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PETITIONER: JAGIR KAUR & ANOTHER

       Vs.

RESPONDENT: JASWANT SINGH

DATE OF JUDGMENT: 13/02/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1963 AIR 1521            1964 SCR  (2)  73  CITATOR INFO :  RF         1970 SC 446  (9)  RF         1985 SC 945  (8)

ACT: Maintenance  of Wives and children--Construction of  statute --Jurisdiction of the  Magistrate to entertain  petition--If a  mixed question of fact and law--If can be raised for  the first  time before this Court-- Code of Criminal  Procedure, 1898 (Act 5 of 1898), ss. 2(1), 488(8).

HEADNOTE: The  respondent  who was born in the Ludhiana  District  was married to the first appellant.  He took up a job in  Africa and  after staving there for some time he came to India  and stayed  with his wife for 5 months, He then went  to  Africa and  after staying there for 5 or 6 years came to India  and took  the  appellant with him to Africa and a  daughter  was born  to them there.  The appellant was sent back  with  the child  and she was staying in the District of Ludhiana  with the  child.  It is admitted that the respondent  had  bought property  worth Rs. 25,000/- in that District and  that  the petition for maintenance was filed by the appellant and  the notice  was served on him while the respondent was  in  that District.    The  respondent  filed  a  counter   affidavit, obtained  exemption from personal appearance it the time  of hearing of that petition and thereafter left for Africa. 74 The   1st  Class  Magistrate  Ludhiana  held  that  he   had jurisdiction   to  entertain  the  petition  filed  by   the appellant  under s. 488 of the Code of  Criminal  Procedure, 1898,  as the appellant and the respondent had last  resided in  the  District  Ludhiana.   He  awarded  for  the  wife’s maintenance  at the rate of Rs. 100/- per month and for  the daughter  at  the rate of Rs. 50/- per  month.   A  revision petition  filed  by  the respondent  before  the  Additional Sessions  judge  was rejected.  But the High  Court  holding that  the  1st  Class  Magistrate  had  no  jurisdiction  to entertain  the petition allowed the revision petition  filed by the respondent.  The present appeal is by way of  special leave granted by this Court. The main contention on behalf of the appellants before  this

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Court  was that the respondent having last resided with  his wife in the District of Ludhiana and he having been there at the  time when the petition tinder s. 488 was presented  the Magistrate  had jurisdiction to entertain the petition.   It was  further contended that the respondent having  submitted to the jurisdiction of the Magistrate could not question his jurisdiction. Held,  that  Ch.   XXVI of the Code  of  Criminal  Procedure providing  for maintenance of wife and children  intends  to serve a social purpose.  Section 488 prescribes  alternative forums  to  enable  a deserted wife  or  a  helpless  child, legitimate   or   illegitimate   to   get   urgent   relief. Proceedings  under  the  section can be  taken  against  the husband  or the father as the case may be, in a place  where he  resides  permanently or temporarily, or where  lie  last resided  in any District in India or where he happens to  be at  the time the proceedings are initiated.  The  expression "resides" implied something more than a brief visit but  not such continuity as to amount to domicile. Sampoornam  v. N. Sandaram, (1952) 2 M. L. J. 573,  referred to. A casual or flying visit to a place for a temporary  purpose was not covered by the word residence. Khairunnissa  v.. Baskir Ahmad, (1929) I.L.R. 53  Bom.  781, Flowers  v.  Flowers,  (1910)  1. L . R.  32  All.  203  and Balakrishna  v.  Sakuntala  Rai, A. 1.  R.  1942  Mad,  666, referred to. The  sole  test on the question of residence was  whether  a party had animus manendi or an intention to stay for an  in- definite period at the place.  75 Charan  Das v. Surasti Bai, A. 1. R. 1940 Lah. 449  referred to. The  appellant not having raised the plea of  submission  to jurisdiction either in the pleadings or in any of the courts below  will not in the absence of special  circumstances  be allowed to raise it before this Court. Where a legislature has no power to make laws in respect  of any  territory  the operation of the law made by  it  cannot extend to that territory. The  facts  and  circumstances of the  case  show  that  the respondent last resided with his wife in a place within  the jurisdiction  of the First Class Magistrate,  Ludhiana,  and that  he  was  in a place within  the  jurisdiction  of  the Magistrate  on  the  date  when  the  appellant  filed   her application for maintenance against him. In  re Druker (No. 2) Basden, Ex Parte, [1902] 2 K.  B.  210 referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 143  of 1961. Appeal  by special leave from the judgment and  order  dated May  22,  1961,  of the Punjab  High  Court,  Chandigarh  in Criminal Revision No. 1448 of 1960. S. K. Kapur, for the appellants. Harnam Singh Chadha and Harbans Singh, for the respondent. 1963.  February 13.  The judgment of the Court was delivered by SUBBA  RAO  J.-This  appeal  by  special  leave  raises  the question  of true construction of s. 488(8) of the  Code  of Criminal Procedure. Jagir Kaur, the first wife of jaswant Singh, was married  to

