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2001 DIGILAW 298 (MP)

Usha Gurubaxani v. Lalit Gurubaxani

2001-03-31

USHA SHUKLA

body2001
ORDER 1. Applicant is the first wife of non-applicant No. 1 and non-applicant No. 2 is his brother. A complaint was filed by her before the Judicial Magistrate First Class, Jabalpur against both the aforesaid non-applicants and five others including the second wife of non-applicant No.1. The case was registered by the Magistrate against the two non-applicants alone for an offence of bigamy under section 494 of the Indian Penal Code against Lalit Gurubaxani, and under section 494/109, IPC against his brother non-applicant No.2. Both the non-applicants challenged the jurisdiction of the Court alleging that only the Court at Satna where the first marriage was performed, or the Court at Rewa where the second marriage was performed, had jurisdiction to try the offence. This objection was overruled by the learned Magistrate by an order passed on 16.9.1996, holding that the Court at Jabalpur had jurisdiction under section 182(2) of the Code of Criminal Procedure, 1973. This order was, however, set aside in revision by Sessions Judge, Jabalpur on 12th December, 1996. It is this order of the learned Sessions Judge which has been challenged before us in this revision petition. 2. The learned counsel for the applicant argued that the learned Sessions Judge had erred in holding that the Court at Jabalpur had no jurisdiction. The restricted view taken by the learned Sessions Judge that absence of averments about permanent residence of the complainant within the territorial jurisdiction of the Court of Jabalpur was fatal to the case, was totally unjustified. The learned Sessions Judge ought to have been guided by the spirit of the section and the intention of the Parliament and ought to have held in favour of the complainant in the light of the fact that she had filed her own affidavit and that of her brother Prakash Kesharwani in support of her case that she had taken parliament residence with her mother at Jabalpur at the address given in the complaint, as was done by the learned Judicial Magistrate. Reliance was placed on Ravindra Khare v. Gurmeet Singh ( 1985 CrLJ 601 ) and Tekumalla Muneiah. V. Chittari Babunuri Ammanamma and another (I (1991) DMC 379) . 3. Reliance was placed on Ravindra Khare v. Gurmeet Singh ( 1985 CrLJ 601 ) and Tekumalla Muneiah. V. Chittari Babunuri Ammanamma and another (I (1991) DMC 379) . 3. The learned counsel for non-applicants No.1 and 2 supported the order of Sessions Judge contending that the averments regarding her permanent residence at Jabalpur after the commission of the offence were essential to clothe the Court at Jabalpur with jurisdiction to try the offence of bigamy. In support of this contention reliance was placed on Sushil Chandra Khare v. Mamta Khare (1984 M.P. Weekly Notes 211). 4. We have carefully considered the arguments advanced by both the sides and have gone through the record of the lower Court. The question of jurisdiction in this case is governed by section 182(2) of the Code of Criminal Procedure. The provision is reproduced below: "'182. Offences committed by letters, etc. (1) Any offence which includes cheating may...................................... XXX XXX XXX (2) Any offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence." 5. It may be noticed that the section as it originally stood conferred jurisdiction only to the Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage. The clause" or the wife by the first marriage has taken up permanent residence after the commission of the offence" was incorporated by the amending Act of 1978. Eventually this was done to facilitate the first wife to file a complaint at a place where she had taken up residence after the husband married again. The intention of the Parliament clearly is to make it convenient for the deserted wife to prosecute the offending spouse. A hyper-technical view is likely to defeat the very spirit of the Act. Eventually this was done to facilitate the first wife to file a complaint at a place where she had taken up residence after the husband married again. The intention of the Parliament clearly is to make it convenient for the deserted wife to prosecute the offending spouse. A hyper-technical view is likely to defeat the very spirit of the Act. If there is sufficient material from which permanent residence of the first wife can be inferred at a place within the jurisdiction of the Court then the Court ought to decide the question of jurisdiction in favour of wife notwithstanding the fact that her written complaint does not specifically made such averments. We are fortified in our view by the decision cited by the applicant. It may be mentioned here that Sushil Chandra Khare's Case on which reliance was placed by the non-applicants is distinguishable on facts because the note docs not show that the father of the complainant wife was himself a permanent resident of Jabalpur. 6. In the case before us the applicant wife had given her address as 526, Agrawal Colony, Madan Mahal Jabalpur. It is true that she had not in so many words pleaded that she had taken up permanent residence at Jabalpur after the second marriage of her husband non-applicant no. 1. But this omission was later supplied by her when she filed her own affidavit and that of her brother Prakash Kesharwani to the effect that she was now permanently living with her mother Gyanidevi in latter's house No. 526 Agrawal Colony. Madan Mahal, Jabalpur. The photocopy of the Corporation tax receipt for the year 1995-96 was also filed about the ownership of the house. The learned Magistrate has rightly observed in his order that a deserted Indian wife who had no independent means of subsistence normally reverts back to her parents' house to seek shelter with her parents and brothers. It is also significant that the non-applicant had nowhere asserted that the applicant was living elsewhere outside the jurisdiction of the Court of Judicial Magistrate at Jabalpur. 7. Under these circumstances, the view taken by the learned Sessions Judge was unjustified and cannot be upheld. The impugned order passed by the learned Sessions Judge, Jabalpur is therefore set aside and the order dated 16.9.1996 passed by the Judicial Magistrate First Class, Jabalpur is restored.