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Chandirayan Raman Vs. Velluvakandy Vasumathi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1973CriLJ315
AppellantChandirayan Raman
RespondentVelluvakandy Vasumathi
Cases ReferredIn Radhakrishna Menon v. Kamalakshi
Excerpt:
- - 4. the petitioner raised the question of jurisdiction before me as well as before the courts below. 1st class magistrate as well as the sessions judge repelled the argument that the trial court had no jurisdiction to try the case......actually lives as distinguished from merely constructive or legal residence or place where a person resides in the legal and technical sense. it means residence existing in reality and in fact and not merely in form, that is, actual residence and not a temporary abiding place. a person is said to reside in a particular place if he actually lives in the place and has a freely exercised intention of remaining there permanently or for a length of time. the expression 'resides' does not import any permanency of residence. it is no uncommon thing for a gentleman to have two permanent residences at the same time in either of which he may establish his abode at any period and for any length of time.on the facts of that case. his lordship held that the expression resides does not import.....
Judgment:
ORDER

V. Khalid, J.

1. The revision arises from an order passed by the additional first class Magistrate, Tellicherry in M.C. No. 14 of 1970. The petitioner before me is the husband and the respondent the Wife. The wife filed M.C. No. 14 of 1970 under Section 488 Cr.P.C. claiming maintenance from her husband. The learned Magistrate directed the husband to pay a sum of Rs. 90/- per mensem as maintenance to the wife. The husband took the matter before the Additional Sessions Judge, Tellicherry. The learned Sessions Judge refused to make a reference to this Court and dismissed the revision.

2. The petitioner and the respondent were married on 12th July, 1967 according to the customary rites at the Suryanarayana Temple, Kadirur. After the marriage, they stayed together for some time at Kadirur. Thereafter, the petitioner took the respondent to Bangalore where he is running a bakery. On 18th May, 1968 the petitioner brought back the respondent to Kadirur and left her at her house and the petitioner returned to Bangalore. In spite of several letters sent to the petitioner claiming maintenance, no maintenance was given to her. As the petitioner neglected to maintain the respondent, she filed M.C. 14 of 1970 claiming maintenance at the rate of Rs. 200/- per mensem.

3. The husband, the petitioner before me, while admitting the marriage denied that, he had ever taken the wife back from Bangalore to her house at Kadirur. According to him, she went from Bangalore along with her brother Vijayan without his consent. He also stated that he tried to settle the dispute between them through mediators but she was not amenable. According to him, the wife refused to live with his mother and when he asked her to join him as a dutiful wife at Bangalore, she refused. Therefore, he is not bound in law to maintain the respondent. He also contended that the amount claimed is excessive.

4. The petitioner raised the question of jurisdiction before me as well as before the courts below. According to him he resides in Bangalore and he last resided with his wife at Bangalore. Therefore, as is provided in Section 488(8) Cr.P.C. the Tellicherry court had no jurisdiction to hear the case. The learned Addl. 1st Class Magistrate as well as the Sessions Judge repelled the argument that the trial Court had no jurisdiction to try the case. Section 488(8), reads as follows:

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.

According to the section, jurisdiction for a petition under Section 488 can be in a court within whose jurisdiction the husband resides or the husband and wife last resided. According to the petitioner, it is the admitted case that the husband, and wife last resided at Bangalore. The learned Counsel for the respondent before me fairly conceded that it is so. His contention is that the word 'resides' occurring in the section has to be given a liberal construction and if so done, it would be found that the husband has his residence in Kadirur. According to him, the word 'resides' does not connote only the place where the husband actually resided but also his residence, It is contends ed that the petitioner has his house at Kadirur and he used to visit his house at Kadirur. It is in evidence that he is conducting a trade in Bangalore and is staying in a rented building. Therefore his only purpose in staying at Bangalore is for the purpose of his business. He has therefore the animus manendi to come and stay in his native place. It has come out in evidence that he visits Kadirur to see his mother and look after his properties and when he visits Kadirur he stays for a few days at a stretch. From these circumstances, it has to be' found that the petitioner has his residence at Kadirur. It is not necessary that the residence should be a permanent one. It is enough that if it is a temporary residence.

