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2011 DIGILAW 693 (MAD)

Mohanambal v. Annadurai

2011-02-09

K.B.K.VASUKI

body2011
Judgment : 1. The criminal revision is filed against the Order made in Crl.R.P. No. 47 of 2006 which is in turn against the order made in M.C. No. 20 of 2005. The wife, who is the petitioner in maintenance case is the petitioner herein. The maintenance case filed by the petitioner is among other grounds objected to as not maintainable before the Court of Judicial Magistrate-I, Vridhachalam. 2. It is contended by the learned- counsel for the respondent/husband that the petitioner is not living in the residential address as given in the petition which falls within the jurisdiction of Vridhachalam, but is living in Neyveli and Vridhachalam Judicial Magistrate-I has no territorial jurisdiction to try the maintenance petition filed by the wife. However, the parties entered the trial and let in evidence on merits and evidence was also let in to show that the petitioner was residing elsewhere outside the jurisdiction of Vridhachalam and not in the address as given in the petition, and the matter was allowed to proceed with and the case was subsequently disposed of in favour of the wife holding the legal objection as well as her claim on merits in her favour. 3. The trial Court has in its order dated 17.5.2005 found that the petitioner is living with her parents and the parents are living in S.Pudur and such finding is rendered materials made available by the petitioner and on the strength of admission made by the respondent to the effect that the petitioner has been, after leaving him, residing in her parents‘ house. The trial Court has also on facts held that the petitioner has been living away from her husband on sufficient ground and it is the husband who failed to take care of her and she is without any independent source of income and the respondent is bound to maintain her and awarded maintenance of Rs. 1,500/- per month and- Rs. 2,000/-per year for other expenses. 4. The order of the trial Court is set aside by the revisional Court mainly on the ground that the petitioner is living in Tandavankuppam, Neyveli which falls within the jurisdiction of Neyveli Magistrate Court and the petitioner has been already awarded interim maintenance, pending matrimonial O.P. filed by the husband/respondent herein. 5. 2,000/-per year for other expenses. 4. The order of the trial Court is set aside by the revisional Court mainly on the ground that the petitioner is living in Tandavankuppam, Neyveli which falls within the jurisdiction of Neyveli Magistrate Court and the petitioner has been already awarded interim maintenance, pending matrimonial O.P. filed by the husband/respondent herein. 5. As far as the matrimonial O.P. is concerned, the same is admittedly, during the pendency of M.C. disposed of and as the interim maintenance awarded is pending disposal of the matrimonial O.P. the interim order merged with the final order and is not in force and the husband cannot be permitted to take shelter under the same to deny his liability in M.C. The only defence available to the husband is to adjust the amount already paid by him and nothing more. 6. Regarding the territorial jurisdiction the petitioner has in her petition given her residential address as S. Pudur Village, Sirupakkam, Tittakudi Taluk which falls within the jurisdiction of Vridhachalam. In this regard, the document to be looked into is Exhibit P-1 the family ration card of the father which would reveal that the ration card is issued to her parents in S. Pudur Village address. It may be true that her name is not mentioned so in the ration card and the same is sought to be explained by the petitioner by saying that as she is already married and as she came and lived with her parents only after her husband left her name is not found in Exhibit P-1 which is obtained much before the same and such explanation is rightly accepted by the trial Court. The fact that the wife has been presently living with her parents is also admitted by the husband and trial Court hence accepted the wife‘s case regarding the maintainability of the maintenance case before Vridhachalam Court. However, the revisional Court has by relying upon Exhibit D-1 Application Form given by the father and Exhibits R-1 and 2 which are the family ration card extract arrived at a conclusion that the parents are living in Tandavankuppam which falls within the jurisdiction of Neyveli. However, the revisional Court has by relying upon Exhibit D-1 Application Form given by the father and Exhibits R-1 and 2 which are the family ration card extract arrived at a conclusion that the parents are living in Tandavankuppam which falls within the jurisdiction of Neyveli. It may be true that Exhibit D-1 is according to P.W.4 father, application given for renewing the earlier ration card and as they were originally residing at Neyveli their residential address is so given in the same and as per Exhibit R-2 entry that the new ration card is issued to P.W.4 in the old Tandavankuppam address. But in the opinion of this Court not be placed any reliance in view of Exhibit P-1 ration card is also produced in original and the copy of which is marked as exhibit. As it is not in dispute that Exhibit P-1 relates to the petitioner‘s parents and the same is issued to S. Pudur address, no reliance need to be attached to the address mentioned in Exhibit D-1 and this Court finds no reason to disagree with such finding of the trial Court. 