# RA] KUMARI VIJH v. DEV RAJ VIJH

- **Citation:** [1977] 2 S.C.R. 997
- **Court:** Supreme Court of India
- **Decided:** 1977-02-15
- **Case number:** Criminal Revision Petition No. 61 of 1974
- **Bench:** P. N. Bhagwati, A. C. Gupta, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ra-kumari-vijh-v-dev-raj-vijh-7143
- **Pages:** 10

## Headnote

Code of Criminal Procedure.
1898---Ss. 488
and 531-Scope of.
Section 531 of the Criminal Procedure Code,
1898 provides that no finding,
sentence or order of any criminal Court shall be set aside merely on the ground
that the enquiry, trial or other proceeding in the course of which it was arrived
at or passed, took place in
a wrong sessions division, district, snb-division
or
(éth'ertlocal
area, unless it appears that such error has in fact occasioned a failure
0
1115 we.
In her claim for maintenance from the respondent, who was her husband, the
appellant filed a petition under
s. 488 Cr.P.C. in the Court of a Magistrate. The
respondent took objection to the Court's jurisdiction to try the case on the ground
that the parties did not reside within its jurisdiction.
The Magistrate passed
an
order. that the dec1sion on the question of jurisdiction must await the recording
of eVidence
on the whole
case.
The respondent did
not challenge that order.
Ultimately the Magistrate held that he had the jurisdiction
to entertain
the
application and decided it on the merits.
The Sessions Judge referred the
respondent's revision application to the High Court.
The High Court he'fd that by
taking recourse to s. 531, proceedings could not be entertained in a Court which
had no jurisdiction-anew so when an objection had been taken against its maintainability-and that
s. 531-could
cure the infirmity only if the
case had been
fought
on merits.
Allowing the appeal,
HELD: The High Court' erred in taking the View that
s. 531 would not be
applicable to this
case merely because the objection
as to the jurisdiction
was
raised by the respondent right at the first instance.
[1003 F]
l. (a) Territorial jurisdiction is provided
as
a matter of convenience for the
Court, the accused and the witnesses.
Under
s. 488(8)
a proceeding may be
taken against any person in any district where he resides or is
or where he last
resided
with
his
wife.
[1001 F-G]
(b) Where
a Magistrate has the power to try
a particular application under
s. 488, and the controversy relates solely to his
territorial
jurisdiction,
there
should, ordinarily, be
no
reason why
5.
531
should
not be
applicable
to
the
order made by him.
[1001 H]
'
(c) The true meaning of
s. 531
is that while it will not uphold
an
order
passed in proceedings wilfiilly taken in
a wrong place,
or enable
a Magistrate
to confer jurisdiction on himself when he knows that he has no such jurisdiction,
there is no reason why a Magistrate, who is otherwise duly empowered to make
an order under
s. 488(1), cannot proceed with
an application under that subsection for the purpose of deciding whether he has the territorial jurisdiction to
entertain the application and to decide the application
on the merits if he finds
that he
has the territorial jurisdiction.
Section
531
cannot be said
to be
inapplicable
to
a
case where there is
a controversy
as
to the district where the
proceeding should be held, the parties lead eVidence in support of their respective contentions about the correct place of the proceeding,
and the~ Magistrate
finds it necessary (after taking note of the entire evidence
on the controversy)
to arrive at a decision on the basis of the balance of probabilities.
There is no
reason why, in'such a case,
s. 531 should not be applicable merely because the
Magistrate, while considering
the evidence relating
to jurisdiction, unWittingly
998
.
SUPREME COURT REPORTS
[1977] 2 5.0Krnakes a reference to s. 531 in passing and not for the purpose of assuming jurisdiction under it.
If the Magistrate, in this case, had thought of assuming jurisdiction under s. 531,_he would not have proceeded to record the evidence of the
parties, on the question of the territorial jurisdiction, or referred to it at length
111 his order and arrived at the decision that he had the jurisdiction. [1002 D-G]
Purushottamdas Da/miu
v.
The
State of West Bengal [1962]
2 S.C.R.
101
followed.
Rad/tarani
v. Ra/lim
Sarah/r.
A.I.R.
1946 Calcutta 459.
Saktlnz'al

## Text

é
i
997
RA] KUMARI VIJH
V.
