MOHD MUSHTAQ KHAN Vs. ZAREENA BANO ALIES RUBAB

JUDGEMENT

(1.) IT is on a solitary ground challenge is made to the order passed by the trial court under section 488 of the code of criminal procedure. Maintenance has been granted to the wife. It is urged that in view the provision contained in sub section (8) of the section 488 of the Code of Criminal Procedure, the Courts at Jammu would have no jurisdiction. This is because the petitioner is said to be residing at Delhi. This plea of the petitioner did not find favour with the trial court. Trial court in its order dated 2 -11 -2001 has taken note of sub section (8) of section 488of the code of criminal procedure and has concluded that the Court at Jammu have the jurisdiction. It has been held that what is stated in the aforementioned sub section is not mandatory. Use of word may be was also taken note of by the trail court it was accordingly held that the wite is well within her rights to the a petition in the courts at Jammu.

(2.) AS section 488 (8) of the Code of Criminal Procedure need to be interpreted this is reproduced below. " (8) Proceedings under this section may be taken against any person in any district where he resides or is or where is last resided with his wife or as the case may be the mother of the illegitimate child."

(3.) A plain reading of section would show that this section does not in mandatory terms lay down that the parties must file the petition where they last resided together. Independently of the above, plea of the parties and more so from the objections taken by the petitioner it can be spelt out that for some time respondent wife did visit the petitioner in Delhi, it is the case of the respondent wife that even though she was in Delhi. The petitioner did not provide her comforts which matrimonial obligations do require. She was provided with some accommodation. When the husband does not discharge matrimonial obligations then mere factum of providing residential accommodation would not bring the case within the teem last resided together. A fleeting visit by the wife to a place where husband is residing would not mean that wife had opted to reside at Delhi. Therefore this plea of the husband cannot be taken into consideration for concluding that parties last resided in Delhi. Therefore, (he Court at Jammu would have jurisdiction. This view is in line with the earlier view expressed by this court in case reported as 1996 SLJ . 97 ( Dr. Rasool Malik versus Mst. Amina and ors) in the above case it was concluded: (1) that the provisions under section 488 (8) of the Code of Criminal Procedure are not mandatory. (2) that the filling of petition at the place where the parties last resided is discretionary and not mandatory. In view of the above no exception can be taken to the view expressed by the Court below. This petition, as such is found to be without merit and is dismissed.