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Sadasivuni Puspa and anr. Vs. S. Divakar Rao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 22 of 1982
Judge
Reported in1985(I)OLR477
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125 and 126(1)
AppellantSadasivuni Puspa and anr.
RespondentS. Divakar Rao
Appellant AdvocateJ.P. Mishra, N.C. Pati, A.K. Mahapatra and J.R. Dash
Respondent AdvocateB.B. Ratho, Manoj Misra, R.P. Mohapatra and P.K. Bhuyan
DispositionApplication allowed
Excerpt:
.....followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not..........and petitioner no. 2 is the minor son of the opp. party. marriage between petitioner no.: 1 and opposite party was solemnised on 21.4.1968 and in 1970 petitioner no. 1 gave birth to petitioner no. 2. sometime thereafter the opposite party started ill-treating petitioner no. 1 and refused to give food and clothings to the petitioners and ultimately drove her and her son out of his house on 23.6.1971. petitioner no. 1 finding no other shelter came to the house of her brother who was serving at rayagada. the opposite party has also in the mean time kept a concubine. according to the petitioners the opp. patty is getting a monthly salary of rs. 1000/- and as they have no other means to maintain themselves, they have claimed maintenance of rs. 300/- per month for petitioner no. 1 and rs......
Judgment:

J.K. Mohanty, J.

1. This revision arises out of an order passed by the Subdivisional Judicial Magistrate, Rayagada on a petition under Section 125 of the Criminal Procedure Code refusing to grant maintenance mainly on the ground that he has no jurisdiction to hear the case.

2. Petitioner No. 1 is the wife and petitioner No. 2 is the minor son of the opp. party. Marriage between petitioner No.: 1 and opposite party was solemnised on 21.4.1968 and in 1970 petitioner No. 1 gave birth to petitioner No. 2. Sometime thereafter the opposite party started ill-treating petitioner No. 1 and refused to give food and clothings to the petitioners and ultimately drove her and her son out of his house on 23.6.1971. Petitioner No. 1 finding no other shelter came to the house of her brother who was serving at Rayagada. The opposite party has also in the mean time kept a concubine. According to the petitioners the opp. patty is getting a monthly salary of Rs. 1000/- and as they have no other means to maintain themselves, they have claimed maintenance of Rs. 300/- per month for petitioner No. 1 and Rs. 200/- per month for petitioner No. 2. The opposite party contested the application and filed counter denying the allegations of ill-treatment made by the petitioners. According to him, he has not neglected or refused to maintain the petitioners. As he petitioner No. 1 voluntarily left him, and did not come back, he filed an application for restitution of conjugal right in the Court of the Sub-Judge, Visakhapatnam which was allowed and in spite of the order of the Court, petitioner did not come to him. Ultimately a decree of divorce was passed. In view of this the petitioners are not entitled to any maintenance. In order to prove the case petitioner No. 1 has examined herself as P. W. 1 and the opposite party has examined himself as O. P. W. 1.

3. It is not disputed in his case that petitioner No 1 is the wife who has been divorced in the meantime and is entitled to maintenance along with her son, petitioner No. 2. The learned Court has found that there is no legal cruelty as alleged by petitioner No. 1 in view of the finding in the Divorce Case in O. P. No. 201/80 Ext. 1. But from the evidence of petitioner No. 1 and in the facts and circumstances of the case it is clear that the opposite party neglected and refused to maintain the petitioners.

4. Regarding the question of jurisdiction, petitioner No. 1 in her evidence has stated that after she was driven out by the opp. party she remained with her brother, who was posted at Rayagada. On the date of filing of the application for maintenance she was staying with her brother and during the year 1978-79 she and her son were staying with her brother at Rayagada in the district of Canjam. Subsequently her brother was transferred and was posted at Khariat and at the time of the hearing of the case in the year 1981 she was staying with her brother at Khariar (in Kalahandi district). The trial Court seems to be of the view that as at the time of hearing of the case petitioners were not residing at Rayagada but were residing at Khariar i.e, in another district, he has not jurisdiction to hear the case in view of Section 126 of the Criminal Procedure Code. Section 126(1) Cr. P. C. reads as follows:

'Procedure :-(1) Proceedings under Section 125 may be taken against any person in any district-

(a) Where he is, or

(b) Where he or his wife resides, or

(c) Where he last resided with hit wife, or as the case may be, with the mother of the illegitimate child.'

So according to clause (1) (b) of Section 126 Cr. P. C the proceedings under Section 125 Cr. P. C. may be taken against any person in any district where he or his wife resides. The Dictionary meaning of 'reside' is 'to dwell permanently or continuously ; have settled abode for a time; have one's residence or demicile'. 'Reside' meant something more than a flying visit or a casual stay. There shall be an intention to stay for a period, the length of which depending upon the circumstances of each case. A parson resides in a place if he makes it (sic) even temporarily. In order to find out whether (sic) actually resided or they had some intention to remain at a place and not merely to pay casual visit, it should be considered whether the period of stay was merely for a visit or for residence although temporary. In this case petitioner No. 1 was residing with her brother at Rayagada at the time of making the application and continued to stay there for quite sometime till her brother was transferred to Khariar. So it cannot be said that the petitioners did not reside at Rayagada where the proceeding was taken. In view of this, the finding of the trial Court that he has no jurisdiction to decide the case cannot be sustained.

Considering the facts and circumstances of the case, I am of the view that the trial Court had jurisdiction to hear the case.

5. The trial Court has not given any finding about the quantum of maintenance to be awarded to the petitioners. According to petitioner No. 1, her husband gets a salary of Rs. 1000/- per month whereas the opposite patty in his deposition has stated that he gets a total salary of Rs. 373.09 paise per month. The opposite party is working as a Headclerk in the Eastern Railway and according to his own statement he gets more than Rs. 700/- per month. The petitioners have no other means to maintain themselves.

6. So considering the facts and circumstances of the case, I am of the view that each of the petitioners be awarded a monthly maintenance of Rs. 125/- which they are entitled to get from the date of application.

The revision application is allowed.


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