DEV RAJ VIJH
February 15, 1977
[P. N. BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.]
Code of Criminal Procedure.
1898---Ss. 488
and 531-Scope of.
Section 531 of the Criminal Procedure Code,
1898 provides that no finding,
sentence or order of any criminal Court shall be set aside merely on the ground
that the enquiry, trial or other proceeding in the course of which it was arrived
at or passed, took place in
a wrong sessions division, district, snb-division
or
(éth'ertlocal
area, unless it appears that such error has in fact occasioned a failure
0
1115 we.
In her claim for maintenance from the respondent, who was her husband, the
appellant filed a petition under
s. 488 Cr.P.C. in the Court of a Magistrate. The
respondent took objection to the Court's jurisdiction to try the case on the ground
that the parties did not reside within its jurisdiction.
The Magistrate passed
an
order. that the dec1sion on the question of jurisdiction must await the recording
of eVidence
on the whole
case.
The respondent did
not challenge that order.
Ultimately the Magistrate held that he had the jurisdiction
to entertain
the
application and decided it on the merits.
The Sessions Judge referred the
respondent's revision application to the High Court.
The High Court he'fd that by
taking recourse to s. 531, proceedings could not be entertained in a Court which
had no jurisdiction-anew so when an objection had been taken against its maintainability-and that
s. 531-could
cure the infirmity only if the
case had been
fought
on merits.
Allowing the appeal,
HELD: The High Court' erred in taking the View that
s. 531 would not be
applicable to this
case merely because the objection
as to the jurisdiction
was
raised by the respondent right at the first instance.
[1003 F]
l. (a) Territorial jurisdiction is provided
as
a matter of convenience for the
Court, the accused and the witnesses.
Under
s. 488(8)
a proceeding may be
taken against any person in any district where he resides or is
or where he last
resided
with
his
wife.
[1001 F-G]
(b) Where
a Magistrate has the power to try
a particular application under
s. 488, and the controversy relates solely to his
territorial
jurisdiction,
there
should, ordinarily, be
no
reason why
5.
531
should
not be
applicable
to
the
order made by him.
[1001 H]
'
(c) The true meaning of
s. 531
is that while it will not uphold
an
order
passed in proceedings wilfiilly taken in
a wrong place,
or enable
a Magistrate
to confer jurisdiction on himself when he knows that he has no such jurisdiction,
there is no reason why a Magistrate, who is otherwise duly empowered to make
an order under
s. 488(1), cannot proceed with
an application under that subsection for the purpose of deciding whether he has the territorial jurisdiction to
entertain the application and to decide the application
on the merits if he finds
that he
has the territorial jurisdiction.
Section
531
cannot be said
to be
inapplicable
to
a
case where there is
a controversy
as
to the district where the
proceeding should be held, the parties lead eVidence in support of their respective contentions about the correct place of the proceeding,
and the~ Magistrate
finds it necessary (after taking note of the entire evidence
on the controversy)
to arrive at a decision on the basis of the balance of probabilities.
There is no
reason why, in'such a case,
s. 531 should not be applicable merely because the
Magistrate, while considering
the evidence relating
to jurisdiction, unWittingly
998
.
SUPREME COURT REPORTS
[1977] 2 5.0Krnakes a reference to s. 531 in passing and not for the purpose of assuming jurisdiction under it.
If the Magistrate, in this case, had thought of assuming jurisdiction under s. 531,_he would not have proceeded to record the evidence of the
parties, on the question of the territorial jurisdiction, or referred to it at length
111 his order and arrived at the decision that he had the jurisdiction. [1002 D-G]
Purushottamdas Da/miu
v.
The
State of West Bengal [1962]
2 S.C.R.
101
followed.
Rad/tarani
v. Ra/lim
Sarah/r.
A.I.R.
1946 Calcutta 459.
Saktlnz'ala v.
Thimmalyya [1966]
2 M.L.J.
326. Slate
V. Tamra Naika A.I.R.
1959 Mysore
193.
Sultan Clland
V.
Yogindra Natl:
Baz. A.I.R.
1944,
Peshawar
25
and
Satwam
Sing/1 v. sz'. Jarwanr Kaur, [1956] A.L.J. 134, held inapplicable.
