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1999 DIGILAW 2695 (MAD)

Sarasammal v. Rangan Asari

1999-11-30

P.GOVINDA MENON

body1999
Order In this case the revision petitioner, wife, had filed an application for maintenance under section 488, Criminal Procedure Code, in the Court of the First Class Magistrate of Neyyattinkara. The allegation in the petition was that it was within the jurisdiction of the learned Magistrate that they last resided, as husband and wife. On a consideration of the evidence led by the parties, that allegation has been found against. It is not open to the petitioner to challenge that finding in revision. On this finding, the learned Magistrate held that the husband's residence being in Muttathara Pakuthy which is in Trivandrum Taluk within the jurisdiction of the District Magistrate of Trivandrum, he had no jurisdiction to decide the case. From the order of the learned Magistrate it is seen that the husband is employed at Pappanancode in the body-building section of State Transport Department and this place of employment is admittedly within the jurisdiction of Neyyattinkara Court. Section 488(8), Criminal Procedure Code, reads 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.” The question for consideration is whether the language of the section is sufficiently wide to confer jurisdiction on the learned Magistrate to deal with the application in view of the fact that the opposite party is employed within the jurisdiction of the Magistrate. The object of the section no doubt was to confer jurisdiction upon the Court within the district in which the permanent residence or home of the husband happens to be situated. But the words ‘or is’ used in the sub- section is not without significance. By the use of the word ‘or is’ the intention of the Legislature appears to be that proceedings may be taken against the husband who had no permanent residence within the jurisdiction of the Magistrate concerned, but who might be easily found there. The object is to make it as easy as possible for an aggrieved person to obtain an order of maintenance under the provisions of the section. Sub- section (8) should be construed liberally so that a helpless woman is not deprived of assistance from a Court easily accessible to her. The object is to make it as easy as possible for an aggrieved person to obtain an order of maintenance under the provisions of the section. Sub- section (8) should be construed liberally so that a helpless woman is not deprived of assistance from a Court easily accessible to her. I am therefore of opinion that even though the place of residence is not within the jurisdiction of Neyyattinkara Magistrate, since the counter-petitioner the husband is employed within the jurisdiction of the Magistrate the Magistrate gets jurisdiction to try the case. In Sm. Indubala Devi v. Satchid Prosad1 a similar question arose and Edgley, J. stated: “The expression ‘where he resides or is or where he last resided with his wife’ in section 488(8) is sufficiently wide to confer jurisdiction upon a Presidency Magistrate in a case in which the opposite party works for gain within the jurisdiction of his Court, although he may not have a permanent residence within such jurisdiction.” A similar view was expressed by Mookerjee, J., in Panchu Gopal Modak v. Dolly Modak2. In that case the husband had no place of residence in the town of Calcutta, but he used to carry on his regular business in Calcutta at 15, Strand Road. Differences having arisen between the husband and the wife, the wife filed an application for maintenance under section 488 of the Code of Criminal Procedure in the Court of the Chief Presidency Magistrate, Calcutta. The learned Magistrate allowed the application. It was contended by the husband that the order of the learned Magistrate was bad, because he had no jurisdiction to entertain the said application. Mookerjee, J., observed: “The word ‘is’ in the expression, ‘resides or is’ in section 488(8) of the Code isof much wider import than residence, permanent or temporary and includes the regular place of business of the party concerned or the place, where he regularly works for gain. Generally speaking the word ‘resides’ has a technical meaning, having reference to the place, where a person has his dwelling house or where he lives or sleeps. The word ‘is’ when liberally construed, may, however, refer to all places where the person can be found during particular hours of the day. When, therefore, the clause speaks of or refers to ‘resides or is’, what it has clearly in view is the person's usual or regular place of work or business. The word ‘is’ when liberally construed, may, however, refer to all places where the person can be found during particular hours of the day. When, therefore, the clause speaks of or refers to ‘resides or is’, what it has clearly in view is the person's usual or regular place of work or business. The object of incorporationg the word ‘is’ in the said clause is to enlarge the scope of the section as well as to remove the possible ambiguity which may, otherwise, arise from the use of the single word ‘resides’.” The order of the learned Magistrate is, therefore set aside. He is directed to restore the petition to file and dispose of it according to law on the merits. The revision petition is allowed. M.C.M.-----Petition allowed.