# S!rvamlat v. State of U~ P

- **Citation:** [1964] 2 S.C.R. 73
- **Court:** Supreme Court of India
- **Decided:** 1961-05-22
- **Bench:** K. SuBnA RAo, Raghubar Dayal, J. R. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-rvamlat-v-state-of-u-p-2957
- **Pages:** 14

## Headnote

Maintenance of Wives and children-Construction of stat!tte
-JurisdicHon of the
Magistrate
lo
entertain
pet,itionIf a -mixed question of frict and law-If can be raised for the
jirst t·ime before this Court-Code of Criminal Procedur«, 1898
(Act 5 of 1898), ss. 2(1), 488(8).
The respondent who was born in the Ludhiana District
wa• married ro the first appellant,
He took up a job in Africa
and after staying there for some time he ca1ne to India and
stayed with his wife for 5 months.
He then went to i\frica an,d
after staying there for 5 or 6 years came to India and took the
appellant with hiin to Africa and a daughter was born to them
there. 'fhe appellant was sent back \Vith the child and she was
staying in the District of l,udhiana \vi.th the child.
It is admitted
that the respondent had bought
property
worth
Rs. 25,000,'- in that District and that the petition for maintenance \Vas filed by the appellant and the notice was served on him
while the respondent V\·as in that District. The respondent
filed a. counter affidavit, obtained exemption fron1
personal
appearance at the thne of hearing of that r~tition and thereafter left for Africa.
1963
S!rvamlat ..
v.
State of U~ P . .
Raghubar Dr1)'al J.
1963
February /3,
1963
Jagir Kaur
v.
Jaswant Singh
74
SUPREME COURT REPORTS [1964] VOL.
The !st Class Magistrate Ludhiana held that he had
jurisdiction to entertain the petition filed by the appellant
under s. 488 of the Code of Criminal Procedure, 1898, as the
appellant and the respondent had last resided in the District
Ludhiana.
He awarded for the wife's maintenance at the rate
of Rs. JOO/- per month and fur the daughter at the rate of
Rs. 50/· per month. A revision petition filed by the respondent
before the Additional Sessions Judge was rejected. But the
High Court holding that the !st Class Magistrate had no juris·
diction to entertain the petition allowed the 1 evision petition
filed by the respondent. The present appeal is by way of special
leave granted by this Court.
The main contention
on
behalf of the appellants
before this Court was that the respondent
having last
resided with his wife in the
District of Ludhiana and he
having been there at the time when the petition under s. 488
was presented the Magistrate had jurisdiction to entertain
the petition. It was further contended that the respondent
having subniitted to the jurisdiction of the Magistrate «>uld
not question his jurisdiction.
Held, that Ch. XXVI of the Code of Criminal Procedure
providing for maintenance of wife and children intends to serve
a social purpose.
Section 488 prescribes alternative forums to
enable a deserted wife or a helple<S child, legitimate ur illegiti·
mate to get urgent relief.
Proceedings under the section can
be taken against the husband or the father as the case mJ.y be,
in a place \.Vhere he resides permanently or ten1porari1:1, or
where he last resided in any District in India. or where he
happens to be at the time the proceeding; are iuitiated. The
expression "residesll implied something more than a brief
visit but nut such continuity as to amount t;, domicile.
Sampoornam v. N. Samlarani, (1952) 2 :VI. L.J. 573,
referred to.
A casual or flying visit to a place for a ternpor.>ry purpose was not covered hy the word residence.
Khair-unnirsa
v. Bashir Ahmad, ( 1929) LL. R. 53 Born.
781, F/nwers v. FltYll'ers, (1910) l. L. R. 32 All.
203 and
Balakri"hna v.
Sriknntq/11.
Brii,
A. I. R. 1942 :Vfad. 666.
referred to.
The soie test on the qne~tion of residence ,v.1s whet!te1 a
party had anl1nn8 1uane11di or an intention to stay for an in.
definite period at the place.
2S.C.R.
SUPREME COURT REPORTS
75
Charan Das v. Surasti Bai, A. I. R. 194-0 Lah. 449
referred to.
The appellant not having raised the plea of submission
to jurisdiction either in the pleadings or in any of the courts
below will not in the absence of special circumstances be
allowed to raise it before this Court.
