SHER SINGH Vs. MTAMIR KUER

JUDGEMENT

(1.) This case arises out of a reference by the Sessions Judge of Agra under Section 435, Criminal P.C., asking this Court to interfere in exercise of its power under Section 439, Criminal P.C., with an order of a Magistrate of the First Class of Agra, dated the 6 of September 1926, requiring one Sher Singh (applicant before the Judge) to pay Rs. 75 per mensem as maintenance to Mt. Amir Kunwari (opposite-party before the Judge).

(2.) The facts are as follows: The parties are husband and wife. Up to March 1925 they lived at Bhatgaon, Rohtak, Punjab. In that month they came to Jarauli in the Agra district on a visit to the father of Sher Singh's daughter-in-law. They stayed here for a period of two months, during which period Sher Singh occasionally visited his home in Bhatgaon. At the end of these two months Sher Singh deserted his wife and returned to the Punjab.

(3.) The Magistrate, on an application by the wife under Section 488, Criminal P.C., has ordered Sher Singh to pay her maintenance. The Sessions Judge is of the opinion that a Magistrate of Agra had no jurisdiction because Sher Singh at the time of the filing of the application under Section 488 neither resided in Agra nor was in Agra, and because he could not be said to have last resided with his wife in Agra. The Sessions Judge relies upon a decision of the Chief Judge of the Oudh Chief Court in Ramdei V/s. Jhuni Lal A.I.R. 1926 Oudh 268. This decision held that a stay in a place for a week by a person having a fixed place of residence elsewhere does not constitute residence in that place. The decision was based on a Full Bench decision of the Allahabad High Court in Flowers V/s. Flowers [1910] 32 All. 203 where the expression "residence" as used in Section 3 of the Indian Divorce Act 1869 was held nod to apply to a flying visit to a place for a temporary purpose made without any intention of remaining.