TMI Blog1963 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... India on leave and took the first appellant also to Africa. There she gave birth to a daughter, the second appellant. As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not do so. In the year 1960, he came back to India. It is also in evidence that he had purchased property in Ludhiana District for ₹ 25,000/-. When he was admittedly in India, the first appellant filed a petition under s. 488 of the Code of Criminal Procedure in the Court of the First class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time. The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming maintenance at ₹ 200/- per month for both of them on the ground that the respondent deserted them and did not maintain them. The respondent filed a counter-affidavit denying the allegations and pleading that he said Court had no jurisdiction on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its jurisdiction. The learned Magistrate held that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea. 5. The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under s. 488 of the Code of Criminal Procedure. The question turns upon the interpretation of the relevant provisions of s. 488(8) of the Court, which demarcates the jurisdiction limits of a Court to entertain a petition under the said section. Section 488(8) of the Code reads : 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. . 6. The crucial words of the sub-section are, resides , is and where he last resided with his wife . Under the Code of 1882 of Magistrate of the District where the husband or father, as the case may be, resided only had jurisdiction. Now the jurisdiction is wider. It gives three alternative forums. This, in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as pointed out that a casual or a flying visit to a place was excluded from the scope of the word resides . A full Bench of the Allahabad High Court, in Flowers v. Flowers, (1910) I.L.R. 32 All. 203., expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not covered by the word resides . In Balakrishna v. Sakuntala Bai A.I.R. 1942 Mad. 666., it was held that the expression reside implied something more than stay and implied some intention to remain at a place and not merely to pay it a casual visit. In Charan Das v. Surasti Bai A.I.R. 1940 Lah. 449., it was held that the sole test on the question of residence was whether a party had animus manendi, or an intention to stay for an indefinite period, at one place; and if he had such an intention, then alone could he be said to reside there. 9. The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated nod decision goes so far as to hold that resides in the sub-section means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re he last resided with his wife are construed in vacuum, the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the Code of Criminal Procedure. Section 2(1) of the Code extends the operation of the Code to the whole of India except the States of Jammu Kashmir; that is to say, the provisions of the Code, including s. 488(8) thereof, have operation only throughout the territory on India, except the States of Jammu Kashmir. If so when sub-s. (8) of s. 488 of the Code, prescribing the limits of jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India. It cannot obviously mean his residing with her in foreign country, for an Act cannot confer jurisdiction on a foreign court. It would, therefore, be a legitimate construction of the said expression if we held that the district where he last resided with his wife must be a district in India. 11. In In re Drucker (No. 2) Basden [(1902) 2 K.B. 210.], Ex Parte [(1902) 2 K.B. 210.], the words or in any other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the existence of the person in the district when the proceedings are taken. It is must wider than the word resides : it is not limited by the animus manendi of the person or the duration or the nature of his stay. What matters is his physical presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to reach a person, who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country, but returns to that district or a neighbouring one on a casual or a flying visit. The wife can take advantage of his visit and file a petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and file a petition under s. 488 of the Code. She may accidentally meet him in a place where he happens to come by coincidence and take action against him before he leaves the said place. This is a salutary provision intended to provide for such abnormal cases. Many illustrations can be visualize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame there with the definite purpose of living with him wife in his native place and he lived there for about 6 months with her. The second visit appears to be only a flying visit to take her to Africa. In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate, Ludhiana. That apart, it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him. The said Magistrate had jurisdiction to entertain the petition, as the said proceedings can be taken against any person in any district where he is . We, therefore, hold that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under s. 488(8) of the Code. 16. The next question relates to the quantum of maintenance to be awarded to the appellants. The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of ₹ 100/- per month for herself and at the rate of ₹ 50/- per month for the maintenance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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