Where a legislaturo has no power to make laws in respect
of any territory

## Text

-
2 S.C.R.
SUPREME COURT REPORTS
73
offence under s. 121 of the Act but makes out an
offence under s. 50(] I. P. C.
I would
therefore
alter the conviction of the appellant for an offence
under s. 121 of the Act to one under s. 50(] I. P. C.,
and maintain the sentence of Rs. 60/- fine in default
of payment of which he wot1ld
undergo rigorous
imprisonment for two m0nths.
Appeal dismissed.
JAGIR KAUR & ANOTHER
v.
JASWANT SINGH
(K. SuBnA RAo, RAGHUBAR DAYAL, and
J. R. MunHOLKAR JJ.)
Maintenance of Wives and children-Construction of stat!tte
-JurisdicHon of the
Magistrate
lo
entertain
pet,itionIf a -mixed question of frict and law-If can be raised for the
jirst t·ime before this Court-Code of Criminal Procedur«, 1898
(Act 5 of 1898), ss. 2(1), 488(8).
The respondent who was born in the Ludhiana District
wa• married ro the first appellant,
He took up a job in Africa
and after staying there for some time he ca1ne to India and
stayed with his wife for 5 months.
He then went to i\frica an,d
after staying there for 5 or 6 years came to India and took the
appellant with hiin to Africa and a daughter was born to them
there. 'fhe appellant was sent back \Vith the child and she was
staying in the District of l,udhiana \vi.th the child.
It is admitted
that the respondent had bought
property
worth
Rs. 25,000,'- in that District and that the petition for maintenance \Vas filed by the appellant and the notice was served on him
while the respondent V\·as in that District. The respondent
filed a. counter affidavit, obtained exemption fron1
personal
appearance at the thne of hearing of that r~tition and thereafter left for Africa.
1963
S!rvamlat ..
v.
State of U~ P . .
Raghubar Dr1)'al J.
1963
February /3,
1963
Jagir Kaur
v.
Jaswant Singh
74
SUPREME COURT REPORTS [1964] VOL.
The !st Class Magistrate Ludhiana held that he had
jurisdiction to entertain the petition filed by the appellant
under s. 488 of the Code of Criminal Procedure, 1898, as the
appellant and the respondent had last resided in the District
Ludhiana.
He awarded for the wife's maintenance at the rate
of Rs. JOO/- per month and fur the daughter at the rate of
Rs. 50/· per month. A revision petition filed by the respondent
before the Additional Sessions Judge was rejected. But the
High Court holding that the !st Class Magistrate had no juris·
diction to entertain the petition allowed the 1 evision petition
filed by the respondent. The present appeal is by way of special
leave granted by this Court.
The main contention
on
behalf of the appellants
before this Court was that the respondent
having last
resided with his wife in the
District of Ludhiana and he
having been there at the time when the petition under s. 488
was presented the Magistrate had jurisdiction to entertain
the petition. It was further contended that the respondent
having subniitted to the jurisdiction of the Magistrate «>uld
not question his jurisdiction.
Held, that Ch. XXVI of the Code of Criminal Procedure
providing for maintenance of wife and children intends to serve
a social purpose.
Section 488 prescribes alternative forums to
enable a deserted wife or a helple<S child, legitimate ur illegiti·
mate to get urgent relief.
Proceedings under the section can
be taken against the husband or the father as the case mJ.y be,
in a place \.Vhere he resides permanently or ten1porari1:1, or
where he last resided in any District in India. or where he
happens to be at the time the proceeding; are iuitiated. The
expression "residesll implied something more than a brief
visit but nut such continuity as to amount t;, domicile.
Sampoornam v. N. Samlarani, (1952) 2 :VI. L.J. 573,
referred to.
A casual or flying visit to a place for a ternpor.>ry purpose was not covered hy the word residence.
Khair-unnirsa
v. Bashir Ahmad, ( 1929) LL. R. 53 Born.
781, F/nwers v. FltYll'ers, (1910) l. L. R. 32 All.
203 and
Balakri"hna v.
Sriknntq/11.
Brii,
A. I. R. 1942 :Vfad. 666.
referred to.
The soie test on the qne~tion of residence ,v.1s whet!te1 a
party had anl1nn8 1uane11di or an intention to stay for an in.
definite period at the place.
2S.C.R.
