they lived at bhatgaon, rohtak, punjab. in that month they came to jarauli in the agra district on a visit to the father of sher singh's daughter-in-law. they stayed here for a period of two months, during which period sher singh occasionally visited his home in bhatgaon. at the end of these two months sher singh deserted his wife and returned to the punjab.3. the magistrate, on an application by the wife under section 488, criminal p.c., has ordered sher singh to pay her.....

Ashworth, J.

1. This case arises out of a reference by the Sessions Judge of Agra under Section 435, Criminal P.C., asking this Court to interfere in exercise of its power under Section 439, Criminal P.C., with an order of a Magistrate of the First Class of Agra, dated the 6th of September 1926, requiring one Sher Singh (applicant before the Judge) to pay Rs. 75 per mensem as maintenance to Mt. Amir Kunwari (opposite-party before the Judge).

2. The facts are as follows: The parties are husband and wife. Up to March 1925 they lived at Bhatgaon, Rohtak, Punjab. In that month they came to Jarauli in the Agra district on a visit to the father of Sher Singh's daughter-in-law. They stayed here for a period of two months, during which period Sher Singh occasionally visited his home in Bhatgaon. At the end of these two months Sher Singh deserted his wife and returned to the Punjab.

3. The Magistrate, on an application by the wife under Section 488, Criminal P.C., has ordered Sher Singh to pay her maintenance. The Sessions Judge is of the opinion that a Magistrate of Agra had no jurisdiction because Sher Singh at the time of the filing of the application under Section 488 neither resided in Agra nor was in Agra, and because he could not be said to have last resided with his wife in Agra. The Sessions Judge relies upon a decision of the Chief Judge of the Oudh Chief Court in Ramdei v. Jhuni Lal A.I.R. 1926 Oudh 268. This decision held that a stay in a place for a week by a person having a fixed place of residence elsewhere does not constitute residence in that place. The decision was based on a Full Bench decision of the Allahabad High Court in Flowers v. Flowers [1910] 32 All. 203 where the expression 'residence' as used in Section 3 of the Indian Divorce Act 1869 was held nod to apply to a flying visit to a place for a temporary purpose made without any intention of remaining.

4. There can be no question of the correctness of the Allahabad decision on the facts. A flying visit for the purpose of attending business in connexion with a lodge of free masons cannot amount to residence. In the Lucknow case also the decision would appear to me to be sound. In that case the husband who deserted his wife brought her (his wife) to the house of her brothers in Lucknow in order to leave her there. This could not be called residence of husband and wife. The facts in the present case are different. The husband and wife had been in Agra for two months. During that time the husband had gone back to his permanent residence once or twice but had returned to Agra. 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 it 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. The expression 'resided' in Clause 8. of that section in my opinion will include a temporary residence and is not to be confined to permanent residence.

5. With these remarks the case may be returned to the Sessions Judge and the application of Sher Singh in revision will stand dismissed.

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