Orissa High Court
Nihar Ranjan Dash vs Smt Sunita Sarangi on 15 February, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
RPFAM NO. 119 of 2015
From the order dated 22.07.2015 of the learned Judge, Family
Court, Puri in Criminal Proceeding No. 144 of 2011.
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Nihar Ranjan Dash ......... Petitioner
-Versus-
Smt. Sunita Sarangi ......... Opp. party
For Petitioner: - In person
For Opp. party: - Mr. Mritunjay Banerjee
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 07.12.2016 Date of Judgment: 15.02.2017
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S. K. Sahoo, J.The petitioner Nihar Ranjan Dash who is the husband of the opposite party Smt. Sunita Sarangi has challenged the impugned order dated 22.07.2015 passed by the learned Judge, Family Court, Puri in Criminal Proceeding No. 144 of 2011 in rejecting the petition dated 02.02.2015 filed by the petitioner challenging the maintainability of the proceeding under section 2 125 of Cr.P.C. instituted against him by the opposite party on the ground of territorial jurisdiction.
2. It is case of the opposite party that she is the legally married wife of the petitioner and her marriage was solemnized with the petitioner on 22.11.2009 as per Hindi rites and customs at Bagala Dharmashala at Puri. At the time of marriage, as per the demand of the petitioner, cash of Rs.1,00,000/- (rupees one lakh) was given to him. The opposite party then stayed with the petitioner at Delhi where the petitioner was serving at Sriram Institute of Marine Study. It is the further case of the opposite party that the petitioner was a drunkard and keeping illicit relationship with his own maternal aunt and when she came to know about the same and protested, she was tortured physically and mentally and was not even provided with food. She was asked by the petitioner to bring Rs.5,00,000/- (rupees five lakhs only) from her father or else to search for a job for her and to pay her monthly salary to him. As she could not comply with the same, she was tortured and ousted from the house of the petitioner at New Delhi on 22.02.2010 and since then the opposite party came to reside at the village house of her father at Biswanathpur in Puri. The father and other family members of the opposite party several times approached the petitioner and 3 his parents to take her back but they paid deaf ear to the request made.
3. It is the case of the opposite party that the application under section 125 of Cr.P.C. was filed by her before the learned Judge, Family Court, Puri while she was staying at her native village Biswanathpur in the district of Puri in the year 2011. Due to non-appearance of the petitioner at the time of hearing in the maintenance proceeding, he was set ex-parte on 03.05.2012 and ex-parte judgment was pronounced on 07.07.2012 directing the petitioner to pay maintenance to the opposite party from the date of filing of the petition.
The petitioner filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights before the Principal Judge, Family Court, Saket, New Delhi which was registered as H.M.A. No. 250 of 2012 wherein the first address of the opposite party was mentioned at Biswanathpur which is the under of territorial jurisdiction of the Family Court, Puri. The opposite party filed a transfer petition before the Hon'ble Supreme Court which was registered as Transfer Petition (c) No. 1119 of 2012 for transfer of H.M.A. No. 250 of 2012 titled as 'Nihar Ranjan Dash -Vrs.- Sunita Sarangi' pending before Family Court, Saket, New Delhi to the Family Court at Puri, Odisha and 4 the transfer petition was allowed vide order dated 11.02.2013. After such order of transfer by the Hon'ble Supreme Court, the case was registered as C.P. No.29 of 2013 in the Court of learned Judge, Family Court, Puri. The petition for restitution of conjugal rights filed by the petitioner was ultimately dismissed by the learned Judge, Family Court, Puri vide order dated 22.11.2014.
The opposite party filed Execution Case No. 210 of 2012 for recovery of arrear maintenance dues from the petitioner. The petitioner filed a petition under section 126 (2) of Cr.P.C. to set aside the ex parte order of maintenance before the learned Judge, Family Court, Puri which was registered as Criminal Proceeding No. 228 of 2012 and vide order dated 17.11.2014, the ex-parte order of maintenance was set aside and Criminal Proceeding No. 144 of 2011 was restored to the status as on 03.05.2012.
4. The petitioner filed a petition on 02.02.2015 before the learned Judge, Family Court, Puri challenging therein that the application filed by the opposite party under section 125 of Cr.P.C. in Criminal Proceeding No.144 of 2011 is not maintainable on the point of territorial jurisdiction and prayed to dismiss the same.