In the instant case, the Magistrate was one of the Magistrates mentioned
in
s. 488(1).
He had specifically rejected the respondent's application for confining
the evidence to the question of jurisdiction or to try that
as
a preliminary issue.
It cannot therefore be said that he had given himself jurisdiction by recourse to
s.
531.
The Magistrate had
set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the
respondent-4111 of which led to the conclusion that he had the jurisdiction to trv
the application.
There
is
therefore
no
reason why
3.
531
should not be held
to
be applicable to this
case.
[1005F-H]
(d)
The High Court erred
in holding that
s.
531 would
not be applicable
because the respondent had reserved a right to file a written reply on merits after
the question of jurisdiction had been decided.
The Magistrate had specifically
overruled the respondent's objection, and directed the' parties to adduce evidence.
and deferred the decision on the question of jurisdiction until after the evidence
had
been
recorded.
The
respondent
did
not file
his reply
on
the
merits.
[lOOSG-H]
,
(e)
The High Court erred
in holding that there
was failure of justice
because the respondent never led evidence.
The Magistrate called upon the parties
to lead evidence.
While the appellant obeyed the order, the respondent persisted
in thinking that the Magistrate had
no jurisdiction, refused to examine his
witnesses
on merits, and chose
to confine his evidence to the question of jurisdiction.
[1004F-Hl
'
CIVIL
APPELLATE
JURISDICTION
: Criminal Appeal No.
447 of
1.974.
.
.
(Appeal by Special Leave from the Judgment and Order dated
the 14th March 1974 of the Delhi High Court in Criminal Revision
Petition No.
61
of
1974.
Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant.
V.
C. Mahajan and S. L. Anéja, for respondent.
"
The Judgment of the Court was delivered by
SHINGHAL, «Jr-This appeal by special leave is
directed
against
the judgment of the Delhi High Court dated March 14. 1974, allowing the revision application of respondent Dev Raj Viih
and
dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal
Procedure,
1898,
hereinafter
referred to
as the Code.
. Appellant Raj Kumari Vijh
was married to respondent Dev Raj
Vrjh in Delhi, in June 1950.
It is the admitted case of the parties
that they were living separately from 1953.
The appellant filed her
an.
"W"mfiwu-m.
»--..,.__
..
"w
t
gsmr. RAJ KUMARI v. DEV RAJ (Siting/ml, J.)
999
first application for maintenance under section 488
of the Code, in
1955, but it was dismissed.
The respondent filed an application for
divorce, or judicial separation, in
1956 in Aligarh (Uttar Pradesh).
It was ultimately dismissed} on appeal
on March 29,
1968.
In the
meantime the appellant filed a suit against the respondent for recovery
of her "st-ridhen" in Delhi in 1956.
It was decreed on appeal by the
Delhi, High Court in_1967, for Rs. 6,458 /'-.
The appellant gave
a
notice to the respondent on June 24, 1968, claiming maintenance as a
deserted wife.
Nothing
came
out of it and
she filed the
present
,.application_under section 48-8 of the Code in the Court of the Delhi
Magistrate on March 18, 1969.
It was stated in the application that
the appellant had lived with the respondent in Delhi and Aligarh
as
his legally wedded wife,
and
thereafter
at Village
Lampur, P. S.
Narela, Delhi, towards the endof December 1968,
because
the
respondent visited her there for
a settlement and for non-execution of
the decree which she had obtained for Rs. 6,458 /- on account of her
"stridhan".
It
was
stated in the application that the parties lived
at Lamlpur
as husband and wife and there
was cohabitation.
The
appellant prayed for an order allowing her Rs. 450/- per month for
maintenance as the respondent had sufficient means but had neglected
or refused to maintain her.
The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there
was
no specific denial of the averment
that the parties last resided together at Lampur.
An objection was
however taken that
as the earlier application was dismissed
on February 2, 1956, the second application was barred on the principle of
res judicata. An objection was taken to the jurisdiction of the Delhi
Court onthe ground. that the respondent never resided permanently
or temporarily in Delhi.
We have not found it possible to go through
the reply because it has been stated by counsel for the parties that the
original record has been destroyed.
The Magistrate passed an order
for production of evidence.
