Punjab-Haryana High Court
Smt. Sarishta Devi vs Sh. Kesho Dass Sharma on 26 February, 1991
Equivalent citations: (1991)99PLR575
JUDGMENT Jai Singh Sekhon, J.
1. The sole controversy involved in this petition under Section 482 of the Code of Criminal Procedure, 1975 (for short the 'New Code') is whether the Court under whose territorial jurisdiction the wife resides, can entertain proceedings under Section 125 of the New Code as provided in Section 126 sub-Section (i) clause (b) of this Code.
2. The brief resume of facts relevant for the disposal of this petition is that Mst. Sarishta Devi was married to Kesho Dass Sharma respondent, according to Hindu religious rites at village Bhagwanpur located in tehsil Pathaknkot of District Gurdaspur Thereafter both the parties resided as husband wife in district Kathaus in Janmu & Kashmir State. The husband refused and neglected to maintain his wife, which resulted in her residing with her parents at village Bhagwanpur in tehsil Pathankot. She filed an application under Section 125 of the New Code against her husband claiming Rs. 500/- per month as maintenance allowance contending that her husband has refused to maintain her. The respondent resisted this application before the trial Court on merits as well as on point of lack of territorial jurisdiction in the Court at Pathankot to entertain such application The trial Court dismissed the application on merits only without expressing any opinion on the point of jurisdiction. The petitioner then went in revision before the Sessions Judge, Gurdaspur, which was dismissed by the learned Additional Sessions Judge vide his impugned order dated 25 1-1990 on the ground of lack of jurisdiction of the, Court at Pathankot to entertain such application basics holding that the provisions of Section 125 of the New Code being not applicable to the State for Jammu & Kashmir, such application was not maintainable The learned Additional Sessions Judge, however, on merits held that the husband has refused and reglected to maintain the wife and that she was forced to live with her parents Being aggrieved against the said order of the learned Additional Sessions Judge pertaining to lack of jurisdiction the petitioner has filed this petition for quashment of the same.
3. I have heard the learned counsel for the parties besides perusing the record.
4. No doubt the provisions of the New Code have not been made applicable to the State of Jammu & Kashmir by the Legislature by providing is sub Section 2 of Section 1 that this Code extends to the whole of India except the State of Jammu & Kashmir, yet all the Same in view of the specific provisions in subsection (1)(b) of Section 126 of this Code, the wife shall have right to file application under Section 125 of the New Code at a place where her husband or she resides. The relevant portion of Section 126 reads as under:-
"126 Procedure-(I) Proceedings under Section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he has resided with his wife, or as the case may be, with the mother of the illegitimate child."
5. A perusal of the afore referred provisions of Section 126 of the New Code makes the intent of the Legislature very clear on the point of jurisdiction This conclusion is further supported from the fact urn that a special procedure has been prescribed under Chapter 9 of the New Code for saving the wives children and old parents from becoming destitute by incorporating a speedy remedy for awarding maintenance to these persons against the husband, parents or children, as the case may be the above referred provisions of Section 126 of the New Code are improvement upon the existing corresponding provisions of Section 488, sub-Section 8 of the old Code of Criminal Procedure, that is, Code of Criminal Procedure, 1898, because in the old Code, it was provided in sub-Section 8 that such proceedings under Section 488 may be taken against any person in any district where he resides or where he last resided with his wife Thus under these circumstances, the observations of the apex Court in Mst. Jogir Kaur end another v. Jaswant Singh, A. I. R. 1963 S. C. 1521, relied upon by the learned counsel for the respondent, holding that the Court where the wife resides has no jurisdiction to entertain the application under Section 488 of the old Code are not attracted to the facts of the case in hand
6. The learned counsel for the respondent then contended that in view of the non-application of the provisions of the New Code to the State of Jam mil & Kashmir and toe respondent being a citizen of that State, no application under Section 125 or 126 of the New Code is maintainable. This argument is based on misconception of the legal proposition because if the Court where the wife at present resides had the jurisdiction to try the matter under the provisions of Section 126, sub Section 1(b) of the New Code, then the provisions of this Code shall be applicable for deciding the controversy, especially when the Jammu & Kashmir Criminal Procedure Code is applicable in the territory of that State and not to the other territory of India beyond that State Moreover, the provisions of Section 123 or 126 of the New Code do not at all relate to the factum of citizenship but provide speedy remedy to the destitute wife, children or parents against husband, father or children, as the case may be by moving an application before the Judicial Magistrate of the place where the husband or other persons are or where the husband and wife last resided or where the wife last resides at the time of filing the petition Simply because the husband had refused or neglected to maintain the wife in the territorial jurisdiction of Jammu & Kashmir State, it cannot be said that at the provisions of the New Code are not attracted as the cause of action under Section 125 of the New Code would be a bundle of facts which includes the factum of marriage and the conduct of the husband in neglecting or refusing to maintain the wife. The consequences of neglect or refusal having ensued in rendering the wife destitute in the area of district Gurdaspur, there is no option but to hold that the provisions of the New Cods are applicable to the facts and circumstances of the case and there is no question of the case being decided under the provisions of Jammu & Kashmir Code of Criminal Procedure. As already remarked, the observations of the apex Court in Mst. Jagir Kaur's case (supra) are not applicable to the facts and circumstances of the case in hand.
7. On the other hand, the observations of the Cacutta High Court in Dipak Banrjee v. Sudipta Banerjee, 1988 (2) Recent Cr. R. 128 are fully attracted to the facts and circumstances of the case in hand. In that case, the husband was a foreign national. The marriage between the parties was celebrated in India on a short visit to Calcutta, the husband had deserted his wife and child. Under these circumstances, it was held that the wife can maintain an application under Section 125 of the New Code in India as the provisions of this Section do not exclude a foreigner from its purview and are applicable to all the persons irrespective of citizenship and person law of the husband. In view of the said position, there is no force in the contention of the learned counsel for the respondent.
8. For the reasons recorded above, the impugned order of the learned Additional Sessions Judge, Gurdaspur, regarding the lack of jurisdiction of the Court at Pathankot and non-application of the provisions of the New Code is quashed by accepting this petition The case is remanded to toe learned Additional Sessions Judge, Gurdaspur, for fixing the quantum of maintenance as the findings of that Court about the husband having refused and neglected to maintain the wife have become Sail final parties through their, counsel are directed to appear before the learned Additional Sessions Judge, Gurdispur, on 20-3-1991.