5. The word 'resides' in Sub-section (8) of Section 488 has been interpreted by the Supreme Court in Jagir Kaur v. Jaswant Singh : [1964]2SCR73 to mean not only domicile in the technical sense of the word, but also something more than a flying visit to or a casual stay in a particular place, the length of the period being dependent upon circumstances of each case. Whether a person has chosen to make a particular place his abode depends upon facts of each case.

6. In support of his contention that the word 'resides' has to be taken In a wider sense, the learned Counsel for, the respondent brought to my notice a, few decision under Section 20 C.P.C. His, contention was that the connotation of t the word 'resides' in Section 488(8) is wider than its connotation in Section 20. C.P.C.

7. In support of this contention, the decision reported in Sarasammal v. Sree Rangan Asari 1961 Ker. L.T. 319 was brought to my notice. This is a case under Section 488(8) wherein it is observed as follows:

The object of the section, no doubt, was to confer jurisdiction upon the court within the district in which the permanent residence or home of the husband happens to be situated. But the words 'or is' used in the sub-section are not without significance. By the use of the words 'or is' the intention of the legislature appears to be that proceedings may be taken against the husband who had no permanent residence within the is jurisdiction of the Magistrate concerned, but who might be easily found there. The object is to make it as easy as possible for an aggrieved person to obtain an order of maintenance under the provisions of the section. Sub-section (8) should be construed liberally so that a helpless woman is not deprived of assistance from a court easily accessible to her.

I am in respectful agreement with the principles laid down in this case. The court should be very liberal in considering the question of jurisdiction favourably to the women. In this case, the respondent has his business at Bangalore. He has his mother and other relatives at Kadirur. It is of common knowledge that in North Malabar members of all communities have their joint family house in their places of birth and that place is considered as their residence for all purposes. Persons go out for employment out side where they stay only for the purpose of their employment or business. Such places can never be considered as their permanent residence. On the circumstances of this case, I hold that Kadirur should be considered as a place of residence of the husband and the petition is, therefore, in the proper Court.

8. In Mohan Singh v. Lajya Ram , a single Judge of the Punjab High Court while considering Section 20 of the Code of Civil Procedure and in discussing the ambit of the expression 'Actually resides' occurring in that section stated as follows:

Residence may be legal and technical or actual or physical. If a person lives, with his wife and children in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding-houses or houses of others, his actual or physical habitation is the place 'where he actually or personally resides. If the family of a person lives at one place and he himself lives for a greater portion of the time at another place, he has legal residence at the place where his family resides and actual residence where he himself resides. The expression 'actually resides' means actual residence or place where a person actually lives as distinguished from merely constructive or legal residence or place where a person resides in the legal and technical sense. It means residence existing in reality and in fact and not merely in form, that is, actual residence and not a temporary abiding place. A person is said to reside in a particular place if he actually lives in the place and has a freely exercised intention of remaining there permanently or for a length of time. The expression 'resides' does not import any permanency of residence. It is no uncommon thing for a gentleman to have two permanent residences at the same time in either of which he may establish his abode at any period and for any length of time.

On the facts of that case. His Lordship held that the expression resides does not import any permanency of residence, and therefore, a person can have two or more permanent dwelling places.

9. In Sitanath v. Jatindra Nath A.I.R. 1930 Cal 347 also it is stated that the mere fact that the defendant resides with his family and carries on business in a place which is not his permanent place of residence and that he seldom goes to the latter place is no bar to the suit being filed in the latter place. In other words in constructing Section 20 C.P.C. the Courts have been uniformly of the opinion that the residence of a person though not permanent if on evidence it can be established that he had something to do with that place of residence it cannot be ruled out that that place cannot be taken into account for the purpose of jurisdiction. If this is the construction to be put on the word 'resides' occurring in Section 20 C.P.C. where ordinary civil rights are being adjudicated, more so, is it necessary that a liberal construction should be put when it is applied to helpless women whose application for maintenance is the subject matter of adjudication before a Court.