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The learned Judge, Family Court, Puri vide impugned order has been pleased to hold that since the opposite party-wife is residing at Biswanathpur before filing of the case which comes within his territorial jurisdiction and the petitioner has failed to substantiate his plea that prior to filing of the case, the opposite party-wife was not residing at Biswanathpur, the contention raised by the petitioner was not tenable in the eye of law and accordingly the petition was rejected.
5. The petitioner has argued his case in person and submitted his written note of submission along with citations. According to the petitioner, on 22.11.2009 the marriage between him and the opposite party was solemnized at Bagala Dharmashala, Puri in accordance with Hindu rites and customs in presence of the family members, friends and relations but after marriage, the opposite party turned down the petitioner's request for cohabitation. On 30.11.2009 both petitioner and opposite party reached at Delhi at the residence of the petitioner and within days of reaching at Delhi, the opposite party demanded to visit her parents at Jeypore on the pretext of appearing the mid-term examination of M.Com. On 12.12.2009 the opposite party went to her father's place at Jeypore from Delhi and AC 3-tier ticket was booked by the petitioner for her 6 and a cash of Rs.5,000/- was also given to her on her demand. On 05.02.2010 after a long stay of almost two months, the opposite party returned back to Delhi where the petitioner was residing and stayed there till 16th March 2010. She continued to turn down the request of the petitioner for cohabitation and thereby debarred him from conjugal rights. On 16.03.2010 the opposite party again went to her father's place at Jeypore, Odisha on the pretext of appearing the final M.Com examination and AC 3-tier ticket was booked by the petitioner for her and cash of Rs.15,000/- was given to her on her demand. It was contended that since then the opposite party did not return back voluntarily and deserted the petitioner and started demanding money from him. In July 2010, the opposite party appeared in M.Com final examination in Vikramdev Autonomous College, Jeypore. In September 2010, the father of opposite party came alone to Delhi and stayed in the house of another person & borrowed Rs.1,00,000/- (rupees one lakh) from the petitioner which the petitioner gave him borrowing from his maternal uncle. The father of opposite party promised to send back the opposite party in the month of October 2010 but without honouring his promise, the opposite party & her parents started demanding another Rs.5,00,000/- (rupees five lakhs only) from the petitioner. When the petitioner expressed his inability to 7 arrange such a huge amount, the opposite party, her parents and brother started abusing & threatened the petitioner and his mother who was a heart patient with dire consequences. In November 2010, the mother of the petitioner came to Delhi for her health checkups & stayed there for four months. During the said period, the petitioner & his mother both requested the opposite Party & her parents several times to send her back to the matrimonial home, however, the opposite party & her parents paid deaf ear to the such requests and kept on demanding Rs.5,00,000/- (rupees five lakhs only). In February 2011, the opposite party with her parents and brother came to Delhi to attend devotee congregation of Nilachal Saraswat Sangh, Puri & in the absence of the petitioner, the opposite party came to his rented accommodation, deceptively defrauded her mother-in-law & took away all the gold jewellery kept in the house and returned to her brother who was staying at Jamshedpur, Jharkhand & since then she is residing there.
It is contended by the petitioner that Criminal Proceeding No.144 of 2011 for maintenance was filed with false, frivolous & serious imputations and that the Family Court, Puri has no jurisdiction to entertain such case as per law. In October 2011, the opposite party received first notice sent by the 8 petitioner at her Jamshedpur address. The petitioner appeared in the maintenance proceeding and filed written statement & attended the Court proceedings but he met with an accident on 27th January, 2012 for which he had undergone major surgery at AIIMS, New Delhi & was bed ridden for almost a year. In February 2012, a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by the petitioner before Principal Judge, Family Court, Saket, New Delhi and on 30.04.2012 opposite party received the notice at M 57/5, Telco Colony, Jamshedpur, where she was residing. The notice sent to her in Biswanathpur address returned back with a detailed report that she was not residing at the village Biswanathpur since a prolonged period. On 07.07.2012 despite the prayer of adjournment by the petitioner on health ground, the learned Judge, Family Court, Puri passed an ex parte order in Criminal Proceeding No. 144 of 2011. On 04.10.2012 a petition under section 126(2) of Cr.P.C. was filed by the petitioner to set aside the ex parte order which was numbered as Criminal Proceeding No. 228 of 2012. On 17.11.2014 the petition i.e. Criminal Proceeding No. 228 of 2012 filed by the petitioner was allowed and the ex parte order was set aside with a cost of Rs.2,000/- which was paid on the same day & Criminal Proceeding No. 144 of 2011 was restored.
