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CASE NO.: Appeal (crl.)  431 of 2004

PETITIONER: Vijay Kumar Prasad

RESPONDENT: State of Bihar & Ors.

DATE OF JUDGMENT: 07/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T   

(Arising out of SLP (Crl.) No.3151/2003)

ARIJIT PASAYAT,J

       Leave granted.

       The present case reflects a sad state of affairs,  as it involves a fight between the father and his sons.  While the appellant is son of respondent No. 2 [who is  the petitioner claming maintenance in terms of Section  125 of the Code of Criminal Procedure, 1973 (in short  ’the Code’), the other respondents are appellant’s step  brothers.   

The factual background projected by the parties  need not be noted in detail as the pristine question  involved is one of law relating to jurisdiction in terms  of Section 126 of the Code where an application can be  filed. The application was filed by the respondent No. 2  - father in the Court of Chief Judicial Magistrate,  Siwan. The appellant filed an application for transfer  of the case from Siwan to Patna alleging that an  influential politician was behind the litigation, and he  would not get justice if the case is tried at Siwan as  he could not even arrange a lawyer to represent him.   According to him, the Court at Siwan has no jurisdiction  to entertain the application because the appellant lives  in Patna and is practising as a lawyer.  The Patna High  Court rejected the application for transfer primarily on  the ground that the alleged apprehensions of the  petitioner were not established.  The question relating  to jurisdiction was not specifically adverted to.

       In support of the appeal, learned counsel for the  appellant submitted that the question relating to  jurisdiction was specifically urged before the High  Court.  It was clearly stated that the appellant resides  at Patna and the Court at Siwan could not have  entertained the application. In addition to the other  aspects like inability to get lawyer, the question of  jurisdiction was specifically urged. With reference to  the language of Section 126 it is submitted that the  respondent no. 2 had filed the petition before the Siwan  Court claiming that he resides within the jurisdiction  of the said court. It is not his residence which would  determine the jurisdiction, but the place where the  person from whom he claims maintenance i.e. present

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appellant resides.   

In response, learned counsel for the respondents  submitted that the allegations of political influence  having been discarded by the High Court in a transfer  petition, it was not open to the present appellant to  raise the question of jurisdiction.

       Though the impugned order relates to a transfer  petition, the question of jurisdiction appears to have  been specifically raised before the High Court.  In  normal course we would have remitted the matter to the  High Court for a decision on that aspect; but  considering the relationship of the parties and as  rightly submitted by learned counsel for the respondents  the importance of the question, we think it appropriate  to examine the question of jurisdiction.   

Section 126 of the Code is in essence a repetition  of Section 488 (6) to (8) of the Code of Criminal  Procedure, 1898 (in short the ’old Code’). Section 488  of the old Code corresponding to Section 126 so far as  relevant read as follows:-

"Proceedings under this section  may be taken against any person in any  district where  he resides or is, or  where he last resided with his wife, or,  as the case may be, the mother of the  illegitimate child."   

Section 125 deals with various categories of  persons who can claim maintenance.  Sections 125 and 126  of the Code appear in Chapter IX which carries the  heading "Order for maintenance of wives, children and  parents".

Section 125(1)(d) relates to the father or the  mother, unable to maintain himself or herself.

Section 126(1) which is relevant for the purpose of  this case reads as follows:

"Proceedings under section 125 may  be taken against any person in any  district -

(a)     where he is, or (b)     where he or his wife resides, or (c)     where he last resided with  his wife, or as the case may  be, with the mother of the  illegitimate child."

The position of law relating to proper jurisdiction  was highlighted by this Court in Mst. Jagir Kaur and  Another v. Jaswant Singh (AIR 1963 SC 1521) as follows:

"The words of the sub-section are,  "resides","is" and "where he last

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resided with his wife".  Under the Code  of 1882 the Magistrate of the District  where the husband or father, as the case  may be, resided only had jurisdiction.   Now the jurisdiction is wider.  It gives  three alternative forums.  This in our  view, has been designedly done by the  Legislature to enable a discarded wife  or a helpless child to get the much  needed and urgent relief in one or other  of the three forums convenient to them.   The proceedings under this section are  in the nature of civil proceedings, the  remedy is a summary one and the person  seeking that remedy, as we have pointed  out, is ordinarily a helpless person.   So the words should be liberally  construed without doing any violence to  the language."

As noted in the above said judgment the crucial  expression for the purpose of jurisdiction in respect of  a petition which is filed by a father is not where  "parties reside" and "is".

It is to be noted that Clauses (b) & (c) of sub  section (1) of Section 126 relate to the wife and the  children under Section 125 of the Code.  The benefit  given to the wife and the children to initiate  proceeding at the place where they reside is not given  to the parents.  A bare reading of the Section makes it  clear that the parents cannot be placed on the same  pedestal as that of the wife or the children for the  purpose of Section 126 of the Code.

The basic distinction between Section 488 of the  old Code and Section 126 of the Code is that Section 126  has essentially enlarged the venue of proceedings for  maintenance so as to move the place where the wife may  be residing at the date of application.  The change was  thought necessary because of certain observations by the  Law Commission, taking note of the fact that often  deserted wives are compelled to live with their  relatives far away from the place where the husband and  wife last resided together. As noted by this Court in  several cases, proceedings under Section 125 of the Code  are of civil nature.  Unlike clauses (b) and (c) of  Section 126(1) an application by the father or the  mother claiming maintenance has to be filed where the  person from whom maintenance is claimed lives.   

As has been noted in Jagir Kaur’s case (supra) the  expression "is" cannot be given the same meaning as the  word "reside" or the expression "the last resided".   It connotes in the context the presence or the existence  of the persons in the district where the proceedings are  taken. It is wider in its concept than the word  "resides" and what matters is his physical presence at  the particular point of time. No finding has been  recorded by the High Court on this particular aspect  which needs a factual adjudication.  The stand of the  appellant is that he practises in Patna and was not  present  in  Siman  physically  when  the    application was    filed    for   maintenance.   Respondent  No.  2-

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father has indicated about the son practising in the  Patna High Court. Obviously if his son was practising at  the time of presentation of petition in the Patna High  Court, he could not have been physically present at  Siwan, whatever extended meaning may be given to the  expression "is". In view of this the position is clear  that the Court at Siman has no jurisdiction to deal with  the petition. One thing may be noted, which can clear  lot of cobwebs of doubt.  The expression "is" cannot be  construed to be a fleeting presence, though it may not  necessarily for considerable length of time as the  expression "resides" may require. Although the  expression normally refers to the present, often it has  a future meaning. It may also have a past signification  as in the sense of "has been". (See F.S. Gandhi (Dead)  by LRs. V. Commissioner of Wealth Tax, Allahabad (AIR  1991 SC 1866). The true intention has to be contextually  culled out.       

In the circumstances we direct the transfer of the  case to the Sessions Division of Patna, with the  direction that the learned Session Judge may pass  appropriate orders so that the matter can be placed  before the court of competent jurisdiction.  We make it  clear that we have not expressed any opinion on the  merits of the case and/or on the truth or otherwise of  the allegations relating to political influence or  pressure as alleged.

       We allow the appeal to the extent indicated.