The respondent thereupon prayed that
the question of jurisdiction may be decided before recording the evidenge.
That
was
not agreed to by the magistrate.
He made
an
order
on November 19,
1969 that. the question of jurisdiction must
await the recording of the evidence
on the whole
case.
The
respondent did not challenge that order
or apply for permission to file
an additional reply.
On the other hand, he asked for the holding of
an identification parade for the purpose of showing that some of the
appellant's witnesses did not even know him.
Both the parties led
their evidence, although it appears that
the respondent did not like
to avail of the opportunity which was given to him to lead evidence
on the merits.
He did not even apply for permission to file any additional reply when theMagistrate recorded tthe appellant's evidence
on her' application for maintenance as
a whole.
Ultimately the Magistrate made his final order on May 21, 1973.
He took the View that there was no specific denial of the appellant's
allegation that the parties last resided together,
as husband and wife,
in village Lampur, in Delhi, towards the end of December in 1968.
1000
SUPREME COURT REPORTS
[1977] 2 s.C.R.
He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first
application,
was
not pressed by the respondent and after referring
to the entire evidence in details, he reached the conclusion that he
had the jurisdiction to entertain the application, and granted maintenance allowance at the rate of
Rs. 125/- per menth, with effect from
March 18, 1969, along with an order regarding the mode of payment
of the arrears.
The respondent applied for a revision of that order,
and the Additional Sessions Judge referred the case to the High Court
on November 30, 1973, for dismissal, of the application (under section
488 of the Code)
on the ground that the Delhi Magistrate had
no
jurisdiction
to entertain it.
As the High Court has
allowed
the
reference, and dismissed the revision application which was
filed
by
the appellant for
an
increase in the
maintenance
allowance,
the
appellant has come up to this Court by special leave.
In its impugned judgment dated March 14, 1974, the High Court
has "recorded the finding that the parties did not reside together at
village Lampur, and for that reason it took the View that the Delhi
Court had
no jurisdiction
to entertain the
appellant's
application
under section 488 of the Code.
Counsel for the appellant has
vehemently urged that
the finding of the, High Court is incorrect, but
as it is
a finding of fact,
we shall proceed on the assumption that
it does not call fort interference
in this appeal.
The question however remains whether section 531 of the Code would be applicable
to the case?
The High Court has held that the section would not
be applicable, and that is why it has passed the impugned order for
the dismissal of the application of the appellant under section 488
of the Code.
The High Court has taken that view for the following
reasons,-
(i)
The objection
as to jurisdiction was raised "right at the
first instance by the husband".
(ii) The respondent "specifically reserved his right to file
a
written reply on merits after the question of jurisdiction
was decided".
(iii) As
the respondent had "reserved his right to lead
evidence
on merits, it is not
a
case where the
husband
deliberately gave
up his
right
to
lead
evidence
on
merits .....
(iv)
There
was "obvious prejudice and failure of justice"
to
the respondent as he never led evidence on the merits.
(v) It Was necessary for the
appellant to prove that the respondent had refused and neglected to maintain her. and
that "obviously requires
an opportunity to be given
to
the husband to prove his case, if it be one, that he has
not refused or refuses
or neglected to maintain his wife
or what his income and means is".
"mm-u.
dim
1"
I
7
SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, L)
1001
'
um
,_
"W,
(vi) "Before
a decision on merits
can be given the husband
has the undoubted request
(sic)
to
lead
evidence
on
merits".
,
(vii) A proceeding cannot be entertained in a court which has
jurisdiction by simply
taking
recourse to
section
531
of the
Code, when an objection has been taken against
its maintainability, for otherwise
the provision relating
to jurisdiction would
become
nugatory.
Section
5 31
"can cure the infirmity after, the case has been fought on
merits."
"
We have examined these grounds, but we are constrained to say that
they are not tenable in the facts and} circumstances of this case.
Section 531 of the Code reads an follows,-
"531. No finding,
sentence
or order of
any Criminal
Court shall be set aside merely
on the ground that the inquiry, trial or other proceeding 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."
The section therefore
relates to
a defect of
jurisdiction.
As has
been stated by this Court in Purushottamdas Dalmia v. The State of
West Bengal(') those 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 oh the matter and any transgression
of it makes the entire trial voiid, the latter is not of
a perempfOry
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".