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The petitioner submitted that the jurisdiction of a Court to entertain an application under section 125 of Cr.P.C. is not conferred by the place of marriage but to the place where either of the spouses resides and in section 126(1) of Cr.P.C., place of marriage does not have any relevancy in adjudicating the jurisdiction. He further contended that there is absolutely no evidence as to for what period and with whom the opposite party resided in village Biswanathpur and what was the intention (animus manendi) of the opposite party to reside in village Biswanathpur. He further contended that the opposite party was born and brought up in Jeypore and she completed her education from schooling till post-graduation in Jeypore and moreover her father is alive who owns a house at Jeypore and all the family members of the opposite party are enrolled in the electoral roll in Jeypore in the district of Koraput. It is contended that even though the opposite party might have stayed in the village Biswanathpur at the time of filing of the maintenance application but she moved out of that place and therefore, it does not satisfy the expression 'resides' as appears in section 126(1) of Cr.P.C.
It is further contended that the inquiry report of the process server, the deposition of the opposite party and her blood relations establishes the fact that she never resided at 10 village Biswanathpur rather she was staying with her father at Jeypore. It is further contended that the opposite party has deliberately filed false and vague statement under affidavit to get favourable orders by misusing the Court and by abusing the process of law. It is further contended that all the notices sent to the opposite party were received by her at M 57/5, Telco Colony, Jamshedpur which is not within the local limits of the jurisdiction of Family Court, Puri and no notice was received by her at village Biswanathpur. It is further contended that the petition H.M.A. No. 250 of 2012 transferred by the Hon'ble Supreme Court was a civil petition under the Hindu Marriage Act and it has got no resemblance with Criminal Proceeding No. 144 of 2011. It is further contended that the petitioner challenged the jurisdiction of the Family Court, Puri from the very beginning in his written statement and the ex parte order dated 07.07.2012 was set aside on 17.11.2014 in Criminal Proceeding No.228 of 2012 and on restoration of the original file i.e. Criminal Proceeding No. 144 of 2011, the petitioner filed a petition for dismissal of the maintenance proceeding on the ground of territorial jurisdiction. It is contended that the opposite party has not come to the Court with clean hand and therefore, the impugned order should be set aside. The petitioner placed reliance in the case of V. Balakrishna Naidu -Vrs.- Mrs. B. Sakuntala Bai reported 11 in (1942) II Madras Law Journal 134 & K. Mohan -Vrs.- Balakanta Lakshmi reported in 1983 Criminal Law Journal 1316.
6. The learned counsel for the opposite party on the other hand contended that not only the opposite party is a resident of Biswanathpur but while she was staying there in 2011, the maintenance proceeding was initiated and therefore, in view of the 126(1) of Cr.P.C., the learned Judge, Family Court, Puri has jurisdiction to entertain the maintenance application. It is further contended that when the Hon'ble Supreme Court transferred the petition for restitution of conjugal rights filed by the petitioner to the learned Judge, Family Court, Puri on the prayer of the opposite party for adjudication and accordingly, it was adjudicated at Puri, the contention raised by the petitioner that the Family Court, Puri has no territorial jurisdiction to entertain the maintenance petition is absolutely baseless and the point regarding maintainability has been raised at a belated stage just to delay the proceeding. It is contended that when the petitioner himself had given the address of the opposite party in the petition for restitution of conjugal rights at Biswanathpur, therefore, the plea taken by the petitioner that the opposite party is not residing at Biswanathpur is fallacious and cannot be 12 accepted. It is contended that the petition under section 125 of Cr.P.C. is a provision for awarding maintenance to the deserted wife and to secure social justice in the society and therefore, every tricks played by the petitioner-husband to deprive the opposite party of her legal right should be discouraged.