7. Even assuming it to be true that the petitioner resides only in Neyveli falling within the jurisdiction of Neyveli and not in S. Pudur and Vridhachalam Judicial Magistrate Court has no territorial jurisdiction to: entertain the petition under Section 125 of Cr.P.C. the same will not render the finding on merits by the trial Court to be set aside. As rightly pointed out by the learned counsel for the wife, the petitioner can take shelter under the provisions of Section 462 Cr.P.C. For better understanding Section 462 Cr.P.C. is extracted hereunder: “462. Proceedings in wrong place-No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions, division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” In this case, the husband has except raising an objection regarding the territorial jurisdiction of Vridhachlam jurisdiction Court, not raised any plea as if the trial conducted by Vridhachalam jurisdiction Court, the outcome of which is the finding in favour of the wife resulted in any failure of justice. In this regard, the learned counsel for the petitioner has also cited the authority of three Judges larger Bench judgment of Andhra Pradesh High Court in Santi Seetharamayya and Another v. Santi Yegna Narayana Murthy and Another LNIND 1998 AP 506. The Andhra Pradesh High Court has under identical circumstance following the judgment of Apex Court, in Smt. Raj Kumari Vijh v. Dev Raj Vijh and in Purushottamdas Dalmia v. State of West Bengal upheld the order of the Magistrate awarding maintenance, the petitioner therein is the parents and the petition filed is for maintenance under Section 125 of Cr.P.C. The Andhra Pradesh High Court has, having found that the respondent therein submitted to jurisdiction and participated in the proceedings and by adducing evidence, held that the respondent cannot be permitted to raise the plea of territorial jurisdiction which is as observed by the Hon‘ble Supreme Court just a matter of convenience. The observation of the Apex Court is extracted in Para-12 of the Andhra Pradesh High Court order as follows: “12. In the case of Smt. Raj Kumari Vijh v. Dev Raj Vijh (supra) the Apex Court, relying on its earlier decision in the case of Purushottamdas Dalmia v. State of West Bengal (supra), has reiterated that: “... there are two types of jurisdiction of a Criminal Court, namely, (1) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (2) its territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the latter is not of a preemptory character and is curable under Section 531 of the Code. Territorial jurisdiction is provided “just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court”. Territorial jurisdiction is provided “just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court”. Sub-section (8) of Section 488 in fact provides that proceedings under the 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.” This therefore is ordinarily the requirement as to the filing of an application under Section 488 within the limits of the jurisdiction of the Magistrate concerned. So where a Magistrate has the power to try a particular application under Section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why Section 531 of the Code should not be applicable to the order made by him. It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of Section 531.” 8. The Apex Court has in the case dealt with by it, did not interfere in the finding of fact, but held that the High Court has committed a serious error of law in refusing to invoke Section 531 of the old Code in the facts and circumstances of the case. It has been held that, on considering the entire evidence as also the conduct of the appellant, the Magistrate had concluded that it has jurisdiction to try the application and, therefore, there was no reason why Section 531 of the old Code should not be held to be applicable in that case. The Apex Court was further pleased to observe that there was, no question of failure of justice or prejudice to the respondent. Holding so, the judgment of the High Court was set aside and the order of the Magistrate granting maintenance was restored. 9. The Apex Court was further pleased to observe that there was, no question of failure of justice or prejudice to the respondent. Holding so, the judgment of the High Court was set aside and the order of the Magistrate granting maintenance was restored. 9. It is observed by the Andhra Pradesh High Court that Section 462 Cr.P.C. corresponds to Section 531 of the old code and the policy of the code is to uphold, in most case, the orders passed by the Criminal Court which was lacking in local jurisdiction or which had committed irregularities unless failure of justice has been occasioned through such want of jurisdiction or such illegalities or irregularities. That being the legal position, the revisional Court has committed a serious error in reversing the finding of the trial Court on the ground of territorial jurisdiction, without the respondent pleading and establishing any failure of justice for want of jurisdiction. By applying the legal principles laid down by the Apex Court, the order of revisional Court cannot be factually and legally sustained and is hence set aside. It would be in the interest of justice to restore the order of trial Court awarding maintenance to the petitioner/wife. 10. In the result, the revision petition is allowed, by setting aside the order dated 30.11.2007 made in Cr.R.P. No. 47 of 2006 on the file of Additional District Sessions Court Vridhachalam and by confirming the order dated 17.7.2006 made in M.C. No. 20 of 2005 on the file of learned Judicial Magistrate-I, Vridhachalam. 11. The respondent is directed to pay the arrears, if any, within eight weeks from the date of receipt of the copy of this order and thereafter, is directed to pay the maintenance at Rs. 1,500/- per month on or before seventh of every succeeding month and Rs. 2,500/-per year in the first week of first month of the succeeding year. Consequently, the connected miscellaneous petition is closed.