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Jagir Kaur and anr. Vs. Jaswant Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1963SC1521; (1963)65PLR814; [1964]2SCR73
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 2(1), 488 and 488(8)
AppellantJagir Kaur and anr.
RespondentJaswant Singh
Cases ReferredIn Charan Das v. Surasti Bai A.I.R.
Books referredOxford Dictionary; Halsbury's Laws of England, Vol. 36, 3rd edn.
Excerpt:
.....for the first time before it and we do notsee in this case any exceptional circumstances to depart form that practice. thepurpose of the statute would be better served if the word 'resides'was understood to include temporary residence......in the technical sense of domicile. theword 'resides' cannot be given a meaning different from the word'resided' in the expression 'last resided' and, therefore,the wider meaning fits in the setting in which the word 'resides'appears. a few of the decisions cited at the bar may be useful in this context.8. in sampoornam v. n. sundaresan : air1953mad78 , it was held thatthe word 'resides' implied something more than a brief visit but notsuch continuity as to amount to a domicile. in khairunissa v. bashir ahmed(1929) i.l.r. 53 bom. 781., on a consideration of the relevant authorities,it was pointed out that a casual or a flying visit to a place was excluded fromthe scope of the word 'resides'. a full bench of the allahabad highcourt, in flowers v. flowers (1910) i.l.r. 32 all. 203.,.....
Judgment:

Subba Rao, J.

1. This appeal by special leave raises the question of true construction ofs. 488(8) of the Code of Criminal Procedure.

2. Jagir Kaur, the first wife of Jaswant Singh, was married to him in 1930.The said Jaswant Singh was employed in the police force in Africa. The Maklawaceremony took place about 7 years after the marriage, when the respondent wasaway in Africa. Thereafter, the first appellant was taken to hermother-in-law's house, and after living there for a few years she returned toher parental house. 5 or 6 years thereafter, Jaswant Singh came to India on 5months' leave and the couple lived in Jaswant Singh's or his mother's house atHans Kalan - it is not clear to whom the house belongs - for a period of 5months and thereafter Jaswant Singh left for Africa. Before going to Africa,Jaswant Singh married another wife and took her with him to Africa. After 5 or6 years, he came back to India on leave and took the first appellant also toAfrica. There she gave birth to a daughter, the second appellant. As disputesarose between them, he sent her back to India, promising to send her money forher maintenance but did not do so. In the year 1960, he came back to India. Itis also in evidence that he had purchased property in Ludhiana District for Rs.25,000/-. When he was admittedly in India, the first appellant filed a petitionunder s. 488 of the Code of Criminal Procedure in the Court of the First classMagistrate, Ludhiana, within whose jurisdiction the respondent was staying atthat time. The petition was filed by the first appellant on behalf of herselfand also as lawful guardian of the second appellant, who was a minor, claimingmaintenance at Rs. 200/- per month for both of them on the ground that therespondent deserted them and did not maintain them. The respondent filed acounter-affidavit denying the allegations and pleading that he said Court hadno jurisdiction on the ground that he never resided within its district nor didhe last reside with the first appellant in any place within its jurisdiction.The learned Magistrate held that the petitioner-appellant was the wife of the respondentand that the Court had jurisdiction to entertain the petition as the husbandand wife last resided together in the District of Ludhiana. On the merits, heheld that the first wife and her daughter were entitled to maintenance andawarded for the wife maintenance at the rate of Rs. 100/- per month and for thedaughter at the rate of Rs. 50/- per month. The respondent preferred a revisionagainst that order to the Additional Sessions Judge, Ludhiana, and the learnedAdditional Sessions Judge, agreed with the learned Magistrate both on thequestion of jurisdiction and also on the right to maintenance and dismissed therevision. The husband preferred a revision to the High Court of Punjab againstthat order. The High Court disagreed with both the lower Courts on the questionof jurisdiction. It held that the husband's permanent home was Africa and histwo visits to Ludhiana for temporary periods did not make him one who residedin that district or who last resided with his wife therein. On that view, itset aside the order of the learned Additional Session Judge and dismissed thepetition. Hence the present appeal.

3. Mr. Kapur, learned counsel for the appellants, contended that herespondent had last resided with his wife in his house in village Hans Kalan inthe District of Ludhiana and was also in the said District at the time theapplication under s. 488 of the Code of Criminal Procedure was filed by thefirst appellant and, therefore, the learned Magistrate had territorialjurisdiction to entertain the application. In any view, he argued, therespondent submitted to the jurisdiction of the Magistrate and, therefore, hecould not longer question the validity of his order on the ground of want ofjurisdiction. On the other hand, the learned counsel for the respondent soughtto sustain the order of the High Court for the reasons mentioned therein.

