S.N. Katju, J.
1. This is a reference by the Sessions Judge of Jaunpur arising out of an application made by Smt. Sultan Jahan alias Rehana against her husband Mohmmad Maroof under Section 488 of the Code of Criminal Procedure.
2. It was alleged by the applicant that she was married to Mohammad Maroof on 20.10.1960 and lived with him as his wife till 1962, She was taken by Mohammad Maroof to the house of her mother in village Bharauli at the end of 1962 but he went away after residing with her at that place for three or four days. She gave birth to a son in October 1961. It was further alleged by her that thereafter Mohammad Maroof came to her for a couple of hours, but had not visited her for about a year. He had not paid any maintenance allowance to her or to her child since she came at Bharauli in 1962. It was further alleged that Mohammad Maroof has 70-75 bighas of land and was the manager and partner in a brickkiln. She claimed Rs. 100 for herself and Rs. 25 for her son by way of a maintenance.
3. Mohammad Maroof contended that he was not married to Sultan Jahan and, therefore, denied his liability to pay any maintenance allowance to the applicant. He raised a belated plea that the Magistrate had no jurisdiction to entertain the application since he resided in the district of Azamgarh and had not resided at Bharauli in the district of Jaunpur with the applicant.
4. The learned Magistrate repelled the plea of jurisdiction on the ground that it was raised at a belated stage and Mohd. Maroof had not been prejudiced by the trial. He further observed:
It is also proved that Maroof did reside with Sultan Jahan for the last time in Bharauli in the district of Jaunpur and this Court was, therefore, competent to take cognizance of the case.
5. The learned Magistrate found that Mohd. Maroof had 'neglected to maintain his wife and his minor son' and directed him to pay Rs. 15 per month to the applicant and Rs. 10 to his minor son, per month, during his minority as maintenance allowance. On revision the learned Sessions Judge of Jaunpur expressed the view that since Mohammad Maroof was a resident of village Sukkhipur in the district of Azamgarh, his casual stay at village Bharauli in the district of Jaunpur could not be construed to mean that he had last resided there with his wife and consequently the learned Magistrate had no jurisdiction to entertain the application. He further repelled the plea that the provisions of Section 531 of the Code of Criminal Procedure cured the defect of want of jurisdiction of the learned Magistrate to entertain the application. He has, therefore, made a reference to this Court recommending that the order of the learned Magistrate be quashed.
6. The only question for consideration is whether the learned Magistrate, who was a First Class Magistrate and Sub-Divisional Magistrate of Shahganj, Jaunpur, had jurisdiction to entertain the application filed by Smt. Sultan Jahan.
7. It is necessary to mention certain relevant facts with regard to the present application. It was filed on 21.8.1964. Mohd. Maroof appeared in the Court before the learned Magistrate on 2.1.1965 and filed his written statement. The applicant examined her witnesses Roohullah and Mohammad Ishaq on 2.3.1965 and examined herself on 23.3.1965. Earlier on 2.3.1965 she had filed her documentary evidence. Thereafter on 27.4.1965 Mohd. Maroof was examined by the learned Magistrate and soon after on that very date he raised his objection challenging the jurisdiction of the learned Magistrate. It could thus appear that the objection with regard to jurisdiction was raised about eight months after the application had been filed and after Mohd. Maroof had filed his written statement and the examination of the applicant's witnesses and the applicant had taken place. It cannot be denied that the objection raised by the opposite party was at a belated stage and after he had submitted to the jurisdiction of the Court. The learned Magistrate repelled the contention of Mohd. Maroof and took the view that his residence at Bharauli gave jurisdiction to the Court and in any case the defect was curable by the provisions o Section 531 of the Code of Criminal Procedure.
8. Before I proceed further, I may refer to a decision of this Court on the question in Satwant Singh v. Smt. Jaswant Kaur 1956 A11 WR (HC) 26. In the aforesaid case, an application had been filed by one Smt. Jaswant Kaur against her husband under Section 488, Cr.P.C. In that application it was stated that the husband was in the Navy and was residing at Bombay. There was nothing in the application to show as to how the Nainital Court where the application was filed had jurisdiction to entertain the application. The husband Sawant Singh denied the allegation made by his wife and contended that he was always willing to take her back to his house and maintain her as his wife. It was further contended by him that he had filed a suit for restitution of conjugal rights in a Delhi Court within whose jurisdiction he was residing.
Sawant Singh further contended that the Nainital Court had no jurisdiction to entertain application under Section 188, Cr.P.C. The learned Magistrate held that the Nainital Court had jurisdiction to entertain the application on the ground that the husband had visited his wife at Haldwani and Nainital and had given jurisdiction to the Court at Nainital. Mr. Justice Roy expressed the view that a casual visit of the nature alleged by the wife could not amount to 'residing' within the meaning of Section 488(8) of the Code of Criminal Procedure. He further held that the Magistrate had erred in overruling the contention of the husband that the Court had no jurisdiction to entertain the case. He held that the provisions of Section 531 could not apply to the case. He observed:
Section 531 does not entitle a Magistrate to proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction. It does not in fact confer jurisdiction on the Magistrate.