The learned counsel for the opposite party placed reliance on the Full Bench decision of the Kerala High Court in case of Balan Nair -Vrs.- Bhabani Amma Valsalamma reported in A.I.R. 1987 Kerala 110.
7. Section 126 of Cr.P.C. deals with the procedural aspect of the maintenance proceeding under section 125 of Cr.P.C.
Regarding the place of institution and adjudication of the maintenance proceeding, it is indicated therein that such proceeding can be taken against any person in any district, inter alia, where the wife resides. It has been so designed by the legislature in order to enable a discarded wife to get much needed and urgent relief in any place which would be convenient to her. The proceeding under section 125 of Cr.P.C. is in the nature of a civil proceeding and the remedy is a summary one and the person seeking such remedy is ordinarily a helpless person.
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The word 'reside' means to live or to have a dwelling place or an abode and is not equivalent to something in the nature of having a domicile in a particular place or having a place as the place of origin or the place where the family used to live. The words 'where he or his wife resides' in section 126(1)(b) of the Code has been interpreted to mean not only domicile in the technical sense of that word but also something more than a flying visit to or a casual stay in a particular place contemplating animus manendi or an intention to stay for a period. The length of the period is dependent upon the circumstances of each case. Thus a person 'resides' in a place if he/she through choice makes it his/her abode permanently or temporarily and whether he/she has chosen to make a particular place his/her abode or not depends upon the facts and circumstances of each case. The territorial jurisdiction is to be determined on the date of filing the application. Even if the wife resides at a place temporarily on the date of filing of the application under section 125 Cr.P.C., the concerned Court within whose territorial jurisdiction she is residing, can entertain such application.
A Full Bench of Kerala High Court in the case of Balan Nair -Vrs.- Bhabani Amma Valsalamma reported in A.I.R. 1987 Kerala 110 held as follows:-
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"23. Proceedings under Chap. IX of the Code, however, stand on a different footing. The person against whom claim for maintenance is made is not accused of any offence; nor can he be convicted or sentenced. The proceedings against him are essentially of a civil nature, since the claim against him is essentially of a civil nature. The Court, naturally, has a duty to inform him about the proceedings and of his right to appear and contest. The normal duty of the Court is to record evidence in the presence of the person against whom the claim is made. That does not and cannot mean that the Court can compel his appearance. Whether he should appear or not is a matter left to his own decision."
In the case of V. Balakrishna Naidu -Vrs.- Mrs. B. Sakuntala Bai reported in (1942) II Madras Law Journal 134, it is held as follows:-
"2......The expression 'reside' implies, something more than 'stay'. It is defined in the Oxford Dictionary as "to dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place." The word therefore implies some intention to remain at a place and not merely to pay it a casual visit, intending shortly to move on to one's permanent residence. This is the purport of the decision of a Bench of the Lahore High Court in Charan Das v. Surasti Bai I.L.R. (1940) Lah. 755 : A.I.R. 1940 Lah. 449. The lower Court considered that the petitioner had no permanent place of residence; for wherever the petitioner went in the Mysore State he lived in a rented house and it was in a rented house that he lived in, Bangalore. The 15 learned Magistrate concluded that as the petitioner had no permanent place of residence, he must be deemed to have resided wherever he stayed. He stayed last at Trichinopoly; and so last resided in that town. The Magistrate's reasoning cannot however be accepted. A person who follows a profession must necessarily have some place of residence in which he can keep his wife and family and store his furniture and goods and to which he can return when he is not on tour. He can as well be said to reside in a rented house as in a house of which he is the owner. There can be little doubt that the petitioner had made Bangalore his home before he visited Trichinopoly and intended to continue to reside there. His visit to Trichinopoly was clearly a casual one, in order that the parties might see their relatives on their way from Ceylon to Bangalore. The residence of the petitioner at the time when he ill-treated his wife was therefore Bangalore and not Trichinopoly; and that was where the petitioner last resided with his wife at the time when the application for maintenance was filed."