4. At the outset we must say that the first appellant did not raise the pleaof submission either in the pleadings or in any of the three Courts below. Thequestion is a mixed question of fact and law. This Court will not ordinarilyallow such questions to be raised for the first time before it and we do notsee in this case any exceptional circumstances to depart form that practice. Wecannot therefore, permit the first appellant to raise this belated plea.

5. The only question in the appeal is whether the Magistrate of Ludhiana hadjurisdiction to entertain the petition filed under s. 488 of the Code ofCriminal Procedure. The question turns upon the interpretation of the relevantprovisions of s. 488(8) of the Court, which demarcates the jurisdiction limitsof a Court to entertain a petition under the said section. Section 488(8) ofthe Code reads :

'Proceedings under this section may be takenagainst any person in any district where he resides or is, or where he lastresided with his wife, or, as the case may be, the mother of the illegitimatechild.'.

6. The crucial words of the sub-section are, 'resides','is' and 'where he last resided with his wife'. Under theCode of 1882 of Magistrate of the District where the husband or father, as thecase may be, resided only had jurisdiction. Now the jurisdiction is wider. Itgives three alternative forums. This, in our view, has been designedly done bythe Legislature to enable a discarded wife or a helpless child to get the muchneeded and urgent relief in one or other of the three forums convenient tothem. The proceedings under this section are in the nature of civilproceedings; the remedy is a summary one and the person seeking that remedy, aswe have pointed out, is ordinarily a helpless person. So, the words should beliberally construed without doing any violence to the language.

7. The first word is 'resides'. A wife can file a petition againsther husband for maintenance in a Court in the District where he resides. Thesaid word has been subject to conflicting judicial opinion. In the OxfordDictionary it is defined as : 'dwell permanently or for a considerabletime; to have one's settled or usual abode; to live in or at a particularplace'. The said meaning, therefore, takes in both a permanent dwelling aswell as a temporary living in a place. It is, therefore, capable of differentmeanings, including domicile in the strictest and the most technical sense anda temporary residence. Whichever meaning is given to it, one thing is obviousand it is that it does not include a causal stay in, or a flying visit to, aparticular place. In short, the meaning of the word would, in the ultimateanalysis, depend upon the context and the purpose of a particular statute. Inthis case the context and purpose of the present statute certainly do notcompel the importation of the concept of domicile in its technical sense. Thepurpose of the statute would be better served if the word 'resides'was understood to include temporary residence. The juxtaposition of the words'is' and 'last resided' in the sub-section also throwslight on the meaning of the word 'resides'. The word 'is',as we shall explain later, confers jurisdiction on a Court on the basis of acausal visit and the expression 'last resided', about which also wehave something to say, indicates that the Legislature could not have intendedto use the word 'resides' in the technical sense of domicile. Theword 'resides' cannot be given a meaning different from the word'resided' in the expression 'last resided' and, therefore,the wider meaning fits in the setting in which the word 'resides'appears. A few of the decisions cited at the Bar may be useful in this context.

8. In Sampoornam v. N. Sundaresan : AIR1953Mad78 , it was held thatthe word 'resides' implied something more than a brief visit but notsuch continuity as to amount to a domicile. In Khairunissa v. Bashir Ahmed(1929) I.L.R. 53 Bom. 781., on a consideration of the relevant authorities,it was pointed out that a casual or a flying visit to a place was excluded fromthe scope of the word 'resides'. A full Bench of the Allahabad HighCourt, in Flowers v. Flowers (1910) I.L.R. 32 All. 203., expressed the viewthat a mere casual residence in a place for a temporary purpose with nointention of remaining was not covered by the word 'resides'. InBalakrishna v. Sakuntala Bai A.I.R. 1942 Mad. 666., it was held that theexpression 'reside' implied something more than 'stay' andimplied some intention to remain at a place and not merely to pay it a casualvisit. In Charan Das v. Surasti Bai A.I.R. 1940 Lah. 449., it was held thatthe sole test on the question of residence was whether a party had animusmanendi, or an intention to stay for an indefinite period, at one place; and ifhe had such an intention, then alone could he be said to 'reside'there.