10. In Velji Bharmal v. Samji Poonja A.I.R. 1952 Kutch 27. which is a decision rendered under Section 20 C.P.C. the defendant was living and working for gain in Bombay for 30 days and had his residential house in Kutch and his wife was staying in Kutch. The defendant was occasionally visiting Kutch. It was held that the Court in Kutch had jurisdiction to entertain the suit against the defendant.

11. In Dhanji v. Jivraj Mandan A.I.R. 1952 Kutch 58, where the defendants from Kutch went to Bombay and had business there, but had their place of residence in Kutch. Members of the family of the defendants also resided in Kutch. It was held that both Bombay and Kutch were places of residence of the defendants and, therefore, the Kutch Court had jurisdiction to entertain the suit.

12. In Section 20 of the Code of Civil Procedure, the expression used is where the defendant or each of the defendants 'actually and voluntarily resides'. This expression has been very widely interpreted by the various High Courts including some of the decisions I have already adverted to above. The actual words used in Section 488(8) are 'where he resides or is, or where he last resided with his wife....' It is contended by the learned Counsel for the respondent that the word 'resides' has a wider connotation. I agree with this contention. In Section 488(8) we do not have the qualifying words namely, 'actually or voluntarily'. The words 'actually and voluntarily' indicate something more than the mere word 'resides'.

13. In Radhakrishna Menon v. Kamalakshi 1965 Ker L.T. 957, a Division Bench of this Court has discussed the meaning of the expression 'last resides' and the word 'resides', Their Lordships observed relying upon the Supreme Court decision reported in : [1964]2SCR73 that the expression last resides' takes colour from, the word 'resides' and same meaning should be given to both the expressions. The word 'resides' was interpreted thus:

A person resides in a place If he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.

14. The Intention of the parties can be determined from various circumstances. As indicated above, it is usual for persons in the Malabar area to go either for business or employment outside while retaining their residence and joint family home in the place of their birth. It can never be said that such a place is not a place of residence of the persons concerned.

15. Next it was contended before me that the learned Magistrate went wrong in resorting to Section 531 Crl.P.C. to hold that absence of jurisdiction was only an irregularity which can be cured. The learned Counsel for the respondent has very fairly conceded before me that the Magistrate was wrong in invoking Section 531 as that section can be used only by an appellate court or a revisional court and not by the trial court.

16. The only point that remains to be considered is about the rate of maintenance to be awarded. The learned Magistrate has on a consideration of the facts in this case and the evidence tendered before him came to the conclusion that the husband has means to pay the maintenance awarded. Of course the petitioner has brought to my notice an error in the finding of fact committed by the Sessions Judge that Rs. 10,000/- turnover of the petitioner is taken as Rs. 10,000/- as income. This is incorrect. However, in view of the fact that the petitioner has his mother to support, and in view of the fact that there is dispute regarding the income from the petitioner's business I hold that Rs. 75/- a month will be sufficient maintenance for the wife.

17. Before parting with the case I may point out that Section 488(8) is another illustration of how the law has not taken into account the trials and tribulations of the Indian women. It is invariably the wife that is the neglected spouse. Often times the wife is taken by the husband with him to the place of his employment or business and for some silly reason the wife is neglected by the husband and sent back to her home. To drive such neglected women to move the Court under Section 488(8) of the place where the husband has taken up residence would be to deny the benefits of law to these helpless women. I am of the opinion that to allay the grievances and hardships of the neglected women folk of this country an amendment to Section 488(8) is necessary, giving jurisdiction to Courts in Section 488 matters where the woman resides and not where the husband resides.

In the result, the criminal revision petition is dismissed with the modification that the amount of maintenance will be Rs. 75/- instead of Rs 90/- awarded by the Additional First Class Magistrate, Tellicherry.


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