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him in 1.930. Tile said jaswant Singh 76 was  employed  in the police force in Africa.   The  Maklawa ceremony  took place about 7 years after the marriage,  when the  respondent was away In Africa.  Thereafter,  the  first appellant was taken to her mother-in-law’s house, and  after living  there for a few years she returned to  her  parental house. 5 or 6 years thereafter, jaswant Singh came to  India on  5 months’ leave and the couple lived in jaswant  Singh’s or his mother’s house at Hans Kalan it is not clear to  whom the  house belongs-for a period of 5 months  and  thereafter jaswant  Singh  left  for Africa. Before  going  to  Africa, jaswant Singh married    another wife and took her with  him to  Africa.  After 5 or 6 years, he came back  to  India  on leave  and took the first appellant also to  Africa.   There she  gave  birth  to a daughter the  second  appellant.   As disputes  arose  between them, he sent her  back  to  India, promising to send her money for her maintenance but did  not (lo  so.   In the year 1960, he came back to India.   It  is also in evidence that he had purchased property in  Ludhiana District for Rs. 25,000/-.  When he was admittedly in India, the  first  appellant filed a petition under s. 488  of  the Code  of Criminal Procedure in the Court of the First  Class Magistrate,   Ludhiana,   within  whose   jurisdiction   the respondent was staying at that time.  The petition was filed by  the  first appellant on behalf of herself  and  also  as lawful  guardian of the second appellant, who was  a  minor, claiming maintenance at Rs. 200/- per month for both of them on the ground that the respondent deserted them and did  not maintain  them.   The respondent filed  a  counter-affidavit denying the allegations and pleading that the said court had no  on the ground that he never resided within its  district nor did he last reside with the first appellant in any place within  its.jurisdiction. The learned Magistrate  held  that the petitioner-appellant was the wife of the respondent  and that the Court had jurisdiction to entertain the petition as the  77 husband  and wife last resided together in the  District  of Ludhiana.   On the merits, he held that the first  wife  and her  daughter were entitled to maintenance and  awarded  for the wife maintenance at the rate of Rs. 100/- per month  and for  the  daughter at the rate of Rs. 50/- per  month.   The respondent  preferred a revision against that order  to  the Additional  Sessions judge, Ludhiana, and the learned  Addi- tional  Sessions judge, agreed with the  learned  Magistrate both  on the question of jurisdiction and also on the  right to  maintenance  and dismissed the  revision.   The  husband preferred  a  revision to the High Court of  Punjab  against that  order.  The High Court disagreed with both  the  lower Courts  on the question of jurisdiction.  It held  that  the husband’s  permanent home was Africa and his two  visits  to Ludhiana  for  temporary periods did not make  him  one  who resided  in that district or who last resided with his  wife therein.   On  that  view, it set aside  the  order  of  the learned   Additional  Sessions  judge  and   dismissed   the petition.  Hence the present appeal. Mr.  Kapur,  learned counsel for the  appellants,  contended that  the respondent had last resided with his wife  in  his house in village Hans Kalan in the District of Ludhiana  and was  also in the said District at the time  the  application under s. 488 of the Code of Criminal Procedure was filed  by the  first appellant and, therefore, the learned  Magistrate had  territorial jurisdiction to entertain the  application. In  any  view, he argued, the respondent  submitted  to  the