9. The decisions on the subject are legion and it would be futile to surveythe entire field. Generally stated nod decision goes so far as to hold that'resides' in the sub-section means only domicile in the technicalsense of that word. There is also a broad unanimity that it means somethingmore than a flying visit to or a casual stay in a particular place. They agreethat there shall be animus manendi or an intention to stay for a period, thelength of the period depending upon the circumstances of each case. Havingregard to the object sought to be achieved, the meaning implicit in the wordsused, and the construction placed by decided cases thereon, we would define theword 'resides' thus : a person resides in a place if he throughchoice makes it his abode permanently or even temporarily; whether a person haschosen to make a particular place his abode depends upon the facts of eachcase. Some illustrations may make our meaning clear : (i) A, living in avillage goes to a nearby town B to attend a marriage or to make purchases andstatus there in a hotel for a day or two. (2) A a tourist, goes from place toplace during his peregrinations and status for a few days in each of the placeshe visits, (3) A, a resident of a village, who is suffering from a chronicdisease, goes along with his wife to a town for medical treatment, takes ahouse an lives there for about 6 months. (4) A, a permanent resident of a town,goes to a city for higher education, takes a house and lives there, alone orwith his wife, to complete his studies. In the first two cases, A makes only aflying visit and he has no intention to live either permanently or temporarilyin the places he visits. It cannot, therefore, be said that he'resides' in the places he visits. In the last two illustrations,though A has a permanent house elsewhere, he has a clear intention or animusmanendi to make the places where he has gone for medical relief in one andstudies in the other, his temporary abode or residence. In the last two casesit can be said that though he is not a domicile of those places, he'resides' in those places.

10. The cognate expression 'last resided' takes colour from theword 'resides' used earlier in the sub-section. The same meaningshould be given to the word 'resides' and the word'resided', that is to say, if the word 'resides' includestemporary residence, the expression 'last resided' means the placewhere the person had his last temporary residence. But it is said that even onthat assumption, the expression can only denote the last residence of theperson with his wife in any part of the world and that it is not confined tohis last residence in any part of India. If the words 'where he lastresided with his wife' are construed in vacuum, the construction suggestedby the learned counsel for the respondent may be correct; but by giving such awide meaning to the said expression we would be giving extra territorialoperation to the Code of Criminal Procedure. Section 2(1) of the Code extendsthe operation of the Code to the whole of India except the States of Jammu& Kashmir; that is to say, the provisions of the Code, including s. 488(8)thereof, have operation only throughout the territory on India, except theStates of Jammu & Kashmir. If so when sub-s. (8) of s. 488 of the Code,prescribing the limits of jurisdiction, speaks of the last residence of aperson with his wife, it can only mean his last residence with his wife in theterritories of India. It cannot obviously mean his residing with her in foreigncountry, for an Act cannot confer jurisdiction on a foreign court. It would,therefore, be a legitimate construction of the said expression if we held thatthe district where he last resided with his wife must be a district in India.

11. In In re Drucker (No. 2) Basden [(1902) 2 K.B. 210.], Ex Parte [(1902) 2K.B. 210.], the words 'or in any other place out of England,' insub-s. (6) s. 27 of the Bankruptcy Act, 1883, fell to be construed. The wordswere wide enough to enable a Court in England to order that any person who, ifin England, would be liable to be brought before it under the section, shall beexamined in any place out of England, including a place not within thejurisdiction of the British Crown. The Court held that he words must be readwith some limitation and the jurisdiction conferred by that section does notextend to places abroad which are not within the jurisdiction of the BritishCrown. Wright, J., rejecting the wider construction sought to be placed on thesaid words, observed at p. 211 :

'It seems to me that restriction in prima facienecessary. It is impossible to suppose that the Legislature intended to empowerthe Court to order the examination of persons in foreign countries; forinstance, in France or Germany.'

In Halsbury's Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated :

'......the presumption is said to be thatParliament is concerned with all conduct taking place within the territory orterritories for which it is legislating in the particular instance, and with noother conduct. In other words, the extent of a statute, and the limits of itsapplication, are prima facie the same.'

12. It may be mentioned that the said observations are made in the contextof Parliament making a law in respect of a part of the territory under itslegislative jurisdiction. If it has no power at all to make a law in respect ofany foreign territory, the operation of the law made by it cannot obviouslyextend to a country over which it has no legislative control. It is, therefore,clear that s. 488(8) of the Code, when it speaks of a district where a personlast resided with his wife, can only mean 'where he last resided with hiswife in any district in India other than Jammu & Kashmir.'