SUPREME COURT REPORTS
75
Charan Das v. Surasti Bai, A. I. R. 194-0 Lah. 449
referred to.
The appellant not having raised the plea of submission
to jurisdiction either in the pleadings or in any of the courts
below will not in the absence of special circumstances be
allowed to raise it before this Court.
Where a legislaturo has no power to make laws in respect
of any territory the operation of the law made by it cannot
extend to that territory.
The facts and circum,tances of the case show that the
respondent last resided with his wife in a place within the
jurisdiction of the First Class Magistrate, Ludhiana, and that
he was in a place within the jurisdiction of the Magistrate on
the date when the appellant filed her application for maintenance against him.
In re Drucker (No. 2) Basden, Ex Parte, [1902] 2 K. B.
210 referred to.
CRIMINAJ. APPELLATE JURISDICTION: Criminal
Appeal No. 143 of 1961.
Appeal by special leave from the judgment and
order dated May 22, 1961, of the Punjab High
Court, Chandigarh in Criminal Revision No. 1448
of 1960.
S. K. Kapur, for the appellants.
H arnam Singh Chadha and Harbans Singh,
for the respondent.
1963.
February 13.
The Judgment of the
Court was delivered by
SuBBA RAO .J.-This appeal by special leave
raises the question of true construction of s. 488(8)
of the Code of Criminal Procedure .
.Jagir Kaur, the first wife of .Jaswant Singh,
was married to him in HJ30. The said Jaswant Singh
1963
Jagir Kaur
v.
Jaswant Singh
Sttbba Rao J,
1963
/'1.f:.ir f;a!Jr
v.
)O!l/"0'-l Si'l.E!·~
>
76
SUPREME COURT REPORTS [1964.] VOL.
was employed in the police force in Africa.
The
1~/n/d(twr1 ceremony took place about 7 years after the
man-iage, when the respondent was away in Africa.
Thereafter, the first
appcll~nt was taken
to her
mother-in.law's house, and after living there for a
fow years she returned to her parental house.
5 or Ii
years thereafter, J as want Singh came to India on
5 months' leave and the couple lived in Jaswant
Singh's or his mother's house at Hans Kalan-it is
not clear to whom the house belongs--for a period
of 5 months and thereafter Jaswant Singh left for
Africa.
Before going to
Africa, Jaswant Singh
married another wife and took her with him to
Africa.
After 5 or 6 vears, he came back to India
on leave and took
0
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
monev for her maintenance but did not do rn.
In
the y~ar l!lGO, he came back to India. It is also in
evidence that he had purchased property in Ludhiana
District for Rs. 2ii,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 Rs. 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 the said Court ha~ no
jurisdiction on the ground that he nt'vcr resided
within its district nor did he last reside with the first
appellant in any place within its j111is<liction.
The
learned Magistrate held that the petitioner-appellant
was the wife of the respondent and that thr Court
had jurisdiction to entertain the petition as the
-
,
2 S.C.R.
SUPREME cotJ:R t REPOR ts
77
husband and wife last resided together in the District
of Ludhiana. On the merits, he held that the first
wife and her daughter were entitled to maintenance
and awarded for the wife maintenance at the rate
of Rs. 100/- per month and for. the daughter at the
rate of Rs. 50/- per month.
The respondent preferred a revision against that order to the Additional
Sessions Judge, Ludhiana, and the learned Additional Sessions Judge, agreed with the learned 1\1? gistrate both on the question of jurisdiction and also on
the right to maintenance and dismissed the revision.
The husband preferred a revision to the High Court
of Punjab against that order. The High Court disagreed with both the lower Courts on the question
of jurisdiction. It held that the husband's permanent home was Africa and his two visits to Ludhiana
for temporary periods did not make him one who
resided in that distrJct or who last resided with his
wife therein. On that view, it set aside the order of
the learned Additional Sessions Judge and dismissed
the petition.
Hence the present appeal.
Mr. Kapur, learned counsel for the appellants,
contended that the respondent had last resided with
his wife in his house in village Hans Kalan in the
District of Ludhiana and was also in the said District
at the time the application under s. 488 of the Code
of Criminal Procedure was filed by the first appellant and, therefore, the learned
Magistrate had
territorial jurisdiction to entertain the application.