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jurisdiction  of the Magistrate and, therefore, he could  no longer  question the validity of his order on the ground  of want  of  jurisdiction.   On the  other  hand,  the  learned counsel  for the respondent sought to sustain the  order  of the High Court for the reasons mentioned therein. At  the outset we must say that the first appellant did  not raise the plea of submission 78 either in the pleadings or in any of the three Courts below. The  question  is a mixed question of fact  and  law.   This Court will not ordinarily allow such questions to be  raised for the first time before it and we do not see in this  case any exceptional circumstances to depart from that  practice. We  cannot  therefore, permit the first appellant  to  raise this belated plea. The only question in the appeal is whether the Magistrate of Ludhiana  had jurisdiction to entertain the  petition  filed under  s.  488  of  the Code  of  Criminal  Procedure.   The question  turns  upon  the interpretation  of  the  relevant provisions  of s. 488(8) of the Court, which demarcates  the jurisdictional  limits  of a Court to entertain  a  petition under the said section.  Section 488 (8) of the Code reads : "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.". The  crucial words of the sub-section are,  "resides",  "is" and "where lie last 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. 79 The  first  word is "resides".  A wife can file  a  petition against  her  husband  for maintenance in  a  Court  in  the District  where he resides.  The said word has been  subject to conflicting judicial opinion. In the Oxford Dictionary it is  defined  as : "dwell permanently or for  a  considerable time;  to have one’s settled or usual abode ; to live in  or at  a particular lace".  The said meaning, therefore,  takes in  both a permanent dwelling as well as a temporary  living in  a  place.   It  is,  therefore,  capable  of   different meanings,  including domicile in the strictest and the  most technical  sense  and  a  temporary  residence.    Whichever meaning is given to it, one thing is obvious and it is  that it does not include a causal stay in, or a flying visit  to, a  particular  place.   In short, the meaning  of  the  word would, in the ultimate analysis, depend upon the context and the  purpose  of  a particular statute.  In  this  case  the context and purpose of the present statute certainly do  not compel  the  importation of the concept of domicile  in  its technical sense.  The purpose of the statute would be better served  if  the  word "resides" was  understood  to  include temporary  residence.  The juxtaposition of the  words  "is" and "’last resided" in the sub-Section also throws light  on the  meaning of the word "resides".  The word "’is",  as  we shall explain later, confers jurisdiction on a Court on  the

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basis  of a causal visit and the expression "last  resided", about  which also we have something to say,  indicates  that the  Legislature  could not have intended to  use  the  word "resides"  in  the technical sense of  domicile.   The  word "resides" cannot be given a meaning different from the  word "resided" in the expression "’last resided" and,  therefore, the  wider  meaning fits in the setting in  which  the  word "resides" appears.  A few of the decisions cited at the  Bar may be useful in this context. In  Santpoornam v. N. Sundaregan (1), it was held  that  the word "resides" implied something more than (1)  (1952) 2 M.L.J 573, 80 a  brief  visit. but not such continuity as to amount  to  a domicile.   In  Khairunissa  v.  Bashir  Ahmed  (1),  on   a consideration  of the relevant authorities it  wits  pointed out that a casual or a flying visit to a place was  excluded from  the scope of the word "resides".  A full Bench of  the Allahabad  High Court, in Flowers v. Flowers (2),  expressed the  view  that  a mere casual residence in a  place  for  a temporary  purpose with no intention of remaining  was  not. covered  by the word "resides". In Balakrishna v.  Sakuntala Bai  (3)  it was held that the expression  "reside"  implied something  more  than "stay" and implied some  intention  to remain  at a place and not merely to pay it a casual  visit. In Charan Das v. Surasti Bai (2), it was held that the  sole test  on the question of residence was whether a  party  had animus  manendi, or an intention to stay for  an  indefinite period, at one place; and if he had such an intention,  then alone could he be said to "reside" there. The  decisions  on the subject are legion and  it  would  be futile  to  survey the entire field.   Generally  stated  no decision  goes so far as to hold that "resides" in the  sub- section  means only domicile in the technical sense of  that word.   There  is  also  a broad  unanimity  that  it  means something more than a flying visit to or a casual stay in  a particular  place.   They agree that there shall  be  animus manendi or an intention to stay for a period, the length  of the  period depending upon the circumstances of  each  case. Having  regard  to  the object sought to  be  achieved,  the meaning  implicit  in the words used, and  the  construction placed  by decided cases thereon, we would define  the  word "resides"  thus : a person resides in a place if he  through choice makes it his abode permanently or even temporarily  ; whether  a person has chosen to make a particular place  his abode  depends upon the facts of each case.  Some  illustra- tions may make our meaning clear : (i) A, living in (1)  (1929) I.L.R. 53 Bom. 781.  (2) (1910) I.L.R.  32  All. 203. (3) A.I.R. 1942 Mad. 666.   (4) A.I.R. 1940 Lah. 449, 81 a  village, goes to a nearby town B to attend a marriage  or to  make purchases and stays there in a hotel for a  day  or two.  (2) A, a tourist, goes from place to place during  his peregrinations  and  stays  for a few days in  each  of  the places  he  visits,  A,  a resident of  a  village,  who  is suffering  from a chronic disease, goes along with his  wife to  a  town for medical treatment, takes a house  and  lives there  for about 6 months. (4) A, a permanent resident of  a town, goes to a city for higher education, takes a house and lives  there,  alone  or  with his  wife,  to  complete  his studies.   In  the first two cases, A makes  only  a  flying visit and he has no intention to live either permanently  or temporarily in the places he visits.  It cannot,  therefore, be  said that he "resides" in the places he visits.  In  the

