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2005 DIGILAW 15 (JK)

S. Amarjit Singh v. Parkash Kour

2005-02-10

Y.P.NARGOTRA

body2005
1. The petitioner herein is the husband of the respondent. He is invoking the inherent jurisdiction vested under section 561-A Cr.P.C, in this court for seeking quashment of the order dated 2.12.2003 which in fact is dated 17.11.2003 passed by the learned Judicial Magistrate City Judge, Jammu. 2. The respondent-wife has filed an application under section 488 Cr.P.C, for claiming maintenance against the petitioner-husband on the allegation that she was married to the respondent on 25.5.1981 at village Abtal Ramgarh Tehsil Samba District Jammu and out of the wedlock two issues were born, one male and the other female. Female child is living with her husband. That her husband used to beat her every day and thus made her life miserable. She has been deserted by her husband who is staying away from her. The husband is a man of substance has an income of Rs. 20,000/- per month. It is also alleged that during the subsistence of her marriage, her husband has conducted a second marriage and has been neglecting to maintain her. She has been granted Rs. 500/- per month as maintenance by the Matrimonial court at Jammu, but the same is not sufficient for her survival, so she be granted maintenance from her husband. The petitioner herein who was husband before the court below took up the objection to the maintainability of the application, but the learned trial court has held the application maintainable hence this petition. 3. I have heard the learned Counsel for the parties and gone through the record of the case. Learned counsel for the petitioner firstly contends that the courts at Jammu do not have the jurisdiction to hear the application of the respondent-wife for the reason that petitioner resides in Tehsil Samba and same is the place where they had also last resided as husband and wife. According to him it is only the court at Samba which has jurisdiction to hear the application. 4. Where application under section 488 Cr.P.C. can be filed a provision in this behalf is contained in the section itself. Sub-section (8) of section 488 of Cr.P.C. 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.� 5. Sub-section (8) of section 488 of Cr.P.C. 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.� 5. From the bare reading of sub-section (8) it is manifest that the proceedings under this section can be taken against any person in any District (a) where he resides or (b) where he last resided with his wife or (c) is residing. The use of the words any District� in the sub-section is significant. The legislature in their wisdom have not used the words ˜the place where he resides™. By using the word ˜District™ the intention of the legislature appears to be that the proceedings under section 488 Cr.P.C. may be taken in any court within the District in which the respondent may be residing or in which he last resided with his wife. In the present case, the petitioner-husband resides within Tehsil Samba which falls within District Jammu, therefore, courts both at Samba and Jammu possess the jurisdiction to hear the application under section 488 Cr.P.C. filed by the wife-respondent. The contention of the learned counsel for the petitioner that legislature have not used the word ˜anywhere in the District™. According to him the absence of the word ˜anywhere™ is significant and the absence thereof suggests that it has to be the court within whose jurisdiction the husband resides or has last resided. I do not agree with the learned counsel for the petitioner for reading the section as suggested by him. The words in which this sub-section is couched do not admit of any ambiguity. The provision made in section 488 Cr.P.C. being a social welfare legislation is for the benefit of the destitute wife and children. It is their convenience, which has to be kept in view for interpreting the scope of the section. Situation can be conceived where it may not be possible for a wife to launch proceedings against her husband at a place where he may be actually residing. To provide a redressal forum near the place of the residence of the destitute wife instead of words anywhere in the District� the words any District� have been used in the section. Situation can be conceived where it may not be possible for a wife to launch proceedings against her husband at a place where he may be actually residing. To provide a redressal forum near the place of the residence of the destitute wife instead of words anywhere in the District� the words any District� have been used in the section. By using the aforesaid words in the section, the general rule of territorial jurisdiction that a person can be sued at the place where he resides or where the cause of action arises has been relaxed by enlarging its scope to enable the wife to chose a court for suing her husband within the district of his residence as per her convenience. With the aforesaid object in view sub-section (8) has now been further amended by Act No. XIII of 2004, the amended sub-section (8) now reads as follows: - Proceedings under this section may be taken against any person in any district where he has or he or his wife resides or where he last resided with his wife or case the case may be, mother of illegitimate child.� 6. Now under the amended provision a wife can file an application against her husband under section 488 of Cr.P.C. for maintenance at the place where she is residing itself. Therefore, the learned trial court was right in rejecting the objection of the petitioner in this behalf. Learned counsel for the petitioner next contends that the present application of respondent-wife under section 488 Cr.P.C. is barred by the principle of res-judicata. He submits that prior to the filing of present application, she filed a similar application under section 488 Cr.P.C. in the court of learned Sub Judge Judicial Magistrate, Jammu which was however, dismissed by the learned Sub Judge by his order dated 13.12.1993 by holding that he possessed no jurisdiction to hear the application. The contention of the learned counsel for the petitioner is not acceptable. There is no provision in the Code which bars a second application under this section. Even by applying general principle of res-judicata, the present application cannot be held to be barred for the reasons that that was not decided on merits after adjudicating upon the dispute. It was only decided on the question of jurisdiction. There is no provision in the Code which bars a second application under this section. Even by applying general principle of res-judicata, the present application cannot be held to be barred for the reasons that that was not decided on merits after adjudicating upon the dispute. It was only decided on the question of jurisdiction. A decision rendered on merits of the case after hearing and adjudicating upon the dispute can only bar the second application on the same facts on which the earlier application has been adjudicated upon by application of general principal of res-judicata. Learned counsel further contended that parties to the petition are living separately by consent as such petition is barred under sub-section (4) of section 488 Cr.P.C. Similar objection was raised before the trial court by the petitioner and learned trial court has deferred the finding saying that the issue is factual one and can be gone into at the stage of evidence. The view of the learned trial court in this behalf cannot be faulted with. Therefore, there is no merit in the petition. It is as such dismissed.