In the case of K. Mohan -Vrs.- Balakanta Lakshmi reported in 1983 Criminal Law Journal 1316, it is held as follows:-
"4......On a plain reading of Section 488(8) of the old Code, it can be seen that the place where the wife resided after desertion by her husband was not material. This caused great hardship to wives. who after desertion were living far away from the place where they and their husbands last resided together. So, in order to remove such hardships, on the recommendation made 16 by the Law Commission, the present Section 126(1)(b) was enacted by introducing the expression 'or his wife' between the words 'he' and 'resides', so that the venue of the proceedings should also include the place where the deserted or neglected wife may be residing on the date of the application. In the present revision, the crucial word 'resides' occurring in Section 126(1)(b) alone comes up for interpretation. Under the old Code, the Magistrate of the district where the husband or father, as the case may be, resided, only had the jurisdiction. Now the jurisdiction is enlarged or widened. Section 126 (1) gives three alternative forums as enumerated in Clauses (a) to (c) there under. These alternative forums are designedly given by the Parliament so as to enable a discarded wife or helpless child to get the much-needed and urgent relief in one or the other of the three forums that is convenient to them. Needless to say that the proceeding under Section 125 is in the nature of a civil proceeding and the remedy is a summary one, as laid down in Sub-section (2) of Section 126, and the person seeking the remedy, as pointed out above, is ordinarily a helpless person. The introduction of the expression in Section 126(1)(b) is 'or his wife.'
5. So, the word 'resides' should be undoubtedly liberally construed, but at the same time, without doing any violence to the language and without defeating the very object of this provision.
6. The word 'resides' has been subject to conflicting judicial opinions. In the Oxford Dictionary it is defined as '....to live permanently or for a considerable time, to have one's settled 17 or usual abode, to live, in or at a particular place.'
7. The Corpus Juris Secundum, Vol. LXXVII at page 285 states that the word 'reside' is employed in a wide variety of significations, that its meaning may differ according to the connection in which it is used, that the particular signification of the term in any given instance depends on the context and the purpose under consideration and that it should be interpreted in the light of the object or purpose of its use. It is further noted therein as follows:-
"It has been said that the word 'reside' has two distinct meanings, and that it may be employed in two senses, and in what is sometimes referred to as the strict legal, or technical sense, it means legal domicile as distinguished from mere residence or place of actual abode. In this sense the word 'reside' means legal residence; legal domicile, or the home of a person in contemplation of law, the place where a person is deemed in law to live, which may not always be the place of his actual dwelling, and thus the term may mean something different from being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word, 'reside' includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence."
8. Again, at page 288, it is noted thus:-
"'Reside' has been held equivalent to, or synonymous with, 'abide', 'dwell', 'to have one's home', 'live', 'lodge', 'remain', 'residence', 'sojourn' and 'stay' 'Reside' is said to be usually 18 classed as synonymous with 'inhabit'; but not, in strictness, properly so."
9. In the Words and Phrases, Permanent Edn.
Volume 37, at page 308, it is defined thus:
"To 'reside' in ordinary acceptation, means to dwell, or to live...'Reside' means live, dwell, abide, sojourn , stay, remain, lodge."
10. The above lexicographical meaning of the word, therefore, takes in both the permanent dwelling and the temporary living in a place and it is therefore capable of different meanings including 'domicile' in the strictest and the most technical sense and a temporary residence in the liberal sense. Whatever meaning is given to it, one thing is obvious and it is that it does not include a casual 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 the particular statute.
11. In this case, the context and the 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' is understood to include temporary residence. For example, if a person goes from his permanent place 'A' to another place 'B' either for carrying out certain work or as an invitee or as a tourist and resides or stays there for one or two days, he cannot be said to be residing at 'B' in the legal sense. But, it he goes to the place 'B' and stay there for some length of time, though not permanently, but for the purpose of either educating his children or carrying on a business for a considerable length of time, he resides at 'B'. One cannot give exhaustive illustrations to 19 explain what the term 'resides' means. But, its meaning has to depend upon the circumstances of each case. The main criteria in determining what the term 'reside' means, is the intention or the animus manendi of the person residing in a particular place, and the cognate expression includes both temporary and permanent residence. But, the expression 'resides' used in Section 126(1)(b) of the new Code will not include a casual or flying visit or a brief stay. On the other hand, it implies more than that.
12. Mr. V. Gopinathan drew the attention of this Court to decisions of the various High Courts and ultimately to the decision of the Supreme Court, all defining the term 'reside'.
