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P.V. Isaac Vs. Mrs. Susan Isaac - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal R.P. No. 13 of 1956 (K)
Judge
Reported inAIR1957Ker61; 1957CriLJ639
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488(8)
AppellantP.V. Isaac
RespondentMrs. Susan Isaac
Appellant Advocate K.T Ninan, Adv.
Respondent Advocate P. Govindan Nair and; P.K. Kurien, Advs.
DispositionRevision dismissed
Cases ReferredCharan Das v. Surasti Bai
Excerpt:
- - in defining the jurisdiction regulating proceedings in respect of such a claim, the legislature had made a conscious departure form the normal rale that such proceedings ought to be initiated in the court within whose territorial jurisdiction the husband is residing, by conferring such jurisdiction on a different court also within whose territorial jurisdiction the husband bad last resided with his wife. 15/195.5, must fail. applying these tests to the facts of the present case, it cannot be said that the revision petitioner bad been making only casual visits to his own palathingal house at kottayam in december 1951 and in december 1953. on the other hand it is clear that on these two occasions he was residing with his wife in that house......a casual or temporary residence at any particular place is sufficient to give the court of that place jurisdiction under sub-section 8 of section 488 o'f the cod'e of criminal procedure.in balakrishna naidu v. mrs. b. sakuntala bai, 44 cri lj 741: (air 1942 mad 666) (b), it was pointed out that this word 'reside' as used in section 488 implies something more than stay and the word 'reside' implies an intention to remain at a place and not merely to pay a casual visit intending shortly to move on to one's permanent residence. to the same effect is the decision in charan das v. surasti bai, air 1940 lah 449) (c), where it was pointed out that the party's intention to stay on for an indefinite period at a particular place will be the sole test to determine whether he was having his.....
Judgment:
ORDER

Sankaran, J.

1. This Revision petition is directed against the continuance of the proceedings in Miscellaneous Case No. 15/1955 on the file of the Sub-Divisional Magistrate's Court at Kottayam. The proceedings in that case have been initiated under Section 488 of the Code of Criminal Procedure by the wife of the revision petitioner, claiming maintenance from him on the ground that he is neglecting to maintain her. While admitting the relationship of the parties, the revision petitioner had denied the several allegations made against him by his wife in support of her claim for separate maintenance from him. He also questioned the jurisdiction of the Sub-Divisional Magistrate at Kottayam to initiate proceedings against him under Section 488 of the Code of Criminal Procedure, the reasons stated by him being that he is permanently residing at Ootacamund outside the territorial jurisdiction of the Sub-Divisional Magistrate at Kottayam,

This matter was considered as a preliminary issue by the learned Magistrate in the light of the evidence given by the petitioner by her own examination and production of certain documents. On 25-10-1956 the learned Magistrate passed an order overruling the objection of lack of jurisdiction and holding that he had jurisdiction to proceed with M. C. 15/1955 even though the counter-petitioner in the case is a permanent resident of Ootacamund for the time being. The counter-petitioner has filed the present revision petition challenging the correctness of the order passed by the learned Magistrate. The point urged in the revision petition is that the Magistrate has assumed a jurisdiction not vested in him under law.

2. It is not disputed that the revision petitioner is residing at Ootacamund and that his residence there commenced some time prior to the filing of M. C. No. 15/1955 before the Sub-Divisional Magistrate's Court at Kottayam. There is also no doubt that Ootacamund is outside the territorial jurisdiction of the Sub-Divisional Magistrate at Kottayam. But the position taken up by the respondent is that her husband the revision petitioner has got a, permanent place of residence at Kottayam also viz., Palathingal House at Kottayam and that it was at Palathingal House that both of them resided last and that such residence is sufficient to confer jurisdiction on the Sub-Divisional Magistrate at Kottayam to entertain M. C. No. 15/1955. The question of jurisdiction in respect of such proceedings is governed by the Special provision contained in sub-section 8 of Section 488 of the Code of Criminal Procedure.

That sub-section states that:

'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 last portion of this clause applies to cases where proceedings are initiated for the payment of maintenance to a child born of illegitimate union and not of lawful wedlock. The earlier portion of the Clause governs cases where the claim for maintenance is by the legal wife as against her husband. In defining the jurisdiction regulating proceedings in respect of such a claim, the legislature had made a conscious departure form the normal rale that such proceedings ought to be initiated in the court within whose territorial jurisdiction the husband is residing, by conferring such jurisdiction on a different court also within whose territorial jurisdiction the husband bad last resided with his wife.

The idea of making such a special provision is obviously to make it easy for the neglected wife to proceed against the husband for getting maintenance from him. In view of such a special provision all that has to be considered in the present case is whether the revision petitioner's last residence with his wife was at Palathingal House at Kottayam as stated by her. If that point' is found in her favour, the revision petitioner's objection that the Sub-Divisional Magistrate at Kottayam has no jurisdiction to entertain M. C. 15/195.5, must fail. Palathungal House at Kottayam admittedly belongs to the revision petitioner. In paragraph 13 of the written statement he has stated that this building would fetch a monthly rent of Rs. 150/- if let out for commercial purposes.