Sub-section (8)
of
section 488 in fact provides that proceedings under the section "may
be takem against any person in any distribt where he resides or is, or
where be 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 secti0n 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
terntorial jurisdiction,
there should,
ordinaril
,
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-
(1) [1962] 2 SCR.
101.
R
19.02
SUPREME COURT REPORTS
,
[1977] 2 S.C.R.
The first reason why the High Court has not given the benefit of
section,53l to the appellant is that an objection as to the jurisdiction
of the Delhi Court
was raised by the respondent "right at the first
instance."
Counsel for the respondent has strenuously argued that
such
a benefit will not be available in
a
case where the magistrate
knew that he had
no jurisdiction,
and persisted in proceeding with
the trial under
the» impression that section '531 of the Code, would,
at any rate, validate his
order.
That,
accOrding to the
counsel,
amounted
to
an order by the magistrate giving the jurisdiction
to
himself by virtue of section 531.
Reliance in this connection
has
been placed on Radharam' v. Rahim SardarG), Sakuntalat v. Thirumalayya(2), State v. Tavam Naika(3), Sultan Chand v.
Yogindra
Nat/z
Baz (4), and Satwant'Singh v. Smt. jaswam Kaur (5).
As is apparent, section 531 does not entitle a magistrate, who is
not a magistrate of the class referred to in sub-section (1) of section
488, to proceed with
an application for maintenance.
In fact
even
a DistriCt Magistrate,
a
Sub-Divisional Magistrate
or
a. Magistrate
of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8)
of section 488.
The true meaning of
section 531
is. that while it will not uphold an order passed in proceedings wilfully taken in
a wrong place,
or enable
a magistrate
to
confer jurisdiction
on himself when. he knows that he has
no such
jurisdiction, there is
no
reason why
a magistrate, who is otherwise
duly empowered to make an order under sub-section (1) of section
488 of the Code, cannon proceed with an application under that subsection .for the purpose of deciding whether
he
has the territorial
jurisdiction to entertain the application and to decide the application
on
the
merits if
he finds
that
he
has the territorial jurisdiction.
Section 531
cannot thus be said to be inapplicable to
a
case Where
there
is
a controversy as to the district where the proceeding should
be held, the parties lead
evidence in
support of their
respective
contention
about
the
correct
place
of
the
proceeding.
and the magistrate finds it necessary (after taking note of the entire
evidence on the controversy)
to arrive at a decision on the basis of
the balance of probabilities.
In other words, there is no reason
why.
in such
a case, section 531
should not be applicable merely because
the magistrate,
while considering
the
evidence relating
to jurisdiction, unwittingly makes a reference to section 531 in passing and not
for the purpose of assuming jurisdiction under it.
If the magistrate.
in this case, had thought of assuming jurisdiction under section 531.
he would not have proceeded to record the evidence of the parties,
on the question of the territorial jurisdiction, or referred to it at length
in his order and arrived at the decision that he had the jurisdiction.
We have
gone through the
cases which have been cited by the
counsel for the respondent.
Radharani and another v. Rahim Saidar
(supra)
was
a
case where the magistrate proceeded with the trial
(1) A.t.RIT§467:Zicutta 459.
(2) (1966)
2 M.L.J.
326.
G3) A.I.R.
1959 Mysore
193.
(4) A-I-R- 1944 Peshawar
25.
(5) (1956) A.L.J. 134.
SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, J.)
1003
in the wrong local area with his eyes open to the fact that he had no
territorial jurisdiction,
and
the Calcutta High Court had
to
observe
that the section does not confer any jurisdiction.
This is however not
So in the present case, because the Magistrate recorded the evidence
on the question of territorial jurisdiction, and he went to the extent of
making a reference to the entire evidence which was led on the point.
Moreover he took note of the fact that the respondent had not, specifically dened
that
he lived
at village Lampur
with
the appellant.
This is therefore not
a case. where the Magistrate proceeded with the
application
even though
he had the knowledge
that it did
not fall
within his jurisdiction.
The
same
is
the position
in
regard
to
Sakuntala v. Thirumalayya (supra)
and it also cannot avail the
respondent.
We have gone through
State
v.
Tavara Naika
(supra).