13. The Full Bench of the Allahabad High Court, in Arthur Flowers v. Minnie Flowers : ILR (1910) 32 All 203, has held, while interpreting the expression 'resides' occurring in Section 3 of the Indian Divorce Act, that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in that place within the meaning of the expression, so as to give jurisdiction under the Act to the Court within the local limits of whose jurisdiction such a place is situate.
14. In Charan Das v. Surasti Bai, AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was held that the sole test on the question of residence was whether a party had the animus manendi or an intention to stay for a definite period at one place and if he had such an intention, then alone could he be said to reside there.
x x x x x
16. This Court has in Sampoornam v. N.
Sundaresan, AIR 1953 Mad 78, observed as
follows:-
20
"In short, Sub-section (8) of
Section 488 Cr. P.C. does not necessarily refer to a permanent residence and it refers also to temporary residence, and the word 'residence' implies something more than a brief visit but not such a continuity as to amount to domicile. Each case, has to be dealt with on its merits as has been pointed out in Ganga Bai v. Pamanmal, AIR 1938 Sind 223 : 1939-40 Cri LJ 117, bearing in mind that the section should not be so strictly construed as to deprive the woman, who often in these cases is helpless, of assistance from the Court/which is most easily accessible to her."
The Supreme Court in Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, after having referred to the meaning of the term 'resides' as defined lexicographically and as interpreted by the various High Courts, has observed as follows:-
"The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no 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 casual stay in a particular place. They agree that there shall be animus 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 to 21 make a particular place his abode depends upon the facts of each case."
17. Therefore, it is clear that the exprecession 'resides' occurring in Section 126(1)(b) has to be given a liberal construction and the legislature could not have intended to use the said term in the technical sense of 'domicile' and it 'has to be understood to include a temporary residence also."
The Full Bench of Kerala High Court in case of T. J. Poonen -Vrs.- Rathi Varghese reported in A.I.R. 1967 Kerala 1, while interpreting section 3(3) of the Divorce Act, 1869 where the meaning of 'District Court' has been given has held as follows:-
"39.......From the various decisions referred to above, in our opinion, the following propositions emerge:
(1) To constitute 'residence', it is not necessary that the party or parties must have his or their own house;
(2) To constitute 'residence', the stay need not be permanent; it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period;
(3) "Residence" will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no intention of remaining, is not covered by the word 'reside';22
(4) "Residence" connotes something more than stay; it implies some intention to remain at a place, and not merely to pay it a casual visit; (5) As emphasised by the Supreme Court, by staying in a particular place, in order to constitute "residence", the intention must be to make it his or their abode or residence, either permanent or temporary;
(6) The expression "last resided" also means the place where the person had his last abode or residence, permanent or temporary; (7) Where there has been residence together of a more permanent character, and a casual or brief residence together Courts have taken the view that it is only the former that can be considered as "residence together" for determining the jurisdiction;
(8) The question as to whether a particular person has chosen to make a particular place his abode, is to be gathered from the particular circumstances of each case."
In case of Sadasivuni Puspa -Vrs.- S. Divakar Rao reported in 1985(1) Orissa Law Reviews 477, it is held as follows:-
"4. So according to clause (1)(b) of Section 126 Cr.P.C., the proceedings under section 125 Cr.P.C. may be taken against any person in any district where he or his wife resides. The dictionary meaning of 'reside' is 'to dwell permanently or continuously; have settled abode for a time; have one's residence or domicile'. 'Reside' means something more than a flying visit or a casual stay. There shall be an intention 23 to stay for a period, the length of which depending upon the circumstances of each case. A person resides in a place if he makes it as his abode permanently or even temporarily. In order to find out whether the petitioners actually resided or they had some intention to remain at a place and not merely to pay casual visit, it should be considered whether the period of stay was merely for a visit or for residence although temporary."
In case of Darshan Kumari -Vrs.- Surender Kumar reported in 1996 S.C.C. (Criminal) 44, it has been held that even temporary residence, if not casual, is sufficient to confer jurisdiction on the Magistrate at that place or of the district concerned to entertain an application under section 125 Cr.P.C.
In case of Pyare Lal -Vrs.- Smt. Siawati reported in 1997 Criminal Law Journal 2652, it is held that proceeding under section 125 Cr.P.C. can be filed at the place where the wife is living at the moment. It is not necessary that her living at her place should be permanent.
