PHULEL SINGH KOTWAL Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Baramalla recommending the setting aside of an oner of the Judicial Magistrate, Baramulla dated 24 -11 -1983. The brief facts may first be noticed.

(2.) ON 15 -10 -1981, an application under Sec. 488 Cr. P. C. was filed by the respondent seeking maintenance for herself and the minor child of the parties in the court of Judicial Magistrate, Baramulla, Pursuant to the notice issued by the learned Judicial Magistrate, the husband non -applicant appeared before the court and filed objections on 19 -1 -1982. The parties, thereafter, led evidence in support of their respective cases and after the evidence was concluded, the case was posted for final arguments to 28 -9 -1982 The case was not argued on the date and was adjourned from time to time at the request of learned counsel for the parties when on 11 -1 -1983, the husband non applicant filed an application stating therein that since he resides at Mazhama, tehsil Beerwah and had last resided with his wife at the same place, therefore, the learned Judicial Magistrate, Baramullah, had no territorial jurisdiction to entertain the application as the same lay with the Judicial Magistrate, Magam. The wife -applicant resisted the application and filed her objections in which, inter alia, she stated that except for a couple of months, she had not lived with her husband in the matrimonial home. She also stated that since the husband -non -applicant had not raised any objection to the jurisdiction at the earliest stage when he filed his objections on 19 -1 -1982 or thereafter till the evidence was concluded, he could not at this late stage be heard to raise a pela of lack of jurisdiction for, he had acquiesced in so far as the jurisdiction was concerned. The learned Judicial Magistrate, Baramulla, consequently rejected the application which led to the filing of a revision petition before the learned Sessions Judge who agreed with the contention of the husband -non -applicant and overruling the submissions of the wife -applicant, has made a reference to this court to set aside that order further holding that the provisions of section 531 Cr. P. C. could not come to the aid of the applicant -wife, because, the order of the trial court rejecting the plea of the husband -non -applicant was not a final order.

(3.) I have heard learned counsel for the parties and gone through the record.