RAMAVTAR SINGH Vs. BUDDHA RAM

JUDGEMENT

(1.) IN (1) Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521) the appellant, Jagir Kaur, was the first wife of Jaswant Singh. Later on, Jaswant Singh married another lady before going to Africa Jagir Kaur was living at her parental house. In the year 1960, Jaswant came back to India and purchased property in Ludhiana District. When Jagir Kaur had filed an application under Section 488 of the Old Code of Criminal Procedure in the Court of Magistrate, First Class, Ludhiana, Jaswant Singh was staying within the jurisdiction of that Court. The question raised before their Lordsihps of the Supreme Court was whether the Magistrate at Ludhiana had jurisdiction to entertain the petition under Section 488 of the Code of Criminal Procedure (Old). Section 488(8) of the old Code of Criminal Procedure provided that proceedings under Section may be taken against any person in any district where he rasides. The crucial words which came for interpretation were 'resides', 'is' and 'where he last resided with his wife' It was observed that under the Code of 1982 the Magistrate of the district where the husband or father as the case may be, resided only had jurisdiction. The Code of Criminal Procedure of 1898, by sub -Section (8) of Section 488 had widened the jurisdiction, which gave three alternative forums to enable a discarded wife to get relief. It was further held that the proceeding under Section 488 of the Old Code were in the nature of civil proceedings to help the destitutes. On facts, it was held that when respondent Jaswant Singh came to India from Africa and lived in his mother's house in village Hans Kalan, he had a clear intention to temporarily reside with his wife at that place. The second visit from Africa appears to be only a flying visit. In these circumstances, it was held that Jaswant Singh last resided with his wife in a place within the jurisdiction of the 1st Class Magistrate Ludhiana and therefore, that Court had jurisdiction to entertain the petition. In the instant case, the petitioners undobtedly are at Delhi and reside there, Clearly, therefore, it was the Magistrate at Delhi who alone had the jurisdiction to entertain the petition filed by Buddha Ram non -petitioner. Addl. Munsif -cum -Judicial Magistrate No. 1 Alwar has placed reliance on a decision of Karnataka High Court in (2) Anant Gopal Pai v. Gopal Narain Pai (19S5 Cr.L.J. 152). With regard to this decision, it may be stated that the learned Judge did not take notice of the decision of the Supreme Court in Jagir Kaur's (supra). It was wrong for him to assume that Section 126 had in its view only the husband and the wife or the mistress of the husband and not the father. It is again wrong to state that in so far as father or the mother or the children are concerned. Section 126 is silent. I am of the view that Section 126 had also in its per view father or mother claiming maintenance from their son and, it is vocal in relation to them and not silent. It is also erroneous to state that in an application under Section 125 of the Code, the principles underlaying Section 177, which relates to an offence, have to be kept in view. The Supreme Court has clearly stated that the proceedings Under Section 125 of the Code are of civil nature Thus, the decision in Anant Gopal Pai's case (supra) runs counter to the decision of the Lordships of the Supreme Court just referred to above.

(2.) THE decision in (3) Sodhansu Sekbar Gangoli v. State and Ors. [1985(2) Crimes 214] dealt with a case of father or mother unable to maintain himself or herself. It was rightly held that the proceedings for maintenance under Section 125 of the Code can be initiated only at the place where his or her son resides in view of clause (a) of Section 126(1) of the Code of Criminal Procedure, 1973. Since the question of jurisdiction goes to the root of the matter, this Court should interfere under Section 482 Cr.P.C. to prevent the abuse of the process of the Court.