1. The petitioner was an Assistant Engineer in the Mysore State for 9 years. He then took service with the Ceylon Government; but after sometime gave up that post because his wife (the petitioner in the lower Court) refused to live with him there. He then returned to his old post in Mysore and rented a house in the Bangalore Civil and Military Station. Although he and his wife had not been getting on well for many years, she consented to come and live with him in Bangalore after Panchayatdars had mediated between them. She had been there for about two months, when the petitioner who had left her jewels in Ceylon because he apprehended that he would have to pay customs duty if he brought them back to India with him, persuaded his wife to accompany him back to Ceylon and wear the jewels; for by her so doing, they could avoid paying duty on them. On their return from this short visit to Ceylon, they halted at Trichinopoly, where both the brother of the petitioner and her father live, and went to stay in the house of the petitioner's brother. During the few days they remained there, the petitioner ill-treated his wife--the Magistrate finds--and drove her out of the house. She then went to her father's house. On the following day, the husband, with the help of some friends and servants, attempted to abduct her from her father's house; but failing in their attempt, assaulted her. The petitioner then returned to his duties in the Mysore State. As a result of what happened in Trichinopoly, the wife brought an application for maintenance in the Court of the Sub-Divisional Magistrate at Trichinopoly. The Magistrate was satisfied that the wife had proved cruelty against her husband and that she was therefore entitled to separate maintenance. He awarded her Rs. 50 a month.
2. We cannot go behind the finding of fact of the Sub-Divisional Magistrate, which is reasonable on the evidence; and so Mr. Viswanatha Aiyar has confined his arguments to the question of the jurisdiction of the Sub-Divisional Magistrate of Trichinopoly to award maintenance under Section 488, Criminal Procedure Code. Section 488, Clause (8), says that 'proceedings under that section may be taken against any person in any District where he resides or is, or where he last resided with his wife ...' The question is whether during those four days in which the petitioner was staying at Trichinopoly, he was residing there with his wife I have been taken through the evidence of the husband and of the wife and there can be no doubt that the petitioner intended returning to his house in Bangalore with his wife and resuming his duties as Assistant Engineer in the Mysore State. The expression 'reside' implies, something more than 'stay'. It is defined in the Oxford Dictionary as 'to dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place.' The word therefore implies some intention to remain at a place and not merely to pay it a casual visit, intending shortly to move on to one's permanent residence. This is the purport of the decision of a Bench of the Lahore High Court in Charan Das v. Surasti Bai I.L.R. (1940) Lah. 755 : A.I.R. 1940 Lab. 449. The lower Court considered that the petitioner had no permanent place of residence; for wherever the petitioner went in the Mysore State he lived in a rented house and it was in a rented house that he lived in, Bangalore. The learned Magistrate concluded that as the petitioner had no permanent place of residence, he must be deemed to have resided wherever he stayed. He stayed last at Trichinopoly; and so last resided in that town. The Magistrate's reasoning cannot however be accepted. A person who follows a profession must necessarily have some place of residence in which he can keep his wife and family and store his furniture and goods and to which he can return when he is not on tour. He can as well be said to reside in a rented house as in a house of which he is the owner. There can be little doubt that the petitioner had made Bangalore his home before he visited Trichinopoly and intended to continue to reside there. His visit to Trichinopoly was clearly a casual one, in order that the parties might see their relatives on their way from Ceylon to Bangalore. The residence of the petitioner at the time when he ill-treated his wife was therefore Bangalore and not Trichinopoly; and that was where the petitioner last resided with his wife at the time when the application for maintenance was filed.
3. I have been referred to a decision of Burn, J., in Krishnaswamy Iyer v. Subbulakshmi Animal 1935 M.W.N. 475 in a case something like the present one. The husband in that case had his work in a place other than that in which the enquiry took place; but there were important circumstances then existing which are not to be found in this one which led Burn, J., to hold that the husband was residing in the town he visited. The husband's native place was Trichinopoly; he had two houses and lands there, and he used to visit that town whenever he had sufficient leave. He had left his wife in Trichinopoly at her father's house and he went there and stayed with her for some days. The present petitioner's ancestral house is in Mysore and he has no house or other property in Trichinopoly.
4. The Magistrate therefore had no jurisdiction to try this case; but the learned Magistrate seems to have thought that even if that were so, the lack of jurisdiction would not nullify his order. He quoted Section 531, Criminal Procedure Code, which says that 'No order of any Criminal Court shall be set aside merely on the ground that the... proceeding in the course of which it was arrived at...took place in a wrong sessions division, district,division or other local area, unless it appears that such error has in fact occasioned a failure of justice.' I agree that in this case there was no failure of justice; but Section 531 is naturally intended to apply only to inquiries in British India; for the Criminal Procedure Code applies only to British India. It certainly does not condone the wrongful exercise of jurisdiction by a British Indian Court when no British Indian Court would have' jurisdiction in the matter. If it were otherwise, a person, by instituting a proceeding in a British Indian Court might obtain a remedy that was not open to him in the Court having jurisdiction. If authority for this position be necessary, it is found in In the matter of Bichitranand Das v. Bhugbut Perai (1889) 16 Cal. 667. Bangalore is within the Mysore State and so the Bangalore Courts--even those in the Civil and Military Station--are foreign Courts. Section 531, Criminal Procedure Code will therefore not cure any defect in jurisdiction in the Sub-Divisional Magistrate who passed this order.
5. The order of the Magistrate is therefore set aside as one without jurisdiction.