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2024 DIGILAW 1969 (ALL)

Majid Khan v. State of Uttar Pradesh

2024-08-30

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : (Saurabh Shyam Shamshery, J.) 1. The Court proceed to decide present case, i.e., an objection with regard to jurisdiction of an application filed under Section 125 Cr.P.C., in the background that Supreme Court in a judgment passed about four and half decades ago, has observed that provisions of Section 125 Cr.P.C. is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. (See, Captain Ramesh Chander Kaushal vs. Mrs. Veena Kuashal and others, AIR 1978 SC 1807 ). 2. Above observation has been followed in Smt. Dukhtar Jahan vs. Mohammed Farooq (1978)1 SCC 624; Vimla (K.) vs. Veeraswamy (K.) (1991)2 SCC 375 ; Kirtikant D. Vadodaria vs. State of Gujarat and another (1996)4 SCC 479 ; Chaturbhuj vs. Sita Bai (2008)2 SCC 316 and Bhuwan Mohan Singh vs. Meena and others (2015)6 SCC 353 . 3. In the present case, Opposite Party No. 2, i.e., complainant, has filed an application under Section 125 Cr.P.C. on 30.07.2021 declaring herself to be resident of District Bareilly. 4. In aforesaid case applicant appeared and filed an objection that complaint is resident of Delhi and she has filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “Act, 2005”) stating that she was a resident of Delhi and during proceeding thereof the address was verified also. Applicant has challenged the maintainability of application so filed under Section 125 Cr.P.C. on ground of jurisdiction. 5. Complainant has filed a reply to aforesaid objection mentioning specifically that her permanent address where her parents reside is at Bareilly and only for the purpose of job she stayed at Delhi and she has frequent visits to her permanent address at Bareilly. 6. Principal Judge, Family Court, Bareilly considered the application of complainant and objection of applicant and passed impugned order dated 21.01.2023 whereby objection with regard to jurisdiction was rejected. For reference impugned order is reproduced hereinafter: 7. 6. Principal Judge, Family Court, Bareilly considered the application of complainant and objection of applicant and passed impugned order dated 21.01.2023 whereby objection with regard to jurisdiction was rejected. For reference impugned order is reproduced hereinafter: 7. Sri Mohammad Fateh, learned counsel for applicant, has placed reliance on a judgment passed by High Court of Madhya Pradesh at Gwalior in Nirman Sagar vs. Smt. Monika Sagar Chaudhari and another (Criminal Revision No. 3060 of 2021), decided on 01.04.2022 that in terms of Section 126 Cr.P.C. the proceedings under Section 125 Cr.P.C. can be initiated in any district where he or his wife resides or where he last resided with her wife or as the case may be with the mother of the illegitimate child and further held that word ‘reside’ would not include a casual stay or a flying visit to a particular place. 8. Above submissions are vehemently opposed by Sri Mohd. Zubair, learned counsel appearing for Opposite Party No. 2 and he placed reliance on Captain Ramesh Chander Kaushal (supra) that since provisions of Section 125 Cr.P.C. are of welfare legislation, therefore, the issue of jurisdiction be also considered in a liberal manner. 9. On merit, learned counsel for Opposite Party No. 2 submits that Trial Court has considered that Bareilly is permanent residence of complainant where she is frequently visiting and only for the purpose of job she stays at Delhi though he has not disputed that an application under Section 12 of Act, 2005 was filed at Delhi. 10. Heard learned counsel for parties and perused the material available on record. 11. Aforesaid fact with regard to filing of application under Section 12 of Act, 2005 at Delhi as well as complainant resides at Delhi for the purpose of job, is not under dispute. It is also not under much dispute that complainant’s parents are permanent resident of Bareilly. Marriage was also solemnized at Bareilly. Therefore, it cannot be much disputed that complainant is visiting at her permanent residence frequently. As such, it cannot be said that visit to Bareilly was a casual stay or a flying visit. Permanent address of complainant at Bareilly would fall within the contour of ‘reside’. 12. Marriage was also solemnized at Bareilly. Therefore, it cannot be much disputed that complainant is visiting at her permanent residence frequently. As such, it cannot be said that visit to Bareilly was a casual stay or a flying visit. Permanent address of complainant at Bareilly would fall within the contour of ‘reside’. 12. The other argument of learned counsel for applicant is that since application under Section 12 of Act, 2005 was filed by complainant at Delhi, therefore, she is now not permitted to file any application at Bareilly. However, if this argument is accepted, the very purpose of Section 125 Cr.P.C., which is already referred as a welfare legislation, would be frustrated. Therefore, this Court by invoking inherent power under Section 482 Cr.P.C. cannot become a tool to frustrate the very object of Section 125 Cr.P.C. merely on objection of jurisdiction. The Court cannot ignore that it is not much disputed that complainant’s parents are permanent resident of Bareilly and she has frequent visit thereat. 13. The facts of present case are distinguishable from the facts of judgment cited by learned counsel for applicant in Nirman Sagar (supra). Section 126 Cr.P.C. provides that proceedings under Section 125 Cr.P.C. may be taken against any person in any district where he is residing or where he or his wife resides. Therefore, if wife resides at Bareilly, she can file complaint under Section 125 Cr.P.C. at Bareilly also. It is upto the complainant to chose the place of jurisdiction and in the present case complainant has chosen to file complaint at Bareilly. 14. In aforesaid circumstances, I do not find that there is any ground to interfere with impugned order whereby objection with regard to jurisdiction was rejected. 15. The application is accordingly rejected.