DARSHAN KUMARI Vs. SURINDER KUMAR

JUDGEMENT

(1.) Leave granted.

(2.) The appellant herein is admittedly a divorcee from the respondent. However, before divorce, she filed an application for maintenance under section 125 read with Section 126 of the Criminal Procedure Code (the 'code') in the court of the learned Magistrate, Nuh. In that application, she has stated that she resides at Nuh with her brother. She has also given her address of Nuh. However, the respondent-ex-husband challenged the jurisdiction of the court of the learned Magistrate on the ground that she was not residing at Nuh and that she was residing all along in New Delhi and, therefore, the court had no jurisdiction. The learned Magistrate accepting the said plea dismissed the application. Against the said decision, the appellant approached the learned sessions Judge in revision who allowed the application and restored the maintenance application. However, against the said decision, the respondent preferred proceedings before the High court and the High court by the impugned decision held that the appellant was residing in Delhi and she never resided at Nuh. It is this decision which is under challenge before us.

(3.) We have heard the counsel and gone through the entire record. We find that there is clear averment made by the appellant that she has been residing with her brother at Nuh. However, the High court as well as the learned magistrate have come to the conclusion that she was not residing at Nuh because according to them that was not her permanent residence. There is also a misreading by the High court of the petition filed by her for divorce. The High court has stated that in the said petition she has given her address of Delhi. We have gone through the record and a copy of the petition filed by her and find that the address given by her is of Nuh. Even ignoring the said misreading, we find that Section 126 of the Code requires that the proceedings under Section 125 may be taken against any person in any district where he or his wife resides. The section does not require permanent residence at the said place. Even a temporary residence, so long as it is not casual, is sufficient to confer jurisdiction on the Magistrate at that place or of the district concerned. In this view of the matter, we are of the view that the High court's finding was incorrect. The appellant was entitled to prosecute the application in the court of the learned Magistrate at Nuh where as per her averment in the application, she was residing and still resides. We, therefore, set aside the impugned decision of the High court. We are informed that pursuant to the interim order of this court dated 14/2/1994, the proceedings before the Magistrate have already commenced. The learned Magistrate will proceed with the case and decide the same according to law. The appeal is allowed accordingly.