But he has not let it out on rent. On the other hand he says that he has fully furnished the building and has kept it in a habitable condition. It is in this house that his wife is residing at present. Up to the year 1946 the revision petitioner was away at Delhi where he was employed in Government service. But on occasions when he came to Kottayam he used to reside in his own Palathingal House along with his wife. On retirement from Government Service in the year 1946 the revision, petitioner appears to have entertained the idea of settling down at Ootscamund and accordingly lie purchased the Clifton House there.

Thus he has two residential houses of his own, one at Kottayam and the other at Ootacanmnd. From the evidence given by the wife it is seen that she has resided with her husband at both these places. Her residence at Clifton House at Ootacamund was in the year 1910. From April 1948 to October 1919, the revision petitioner-was employed as Rubber Production Commissioner at Kottayam and during this period he was staying at Palathingal House with his wife though he had to be out on tour very often. The wife has further stated that it was while herself and her husband were staying at Palathingal House that the marriage of her eldest daughter was celebrated at that place in May 1950.

For some time thereafter the husband was away from Kottayam and he returned to Kottayam in December 1951 and stayed at Palathingal Housealong with his wife up to March 1952, when he again left Kottayam. The next occasion when he came back to Kottayam was in December 1953 and then also he stayed at Palathingal House along with his wife. This time the stay was only for a week and then he left for Ootacamuncl. According to the wife, the revision petitioner has not thereafter stayed with her at Palathingal House. She has also stated that after December 1951 she has not gone to Ootacamund for residing with her husband at Clifton House. The correctness of these facts as sworn to by the wife is not challenged by the revision petitioner.

But it is urged on his behalf that his visits to Palathingal House in December 1951 and in December 1953 were only casual visits, and as such it cannot be said that he had been residing with his wife at Palathingal House during these periods. No doubt if these were only casual visits, such visits by themselves will not confer jurisdiction under Section 488 of the Code of Criminal' Procedure on a Magistrate of that place except in cases where the husband and wife have no fixed or permanent place of residence. This position has been explained in Khairunnissa, In re (AIR 1929 Bom 410) (A).

In that case it was held that where the husband and wife have a fixed place of abode or permanent place of residence, a casual or temporary residence at any other place will not confer jurisdiction on the court situated at that place. It was further held in the same case that where the husband and wife have no fixed place or abode or permanent place of residence and both are going from place to place, a casual or temporary residence at any particular place is sufficient to give the court of that place jurisdiction under sub-section 8 of Section 488 o'f the Cod'e of Criminal Procedure.

In Balakrishna Naidu v. Mrs. B. Sakuntala Bai, 44 Cri LJ 741: (AIR 1942 Mad 666) (B), it was pointed out that this word 'reside' as used in Section 488 implies something more than stay and the word 'reside' implies an intention to remain at a place and not merely to pay a casual visit intending shortly to move on to one's permanent residence. To the same effect is the decision in Charan Das v. Surasti Bai, AIR 1940 Lah 449) (C), where it was pointed out that the party's intention to stay on for an indefinite period at a particular place will be the sole test to determine whether he was having his residence at that place as distinguished from a casual visit. Applying these tests to the facts of the present case, it cannot be said that the revision petitioner bad been making only casual visits to his own Palathingal House at Kottayam in December 1951 and in December 1953.

On the other hand it is clear that on these two occasions he was residing with his wife in that house. To attract sub-section 8 of Section 488 of the Code of Criminal Procedure, it is not necessary that such residence would have been permanent or for any length of time. All that the sub-section requires is that the husband and the wife must have been residing at the place contemplated by the sub-section in the ordinary sense in which the word 'reside' is understood and that the same must have been their last joint residence prior to the initiation of the proceedings under Section 488. Such residence may have been temporary and only for a short period and even then the same will he sufficient to confer jurisdiction on tho court having territorial jurisdictionlover that place to entertain ah action under Section 488. In re: Sama Jetha, (AIR 1930 Bom 348) (D), it was pointed out that the words 'last resided' as teed in sub-section 8 of Section 488 are not restricted to permanent residence, but would take in temporary residence also. The revision petitioner admittedly owns two houses of his own viz, Clifton House at Ootacamund and Palathingal House at Kottayam and he retains control over both these houses, obviously with the intention that he must have the freedom to reside at either of these houses whenever he chooses to do so. His residence along with his wife at either of these places even for a short period, will be residence within the meaning of Sub-section 8 of Section 488. They had such joint residence at Palathingal House in December 1951 and in December 1953.

After their joint residence at Palathingal House in December 1951 they had no such joint residence at Clifton House at Ootacamund or in any other place. Thus it is clear that it was at Palathingal House at Kottayam that the revision petitioner had his last residence with his wife. It follows, therefore, that the Sub-Divisional Magistrate at Kottayam has jurisdiction to entertain M. C. 15/1955 filed against the revision petitioner by his wife for an order for maintenance under Section 488 of the Code of Criminal Procedure. The order to that effect passed by the learned Magistrate is right and it calls for no interference in revision.

3. The result is that the revision petitionfails and it is dismissed.


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