In any view, he argued, the respondent submitted to
the jurisdiction of the Magistrate and, therefore, he
could no longer question the validity of his order on
the ground of want of jurisdiction. On the other
hand, the learned counsel for the respondent sought
to sustain the order of the High Court for the reasons
mentioned therein.
At the outset we
must say that the first
appellant did not
raise the plea of submission
1963
Jagir Kaur
••
Jaswan~ Singh
Subba Rao J.
1963
Ja;:Jr Kau•
v.
Jaiwmt Si,,~h
Suloba llafJ J.
78
SUPREME COUllT RlPORTS [1964] VOL.
either in the pleadings or in any of the three Courts
below.
The question is a mixed question of fact and
law.
Tllis Court will nut ordinarily allow ;uch
questions to be raised for the first time before it
and we do not sec in this case any exceptional
circumstances to
depart from
that practice. We
cannot therefore, permit the first appellant to raise
this belated pica.
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. 481>(8) of the
Court, which demarcates the jurisdictional 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.".
The crucial words of the sub.section arc, "resides",
"is" and "where he last resided with his
wife".
Under the Code of 1882 the Magistrate of the
District where the husband or father, as the case may
be, resided only had jurisdiction.
~ow 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 proceedings; the remedy is a summary one
and the person seeking that
re~edy, as we have
pointed out, is ordinarily a helplC!>S person. So, the
words should be liberally construed without doing
any violence to the language.
'
-
2 S.C.k.
SUPREME COURT REPOR.ts
79
The first word is "resides". A wife can file
a petition against her husband for maintenance in a
Court in the District where he resides. The said
word has been subject to conflicting judicial opinion.
In the Oxford Dictionary it is defined as : "dwell
permanently or for a considerable time; to have one's
settled or usual abode ; to live in or at a particular
place".
The said meaning, therefore, takes in
both a permanent dwelling as well as a temporary
living in a place. It is, therefore, capable of different
meanings, including domicile in the strictest and the
most technical sense and a temporary residence.
Whichever meaning is given to
it, one thing is .
obvious and it is tliat it does not include a causal
stay in, or a flying visit to, a particular place. In
short, the meaning of the word would, in the ultimate analysis, depend upon the context and the
purpose of a particular statute. In this case the context
and purpose of the present statute certainly do not
compel the importation of the concept of domicile in
its technical sense.
The purpose of the statute would
be better served if the word "resides" was understood to include temporary residence.
The j uxtaposition of the words "is" and "last resided" in the
sub-section also throws light on the meaning of the
word "resides". The word "is", as we shall explain
later, confers jurisdiction on a Court on the basis of
a causal visit and the expression "last resided",
about which also we have something to say, indicates that the Legislature could not have intended
to use the word "resides" in the technical sense of
domicile.
The word
"resides" cannot be given a
meaning different from the word "resided" in the ex·
pression "last resided" and, therefore, the wider meaning fits in the setting in which the word . "resides''
appears.
A few of the decisions cited at the Bar
may be useful in this context.
In Sampoornam, v. N. Sundaresan ('),it was held
tliat the word "resides" implied something more than
(I) (1952) 2 M.LJ, 573,
1963
Jagir .Kaur
v.
JaJwant Sin:h
Subba Rao J.
1963
Jagir Kaur
v.
JaJW!l'll .)'in.:;h
Subba Ra(I J.
80
SUPREMI<: COURt RtPORTS [1964] VOt.
a brief visit but not such continuity as to amount
lo a domicile.
In /Ou•irunis.sa v. JJrishir Ahmed('),
Oil a consideration of the rclevanl au1horities, it was
pointtd oul that a casual or a flying visit to a place
was excluded from the scope of the won] "resides".
A full
Bench of the Allahabad High Court, in
Fl01cers v. Flowers ('), 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 Balu.l.:rishnrt v.
Sak1111ta1!1 Uai (3), it was held that the expression
"residr" implied something more than ''stay" and
implied some intention to remain at a place and
not merely to pay it a casual visit.
In Chrimn Das
v. Surasti'. /Jai ('), it was held that the sole test on
the question of residence was whether a party had
<mirmtS numendi, or an intention to stay for an indefinite period, at one place; and if 1i,, had such an
intention, then alone could he be said to "reside"
there.
The decisions on the subject arc legion and it
would be futile to survey the entire field.
Generally
stated no decision goes so far a~ to hold 1.hat "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 casual stay in a particular place.