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last  two  illustrations,  though A has  a  permanent  house elsewhere,  he  has a clear intention or animus  manendi  to make the places where he has gone for medical relief in  one and studies in the other, his temporary abode or  residence. In the last two cases it can be said that though he is not a domicile of those places, he "resides" in those places. The cognate expression "last resided" takes colour from  the word  "’resides" used earlier in the sub-section.  The  same meaning  should  -be given to the word "   resides"  and the word  "’resided",  that  is to say, if  the  word  "resides" includes temporary residence, the expression "last  resided" means  the  place where the person had  his  last  temporary residence.  But it is said that even on that assumption, the expression can only denote the last residence of the  person with  his wife in any part of the world and that it  is  not confined to his last residence in any part of India.  If the words "where he last resided with his wife" are construed in vacuum,  the construction suggested by the  learned  counsel for the respondent may be correct; but by giving such a wide meaning  to  the said expression we would  be  giving  extra territorial operation to the 82 Code  of  Criminal  Procedure.  Section 2  (1)  of  th  Code extends the operation of the Code to the whole of India except the States of Jammu & Kashmir; that is     to    say, the provisions of the Code, including s.     488         (8) thereof,  have  operation only throughout the  territory  of India,  except the States of Jammu & Kashmir.  If  so,  when sub-s. (8) of s. 488 of the Code, prescribing the limits  of Jurisdiction, speaks of the last residence of a person  with his wife, it can only mean his last residence with his  wife in  the territories of India.  It cannot obviously mean  his residing  with her in a foreign country, for an  Act  cannot confer   jurisdiction  on  a  foreign  court.    It   would, therefore,   be  a  legitimate  construction  of  the   said expression  if  we  held that the  district  where  be  last resided with his wife must be a district in India. In  In re Drucker (No. 2) Basden, Ex Parte the words "or  in any  other place out of England," in sub-s. (6) of s. 27  of the  Bankruptcy Act, 1883, fell to be construed.  The  words were wide enough to enable a Court in England to order  that any person who, if in England, would be liable to be brought before it under the section, shall be examined in any  place out   of   England,  including  a  place  not   within   the jurisdiction of the British Crown.  The Court held that  the words must be read with some limitation and the jurisdiction conferred  by that section does not extend to places  abroad which are not within the jurisdiction of the British  Crown. Wright,  J., rejecting the wider construction sought  to  be placed on the said words, observed at p. 211 : "It  seems  to  me  that that  restriction  in  prima  facie necessary.  It is impossible to suppose that the Legislature intended  to empower the Court to order the  examination  of persons in (1)  [1902] 2 K.B. 210. 83 foreign countries ; for instance, in France or Germany." In Halsbury’s Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated :  "........ the presumption is said to be that Parliament  is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance,  and with no other conduct.  In other  words,  the extent of a statute, and the limits of its application,  are prima facie the same."