In case of Vijay Kumar Prasad -Vrs.- State of Bihar reported in (2004) 28 Orissa Criminal Reports (SC) 255, it is held as follows:-
"14. The basic distinction between Section 488 of the old Code and Section 126 of 24 the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing at the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of Civil nature. Unlike Clauses (b) and (c) of Section 126(1), an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives."
8. Adverting to the contentions raised by the respective parties carefully and on going through the documents filed by the parties, it appears that the opposite party while filing the maintenance application, has indicated her present address as 'Village/Post-Biswanathpur, P.S.-Satyabadi, Dist-Puri, State- Odisha'. She has not only stated in the application that the marriage between the parties was solemnized at Puri on 22.11.2009 which is not disputed by the petitioner but has also mentioned that since the petitioner tortured, gave fist blows and forcibly ousted her from his house at New Delhi on 22.02.2010, since then she was residing at the village house of her father at Village/Post- Biswanathpur, P.S.-Satyabadi, Dist-Puri. The 25 verification in the maintenance proceeding by the opposite party was made on 24.08.2011. In her deposition in the maintenance proceeding on dated 07.07.2012, she had given her present address as Vill-Biswanathpur, Sakhigopal, P.S.-Satyabadi, Dist- Puri and stated that the petitioner had subjected her to cruelty and lastly assaulted her and drove her out of his residence on 22.02.2010 for which she came to her native place at village Biswanathpur, P.S.- Satyabadi, Dist- Puri and taken shelter with her father. Even in the petition filed by the petitioner before the learned Judge, Family Court, Puri in Criminal proceeding No. 220 of 2012, the address of the opposite party has been indicated as 'R/o.-Village Biswanathpur, P.O.- Biswanathpur P.S.- Satyabadi, Puri, Odisha-752014'. The opposite party filed a transfer petition before the Hon'ble Supreme Court which was registered as Transfer Petition (c) No. 1119 of 2012 for transfer of H.M.A. No. 250 of 2012 pending before Family Court, Saket, New Delhi to the Family Court at Puri, Odisha and the transfer petition was allowed.
Therefore, not only from the address and the averments as given in the maintenance application but also the address of the opposite party as mentioned by the petitioner in his petitions either filed before the learned Judge, Family Court, 26 Puri or in his petition filed before the learned Principal Judge, Family Court, Saket, Delhi in H.M.A. No. 250 of 2012, the address of the opposite party has been indicated to be at Village- Biswanathpur, P.S.- Satyabadi, Dist-Puri. The materials available on record prima facie reveal that the opposite party was residing at Village-Biswanathpur in the district of Puri at the time of institution of maintenance proceeding which is her native place and thereafter, also for a substantial period, she resided there.
Since under section 8(b) of the Family Courts Act, 1984, the jurisdiction of the Magistrates under Chapter IX of Cr.P.C. has been excluded, reading the opening words of section 126(1) Cr.P.C. read with section 7(2)(a) of the Family Courts Act, 1984, it is quite clear that the Family Court at Puri has got jurisdiction to entertain the application filed by the opposite party under section 125 of Cr.P.C. and therefore, the contention raised by the petitioner that the opposite party never resided at Biswanathpur, Puri and that the learned Judge, Family Court, Puri has no jurisdiction to adjudicate the maintenance proceeding is not acceptable.
In view of the above discussions, I am of the humble view that, there is no illegality, infirmity or perversity in the impugned order passed by the learned Judge, Family Court, Puri 27 in rejecting the petition filed by the petitioner on dated 02.02.2015. Accordingly, the revision petition being devoid of merits, stands dismissed.
Since the maintenance proceeding is of the year 2011, the learned Judge, Family Court, Puri shall do well to expedite the proceeding and conclude the same within a period of three months from the date of receipt of this judgment providing due opportunity to the respective parties.
Before parting with the matter, it is made clear that any observation made by me while adjudicating this revision petition is for the limited purpose of deciding as to whether the learned Judge, Family Court, Puri has jurisdiction to adjudicate the maintenance proceeding or not and I may not be understood to have expressed any opinion one way or the other on the merits of the proceeding which shall be decided strictly in accordance with law without being influenced/inhibited by the above observations.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 15th February, 2017/Pravakar