They agree
that there shall be anim.us manendi or an intention
to stay for a period, the length of the period depending upon the circumstances of each case.
Having
regard
to the object sought to be achieved, the
meaning implicit in the words used, and the construction placed by decided cases thereon, we would
define the word "resides" thus : a person resides in
a place if he through choice makes it his abode
permanently or even temporarily ; whether a person
has chosen lo make a particular place his abode
depends upon the facts of each case.
Some illustrations may make our meaning clear: (i) A, living in
(1) (1929) I.L.R. 53 Bom. 781.
(2) (191 0) J.L.R. 32 All. 203.
13) A.I.R. 1~2 Mad. 666.
(4) A.l.R, J~O Lab. 449.
-
2 S.C.R.
SUPllEME COURT REPORTS
81
a village, goes to a nearby town B to attend a marri·
age or to make purchases and stays there in a hotel
for a day or two.
(2) A. a tourist, goes from place
to place during his peregrinations and stays for a
few days in each of the places he visits,
(3) A, a
resident of a village, who is suffering from a chronic
disease, goes along with his wife to a to WR for medical treatment, takes a house and lives there for about
6 months. ( 4) A, a permanent resident of a town,
goes to a city for higher educ'ltion, takes a house
and lives there, alone or with his wife, to complete
his studies.
In the first two cases, A makes only a
flying visit and he has no intention to live either
permanently or temporarily in the places he visits.
It cannot, therefore, be said that he "resides" in the
places he visits.
In the last two illustrations, though
A has a permanent house elsewhere, he has a clear
intention or animus rrw,nendi to make the places
where he has gone for medical relief in one and
studies in the other, his temporary abode or residence.
In the last two cases it can be said that
though he is not a domicile of those places, he
"resides" in those places.
The cognate expression "last resided" tak<>s colour from the word "resides" used earlier in the sub-section. The same meaning should be given to the word
"resides" and the word "resided'', that is to say, if the
word "resides" includes temporary residence, the expression "last resided" means the place where the person had his last temporary residence. But it is said that
even on that assumption, the expression can on! y
denote the last residence of the person with his wife
in any part of the world and that it is not confiRed to
his last residence in any part of India. If the words
"where 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
1969
Jagir KatJr
v •
. 'aswaa.t -~inzh
fu/Jha Roo J
19'3
Jngir Kaur
v.
}aJUIQllt Singh
S•bba R., J.
82
SUPREME COURT REPORTS [1964] Vot.
Code of Criminal Procedure.
Sectiun 2 (I) of the
Code extends the operation of the Code to the wholi:
of India except the States of J ammu & Kashmir; that
is to say, the provisions of the CuJe, including
s. 488 (8) thereof, have operation only throughout
the territory of India, exctpt the Stato: of jammu
& Kashm~r. 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 terri·
tories of India. It cannot obviously mean his residing
with
her in a 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.
In In re Drucker (No. 2) Basden, E:c Parle('),
the words "or in any other place out of England,"
in sub-s. (ti) of s. 27 of the Bankruptcy Act, 1883,
fell to be construed.
The word~ were wide rr:0ugh
to enable a Court in England to order that any
prrson who, if in England, would !Jc liable to be
brought before
it under
the
section,
shall
be examined in any place out of England, including
a place not within the jurisdiction of the British
Crown.
The Court held that the words must be
read with some
limitation and the jurisdiction
conferred by that section does not extend to places
abroad which are not within the jurisdiction of the
British Crown. Wright, J., rejecting the wider construction sought to be placed on the said words,
observed at p. 21 l :
"It seems to me that that restriction in prima
Jac;e
necessary.
It is impossible to suppose
that the Legislature intended to empower the
Court to order the examination of persons in
(I) (1902] 2 K.B. 210.
•
-
-
-
2 s.c.R.
SUPREME COURT REPORTS
83
foreign countries ; for instance, in France or
Germany."
In Halsbury's Laws of England, Vol. 36, 3rd edn.,
at p. 4211, it is stated :
" ...... the presumption is said to be that Parliament is concerned with all conduct taking place
within the territory or territories for which it is
legislating in the particular instance, and with
no other conduct. In other words, the extent
of a statute, and the limits of its application,
are prim.a f acie the same."