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It  may be mentioned that the said observations are made  in the context of Parliament making a law in respect of a  part of the territory under its legislative jurisdiction.  If  it has no power at all to make a law in respect of any  foreign territory,  the  operation  of the law  made  by  it  cannot obviously  extend  to  a  country  over  which  it  has   no legislative control.  It is, therefore, clear that s. 488(8) of  the  Code, when it speaks of a district where  a  person last  resided  with his wife, can only mean "where  he  last resided  with his wife in any district in India  other  than Jammu & Kashmir." The  third  expression  is the word "is".   It  is  inserted between  the words "resides" and "last resided".  The  word, therefore,  cannot  be given the same meaning  as  the  word "resides"  or  the  expression "last  resided"  bears.   The meaning of the word is apparent if the relevant part of  the subsection  is  read.  It reads :  "Proceedings  under  this section  may  be taken against any person  in  any  district where  he............   is............."    The  verb  "is"’ connotes in the context the presence or the existence of the person  in the district when the proceedings are taken.   It is much wider than the word "resides":  it is not limited by the animus manendi 84 of  the  person or the duration or the nature of  his  stay. What matters is his physical presence at a particular  point of  time.   This  meaning accords with  the  object  of  the chapter  wherein  the  concerned  section  appears.   It  is intended  to  reach a person, Who deserts a  wife  or  child leaving her or it or both of them helpless in any particular district  and goes to a distant place or even to  a  foreign country, but returns to that district or a neighbouring  one on a casual or a flying visit.  The wife can take  advantage of his visit and file a petition in the district where he is during  his  stay.  So too, if the husband who  deserts  his wife, has no permanent residence, but is always on the move, the  wife  can catch him at a convenient place  and  file  a petition  under  s. 488 of the Code.  She  may  accidentally meet him in a place where he happens to come by  coincidence and  take  action  against him before lie  leaves  the  said place.  This is a salutary provision intended to provide for such  abnormal cases.  Many illustrations can be  visualized where   the  utility  of  that  provision  can   easily   be demonstrated. To  summarize  :  Chapter  XXXVI of  the  Code  of  Criminal Procedure  providing for maintenance of wives  and  children intends  to serve a social purpose.  Section 488  prescribes alternative  forums to enable a deserted wife or a  helpless child,  legitimate  or illegitimate, to get  urgent  relief. Proceedings  under  the  section can be  taken  against  the husband or the father, as the case may be, in a place  where he  resides,  permanently or temporarily, or where  he  last resided  in any district in India or where he happens to  be at the time the proceedings are initiated. Let  us now apply the said principles to the  instant  case. To recapitulate the relevant facts : the respondent was born in  India in Ludhiana District; he was married to the  first appellant  in the year 1930; he migrated to Africa and  took up a job there 85 as a police officer; he came back to India in or about  1943 and lived with the first appellant in a house at Hans  Kalan for about 5 months and thereafter he left again for  Africa; 5 or 6 years thereafter, he again came to India on leave and took  her to Africa where she gave birth to a daughter;  the

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appellant  was  sent back to India and she  was  staying  in Ludhiana District with the child; the respondent’s mother is staying in the aforesaid village in the same district and it is  also  not  disputed that the  respondent  has  purchased property worth Rs. 25,000/- in Ludhiana District in the name of his minor children by his second wife; when the  petition was   filed   he   was  admittedly  in   the   district   of Ludhiana---indeed,   notice  was  served  on  him  in   that district,  he filed a counter affidavit, obtained  exemption from  personal  appearance  at  the  time  of  hearing   and thereafter  left  for Africa.  It is not necessary  in  this case  to express our opinion on the question whether on  the said facts the respondent "resides" in India; but we have no doubt  that he "last resided" in India,.  We have held  that temporary  residence  with  animus manendi  will  amount  to residence  within the meaning of the provisions of the  sub- section.   When the respondent came to India and lived  with his  wife  in his or in his mother’s house in  village  Hans Kalan,  he had a clear intention to temporarily reside  with his  wife in that place.  He did not go to that place  as  a casual visitor in the course of his peregrinations.  He came there  with the definite purpose of living with his wife  in his native place and he lived there for about 6 months  with her.  The second visit appears to be only a flying visit  to take her to Africa.  In the circumstances we must hold  that he last resided with her in a place within the  jurisdiction of the First Class Magistrate, Ludhiana.  That apart, it  is admitted  that he was in a place within the jurisdiction  of the said Magistrate on the date when the appellant filed her application   for  maintenance  against  him.    Thee   said Magistrate had jurisdiction 86 to  entertain the petition, as the said proceedings  can  be taken against any person in any district where he "is".  We, therefore-, hold that the First Class Magistrate,  Ludhiana, had jurisdiction to entertain the petition under s. 488  (8) of the Code. The  next question relates to the quantum of maintenance  to be  awarded  to  the  appellants.   The  Magistrate,  on   a consideration  of the entire evidence, having regard to  the salary  of the respondent, and the value of the property  he purchased awarded maintenance to the wife at the rate of Rs. 100/- per month for herself and at the rate of Rs. 50/-  per month   for  the  maintenance  of  her  minor  child.    The Additional  Sessions  judge,  on a  reconsideration  of  the evidence, accepted the finding of the learned Magistrate and confirmed  the quantum of maintenance awarded by  him.   The finding  is  a concurrent finding of  fact  the  correctness whereof  cannot  ordinarily  be  questioned  in  a  revision petition  in the High Court. that is why the  only  question argued  before the High Court was that of jurisdiction.   As we  have held that the view accepted by the High  Court  was wrong, we set aside the order of the High Court and  restore that of the Magistrate First Class, Ludhiana. In the result the appeal is allowed. Appeal allowed. 87