It was not a case under section 488 of the Code.
What has been said
there is that the curative provisions of section 531
should not be
an
excuse for overlooking
a material irregularity pertaining
to jurisdiction when it is brought to the notice of the Court before the
cornmencement of
the
trial.
It
does
not
therefore lay
down anything
different from what has been stated in
Rad/761111111.
v. Rahim
Sardar
(supra).
It was a case where the accused was committed to
a wrong
sessions division, and the mistake was corrected because the trial had
not commenced.
Sultan
Chand
&
another
v.
Yogindra
Nat/z
Ba;
(supra)
was also not a
case under section 488 of the Code.
It has
een held in that case that when the question of jurisdiction has been
raised before the trial magistrate, it is his duty to determine the point,
otherwise the provisions
as regards jurisdiction would
never
be
en~
forced and that section 531
cannot be applied to such
a
case.
As
has been stated, the Magistrate in the present
case addressed himself
to the question of jurisdiction, recorded detailed evidence
on it,
considered the evidence in his order and reached the conclusion that the
application
was
maintainable
in
his
court.
This
is
therefore
a
difierent
case.
Satwant Singh
v. Smt; Jaswant Kaur (supra)
was
a
case under
section 488 of the Code.
It
has been held there that
where the question of jurisdiction had
been raised before
the trial
magistrate, it
was his duty to determine the point, and that he
can~
not proceed with the trial in
a wrong local area with his eyes open
to the fact that he has no territorial jurisdiction.
As has been shown,
this was not
so in the present
case.
It would thus appear that the
High Court erred in taking the View that section 531 would not be
applicable
to- this
case merely
because an objection
as
to jurisdiction
was raised by the respondent "right at the first instance."
The second ground mentioned by the High Court is that section
531 would not be applicable because the respondent had specifically
reserved his right to file a written reply on merits after the question
of jurisdiction had been decided.
We find that this is clearly a
misstatement of the facts, for counsel for the respondent
was not able
to refer to anything on the record to show that the respondent reserved
any such right to file
a written reply on the merits
at
a later stage,
after the question of jurisdiction
was decidedagainst him.
On the
other hand,
we find that the Magistrate
specifically overruled
the
objection of the respondent, and made an order directing the parties
to addutre their evidence on the whole
case and specifically rejected
16-206SCI/77
1,004
SUPREME COURT REPORTS
[1977] 2 S.C.R.
the respondent's application for deciding the question of jurisdiction
in the first instance.
The Magistrate has clearly stated that an order
was made by him for the production of evidence "in the case", and
that he decided to defer a
decision of the question of jurisdiction
until after the evidence had been recorded
as
a whole.
The Magistrate has further stated that the respondent did not file his further or
additional reply
even then.
The High Court
therefore undoubtedly
erred in thinking that the respondentrspecifically reserved
his right
to file
a written reply on the merits later
on.
As has been shown,
no such reservation was permitted by the magistrate, and counsel for
the respondent was not able to show how the respondent could unilaterally make such
a reservation for himself.
It may be that,
in
a
given case, it may be advisable for
a magistrate to confine
the
evidence of the parties, in the first instance, to any preliminary objection
relating to jurisdiction, and to decide the controversy
on the
merits
thereafter, but as this was not so in the present case,
we
are unable
to find any
justification for the
second ground mentioned by
the
High Court.
The third ground of the High Court is also untenable, for it has
refused to apply section 531 on the ground of prejudice for the reason
that the respondent had reserved his right
to lead evidence
on
th
merits and did not deliberately give up
that
right.
Here
agai
.
counsel for the respondent was unable to show how it could be said
that the respondent made any such reservation,
or was entitled
to it
when,
as has been stated, the Magistrate had rejected his application
for deciding the question of jurisdiction as a preliminary question and
had passed
an order for the production of all the
evidence in
the
case.
If therefore the respondent persisted in refusing to produce his
evidence in spite of that order of the Magistrate,
he alone
was
to
blame for it, and the High Court erred in taking the view that he had
reserved the right to lead evidence at a later stage.
The High Court has taken the View that this is
a
case
where
there
was obvious prejudice to the respondent and a failure of justice
as he never led evidence
on the merits.
But the High Court failed
to appreciate that the respondent had to thank himself for that predicament.