13. The third expression is the word 'is'. It is inserted betweenthe words 'resides' and 'last resided'. The word,therefore, cannot be given the same meaning as the word 'resides' orthe expression 'last resided' bears. The meaning of the word isapparent if the relevant part of the sub-section is read. It reads :'Proceedings under this sections may be taken against any person in anydistrict where he............is.......'. The verb 'is' connotesin the context the presence or the existence of the person in the district whenthe proceedings are taken. It is must wider than the word 'resides' :it is not limited by the animus manendi of the person or the duration or the natureof his stay. What matters is his physical presence at a particular point oftime. This meaning accords with the object of the chapter wherein the concernedsection appears. It is intended to reach a person, who deserts a wife or childleaving her or it or both of them helpless in any particular district and goesto a distant place or even to a foreign country, but returns to that districtor a neighbouring one on a casual or a flying visit. The wife can takeadvantage of his visit and file a petition in the district where he is duringhis stay. So too, if the husband who deserts his wife, has no permanentresidence, but is always on the move, the wife can catch him at a convenientplace and file a petition under s. 488 of the Code. She may accidentally meethim in a place where he happens to come by coincidence and take action againsthim before he leaves the said place. This is a salutary provision intended toprovide for such abnormal cases. Many illustrations can be visualized where theutility of that provision can easily be demonstrated.

14. To summarize : Chapter XXXVI of the Code of Criminal Procedure providingfor maintenance of wives and children intends to serve a social purpose.Section 488 prescribes alternative forums to enable a deserted wife or ahelpless child, legitimate or illegitimate, to get urgent relief. Proceedingsunder the section can be taken against the husband or the father, as the casemay be, in a place where he resides, permanently or temporarily, or where helast resided in any district in India or where he happens to be at the time theproceedings are initiated.

15. Let us now apply the said principles to the instant case. Torecapitulate the relevant facts : the respondent was born in India in LudhianaDistrict; he was married to the first appellant in the year 1930; he migratedto Africa and took up a job there as a police officer; he came back to India inor about 1943 and lived with the first appellant in a house at Hans Kalan forabout 5 months and thereafter he left again for Africa; 5 or 6 yearsthereafter, he again came to India on leave and took her to Africa where shegave birth to a daughter; the appellant was sent back to India and she wasstaying in Ludhiana District with the child; the respondent's mother is stayingin the aforesaid village in the same district and it is also not disputed thatthe respondent has purchased property worth Rs. 25,000/- in Ludhiana Districtin the name of his minor children by his second wife; when the petition wasfiled he was admittedly in the district of Ludhiana - indeed, notice was servedon him in that district, he filed a counter-affidavit, obtained exemption frompersonal appearance at the time of hearing and thereafter left for Africa. Itis not necessary in this case to express our opinion on the question whether onthe said facts the respondent 'resides' in India; but we have nodoubt that he 'last resided' in India. We have held that temporaryresidence with animus manendi will amount to residence within the meaning of theprovisions of the sub-section. When the respondent came to India and lived withhis wife in his or in his mother's house in village Hans Kalan, he had a clearintention to temporarily reside with his wife in that place. He did not go tothat place as a casual visitor in the course of his peregrinations. He camethere with the definite purpose of living with him wife in his native place andhe lived there for about 6 months with her. The second visit appears to be onlya flying visit to take her to Africa. In the circumstances we must hold that helast resided with her in a place within the jurisdiction of the First ClassMagistrate, Ludhiana. That apart, it is admitted that he was in a place withinthe jurisdiction of the said Magistrate on the date when the appellant filedher application for maintenance against him. The said Magistrate hadjurisdiction to entertain the petition, as the said proceedings can be takenagainst any person in any district where he 'is'. We, therefore, holdthat the First Class Magistrate, Ludhiana, had jurisdiction to entertain thepetition under s. 488(8) of the Code.

16. The next question relates to the quantum of maintenance to be awarded tothe appellants. The Magistrate, on a consideration of the entire evidence,having regard to the salary of the respondent, and the value of the property hepurchased awarded maintenance to the wife at the rate of Rs. 100/- per monthfor herself and at the rate of Rs. 50/- per month for the maintenance of herminor child. The Additional Sessions Judge, on a reconsideration of theevidence, accepted the finding of the learned Magistrate and confirmed thequantum of maintenance awarded by him. The finding is a concurrent finding offact the correctness whereof cannot ordinarily be questioned in a revisionpetition in the High Court. That is why the only question argued before theHigh Court was that of jurisdiction. As we have held that the view accepted bythe High Court was wrong, we set aside the order of the High Court and restorethat of the Magistrate First Class, Ludhiana.

17. In the result the appeal is allowed.

18. Appeal allowed.


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