It is obvious that in the aforesaid case the objection with regard to the jurisdiction had been raised by the husband as soon as it was possible for him to raise it and considering the circumstances of that case, the Magistrate should not have assumed jurisdiction in entertaining the application.
The circumstances of the present case are wholly different. As mentioned above, the husband did not challenge the jurisdiction of the Court at the time when he filed his written statement and he allowed his wife to proceed with the matter and produce her witnesses and file her documentary evidence. It was only after he had been examined that he challenged the jurisdiction of the Court. I have no hesitation in holding that under the circumstances of the present case Mohd. Maroof must be deemed to have submitted to the jurisdiction of the Court and even if the learned Magistrate took an erroneous view with regard to the casual visit by Mohd. Maroof to his wife at Bharauli, the defect with regard to the jurisdiction of the learned Magistrate in entertaining the application made to him was curable by the provisions of Section 531 of the Code of Criminal Procedure.
9. It was observed in Gangabai v. Pamanmal AIR 1938 Sind 223, that Section 488(8) should not be so strictly construed as to deprive the woman, who often in these cases is helpless, of assistance from the Court which is most easily accessible to her.
10. As mentioned above Smt. Sultan Jahan had pursued her remedy in the Court of the learned Magistrate of Jaunpur for nearly eight months and it would have caused her considerable hardship if it was held at a belated stage that the Magistrate had no jurisdiction to entertain the application and thus compel her to pursue her remedy before a different Magistrate.
11. The question of the applicability of the provisions of Section 531 of the Code of Criminal Procedure in circumstances where the application under Section 488 of the Code of Criminal Procedure had been made in a wrong Court was considered in Sitaram Kalwar v. Sukia Kalwarin : AIR1929Cal336 ; Moung Paik v. Ma Ohn Sint AIR 1939 Rang 210; Hari Singh v. Mt. Parbati ; and Ram Saran v. Smt. Soman Wati 1964 (1) Cri LJ 488 (Punj). In all the aforesaid cases it was held that the irregularities of proceedings before the Court of the learned Magistrate in another district were cured in view of Section 531 where it was found that no prejudice had been caused to the respondent by the trial in a wrong Court.
12. In the case of Sitaram Kalwar : AIR1929Cal336 (supra), a Division Bench of the Calcutta High Court observed as follows:
In our opinion, Section 531, Criminal P.C., should apply to the case and the order which the learned Magistrate passed under Section 488, Criminal P.C. would not be vitiated merely because the proceedings were held in a wrong district.
In the case of Ram Saran 1964(1) Cri LJ 488 (Punj) (supra), Tek Chand, J., observed:
The policy underlying Section 531 of the Code of Criminal. Procedure is to overlook irregularities on account of want of local jurisdiction unless failure of justice has been occasioned because of such irregularities. This provision cures defects relating to proceedings in a wrong forum.
He quoted with approval the following observations of Kapur, J., in the case of State v. Abdul Hamid :
The principle of criminal law in regard to jurisdiction where the defect sought to be set up is one of territoriality is that unless prejudice is shown, the proceedings cannot be held to be null and void.
That is the principle which is laid down in Section 531 of the Criminal Procedure Code and Section 537 lays down that in order to determine whether an irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
13. There is nothing in the present case to suggest that any prejudice had been caused to Mohammad Maroof by reason of the fact that the application was entertained by a Magistrate of Jaunpur. He had filed his written statement and he was given every opportunity to put forward his own case and all the pleas raised by him were fully considered by the learned Magistrate. I have no hesitation in holding that no prejudice was caused to Mohammad Maroof by the fact that the application under Section 488, Cr.P.C., against him was considered and decided by the learned Magistrate of Jaunpur. If he had challenged the jurisdiction of the Court at the initial stage, then under the circumstances perhaps the Magistrate would not have proceeded with the consideration of the application before him and if he had persisted in doing so, then it could have been said that the learned Magistrate was assuming jurisdiction in a matter where he had none. The circumstances of the present case are different. Mohammad Maroof challenged the jurisdiction of the Court at a very belated stage and if his contention was repelled by the learned Magistrate and he proceeded on with the matter and decided the application made before him and no prejudice was caused to Mohammad Maroof, the irregularity, if any, with regard to the absence or jurisdiction of the learned Magistrate was cured by the provision of Section 531 of the Code of Criminal Procedure.
14. I, therefore, do not agree with the view of the Sessions Judge that the learned Magistrate had no jurisdiction to entertain the application and his order should be quashed. It must be held that the order passed by the learned Magistrate is a valid order.
15. The reference is rejected.