He knew that the Magistrate had passed an order refusing
to try the question of jurisdiction in the first instance and had rejected
his application to that effect.
He also knew that the Magistrate had
called upon the parties to lead
all their
evidence.
The
appellant
obeyed that order and
examined her
witnesses.
The
respondent
persisted in thinking that, the Magistrate had
no jurisdiction, and
he
refused to examine the witnesses
on the merits
and thought it suffi~
cient
to. confine his evidence to
the question of jurisdiction.
So
it"
he deliberately refrained from producing his evidence
on the merits,
there can be no justification for him to raise the question of prejudice
or failure of justice.
AS it is, Counsel for the respondent has
not
been able to refer to any application of the respondent, whether oral
or documentary, expressing
a
desire
to lead his
evidence
on
the
merits.
The fact of the matter therefore is that the respondent had
decided that he would not lead any evidence on the merits, and confined his evidence to the question of jurisdiction.
It may be that,
as
mm
in.
m'
SMT.
RAJ KUMARI v. DEV RAJ (Shinghal, J.)
1005
has been argued by the Counsel for the appellant, he did
so because
he realised that he had no defence to make on the merits of the claim
for maintenance.
The fifth ground mentioned by the High Court is that before
an
order could be passed under
section 488(1) it
was necessary
to
prove that the husband had refused or neglected to maintain his wife,
and that required an opportunity to be given to the husband
to prove
his case.
But the argument is futile because the respondent did not
set up any defence on the merits.
On the other hand, the Magistrate
found that there was no controversy about the facts that the appellant
was the lawfully wedded wife of the
respondent and that she
had
been living separately for the last many years
and
was entitled
to
maintenance
as the respondent had neglected her
or had refused to
maintain her.
In its sixth ground the High Court has stated that before
a decision could be given on the merits, the husband could make a request
for permission to lead evidence on merits.
It would be sufficient to
say that Counsel for the respondent
was unable
to point
out when
and how any such request was made but was refused by the Magistrate.
Lastly, the High Court has taken the view that a proceeding cannot be maintained by
a
court which has
no jurisdiction by simply
taking recourse to section 531 of the Code when
an objection
has
been taken against its maintenance, for otherwise the provision relating to jurisdiction wotuld become nugatory.
This point has already
been considered earlier and need not be re-examined.
It is thus quite clear that the High Court
committed
a serious
error of law in refusing to invoke section 531 in the facts and circumstances of this case.
It is not in controversy that the Magistrate
who took the proceedings,
on the appellant's application under
subsection (1) of section 488,
was
one of the magistrates mentioned in
that sub-section.
The respondent raised
a controversy as to his local
jurisdiction,
and the Magistrate ordered the parties
to lead
all their
evidence.
He specifically rejected
the application for confining the
evidence to the question of jurisdiction, or to try that as a preliminary
issue.
It is therefore futile to contend that the Magistrate gave himself jurisdiction by recourse to section
531
of the Code.
On
the
other hand in his final order, he set out the points which arose for
consideration on the question of
jurisdiction, made
a mention,
at
length, of the entire evidence
on that question and took into consi~
deration the conduct of the respondent and the
case law
as well
as
the respondent's reply.
All that led him
to the conclusion that
he
had jurisdiction to try the application.
There is therefore no_ reason
why section
531
should
not be held
to be applicable
to this
case.
As
has been shown, it is futile for Counsel for the respondent
to
raise the question of prejudice, or to say that there
was
a failure of
justice,
because
the respondent did
not lend
his
evidence on
the
merits.
As
we have pointed out,
he
did
'so deliberately
and
in
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1,006
SUPREME COURT REPORTS
[1977] 2 S._C.R.
defiance of the order of the Magistrate calling upon him to lead his
evidence on the whole case.
The respondent cannot in fact be heard
to raise the question of prejudice when
on
the uncontroverted
and
well established facts the Magistrate found that the respondent
was
a person who had sufficient means and had neglected to maintain his
wife, and -made
an order that he shall make
a monthly allowance of
Rs.'125/- per
mensem for her maintenance.
The appeal is allowed and the impugned order of the High Court
dated March 14, 1974, is
set aside, with costs.
P.B.Rt
\
Appeal allowed.