It may be mentioned that the said observations are
made in the context of Parliament making a law in
respect of a part of the territory under its legislative
jurisdiction. If it has no power at all to make a law
in respect of any foreign territory, the operation of
the law made by it cannot obviously extend to a
country over which it has no legislative control. It
is, therefore, clear that s. 488(8) of the Code, when
it speaks of a district where a person last resided
with his wife, can only mean "where he last resided
with his wife in any district in India other than
Jammu & Kashmir."
The third expression is the word "is". It is
inserted between the words "resides" and
"last
resided". The word,
therefore, cannot be given
the same meaning as the word "resides" or the
expression "last resided" bears.
The meaning of the
word is apparent if the relevant part of the subsection is read.
It reads : "Proceedings under this
section may be taken against any person in any district where he ........................ is ......... ". The verb
"is" connotes in the context the presence or the
existence of the person in the district when the proceedings are taken. It is much wider than the word
"resides": it is not limited by the animus manendi
196J
Jagir Kt1ur
v.
Jaswant Singh
Subba Rao J.
IM3
Jagir KmJr
v.
J tmt1rtl Sinzh
SuHa R"' J.
84
SUPREME COURT REPORTS [1964] VOL.
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
ca~cs. Manv illustrations can be
visualized where the utility' of that provision can
easily be demonstrated.
To summarize : Chapter XXXVI of the Code
of Criminal Procedure providing for maintenance of
wives and children intends to serve a social purpose.
Section 488 prescribes alternative forums to enable
a deserted wife or a helpless child, legitimate or
illegitimate, to get urgent relief.
Proceedings under
the section can be taken against the husband or the
father, as the case may be, in a place where he resides, permanently or temporarily, or where he last
resided in any district in India or where he happens
to be at the time the proceedings are initiated.
Let us now apply the said principles to the
instant case. To recapitulate the relevant facts : the
respondent was born in India in Ludhiana District;
he was married to the first appellant in the year
1930; h'° migrated to Africa and took up a job there
1
j
..
-
-
2 S.C.R.
SUPREME COURT REPORTS
85
as a police officer; he came back to India in or about
1943 and lived with the first appellant in a house at
Hans Kalan for about 5 months and thereafter he
left again for Africa; 5 or 6 years thereafter, he again
came to India 0n leave and took her to Africa where
she gave birth to a daughter; the appellant was sent
back to India and she was staying in
Ludhiana
District with the child; the respondent's mother is
staying in the aforesaid village in the same district
and it is also not disputed that the respondent has
purchased property worth Rs. 25,000/- in Ludhiana
District in the name of his minor children by his
second wife; when the petition was filed he was admittedly in the district of Ludhiana-indeed, notice was
served on him in that district, he filed a counteraffidavit,
obtained
exemption
from
personal
appearance at the time of hearing and thereafter
left for Africa. It is not necessary in this case to
express our opinion on the question whether on the
said facts the respondent "resides" in India; but we
have no doubt that he "last resided" in India. We
have held that temporary residence with animu8
rrumendi will amount to residence within the meaning of the provisions of the sub-section. When the
respondent came to India and lived with his wife in
his or in his mother's house in village Hans Kalan,
he had a clear intention to temporarily reside with
his wife in that place. He did not go to that place
as a casual visitor in the course oi his peregrinations.
He came there with the definite purpose of living
with his 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
tl{e ap,o ell ant file<l her application for maintenance
against him. The said Magistrate had ju~isdiction
1963
Jagir liaur
••
Jaswant Singh
~·ubba Roo J.
1963
Jt1gir 1.·aur
v.
Jas1nutt Singh
S11bba R•o J.
86
SUPREME COURT REPORTS [1964] VOL.
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.
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
Rs. 100/- per month for herself and at the rate of
Rs. 50/- per month for the maintenance of her minor
child.
The Additional Sessions Judge, on a reconsideration of the evidence, accepted the finding of
the learned Magistrate and confirmed the quantum
of maintenance awarded by him.
The finding is a
concurrent findiug of fact the correctness whereof
cannot ordinarily be questioned in a revision petition
in the High Court. That is why the only question
argued before the High Court was that of j urisdiction.
A5 we have held that the view accepted by
the High Court was wrong, we srt aside the order of
the High Court and restore that of the Magistrate
First Class, Ludhiana.
In the result the appeal is allowed.
Appe11l ri/1011.-ed.