Punjab-Haryana High Court
Sardari Lal Amar Nath vs Mt. Kaushalya Devi Wife Of Sardari Lal on 12 September, 1956
Equivalent citations: AIR1957P&H84, 1957CRILJ536, AIR 1957 PUNJAB 84, ILR (1957) PUNJ 325 58 PUN LR 562, 58 PUN LR 562
JUDGMENT Kapur, J.
1. This is a rule obtained against an order made by Mr. Kulwant Singh, Magistrate 1st Class. Amritsar, allowing to the wife an allowance of Rs. 45/-per mensum as maintenance for her and for her son under Section 488, Criminal Procedure Code.
2. The sole question before me is one of jurisdiction. The husband, it is agreed before me, belonged to some place in Pakistan and on the parti-tion of the country he came to what is now Trdia and for some time he lived in Baserke a village in Amritsar District, with his wife. He is employed in some Defence Department and was, when the present petition was brought stationed at Meerut. The wife brought the application for maintenance in a Court in Amritsar, and the sole question raised then was, as it now is, as to whether the Amrit-sar Court has jurisdiction to take cognizance of this case.
3. Under Section 488(8), Criminal Procedure Code, proceedings under this section can be taken in any district where the husband resides or he and his wife last resided together. The question as to what is the meaning of the words "last resided together" was decided by a judgment of the Lahore High Court in Charan Das v. Mt. Suresti Bai, AIR 1940 Lah 449 (A) where it was held that a temporary residence is not within the meaning of the words "last resided together."
4. Counsel for the respondent, the wife, relies on Section 531 of the Criminal Procedure Coda and in support has quoted Sitram Kalwar v Sukia Kalwarin AIR 1929 Cal 336 (B), where it was held that merely because the case was brought in tha district of 24 Parganas while the husband and wife last resided together in Calcutta is not a ground for setting aside the order as it would be covered by Section 531 of the Criminal Procedure Code.
5. Counsel also relies upon a judgment of the Rangoon High Court in Maung Paik v. Ma Ohn Sint AIR 1939 Rang 210 (C) where in circumstances similar to the last case, Section 531 of the Criminal Procedure Code was applied. Ramaswami J. in Sampoornam v. Sundaresan AIR 1953 Mad 78 (D), held that where parties have no home of any sort and have been moving, about from place to place, each place where they do live would be their home for the time being and the Court within whose jurisdiction they resided last can entertain that application. The learned Judge referred to the Lahore case and was of the opinion that Sub-section (8) of Section 488 does not apply to a permanent residence.
6. The petitioner has referred me to a Single Bench judgment of this Court in Mahnga Mal v. Raj Kumari Criminal Revn. No. 779 of 1955 (E) in which it was held that Section 531 of the Criminal Procedure Cede cures all defects of jurisdiction unless failure of justice is proved. The question in my opinion, is of some importance because it is liable to all kinds of abuse. Examples of this kind can be multiplied and I think it is in the interests of justice if this matter was decided by a Division Bench so as to put an end to all controversies. I would, therefore, direct that the papers be sent to the Hon'blo the Chief Justice to constitute a Bench.
JUDGMENT OF DIVISION BENCH:
Kapur, J.
7. This was a case referred by me to a Division Bench to decide as to the effect of Section 531 of the Criminal Procedure Code.
8. The wife Kaushaiva Devi brought an application under Section 488 of the Criminal Procedure Code agninst her husband and claimed maintenance. She alleged that after the pantition of the country she and her husband lived in village Mahal and then in village Bhaini Basarke in District Amritsar where her parents were also residing, but they did so in a separate house of their own and she gave birth to a son there. The father as a witness stated that the respondent, i.e. the husband, was employed in Meerut and that the girl was in the village but whenever the husband could, he used to come and stay in the village with his wife during the holidays. No doubt, the wife stated that she went to live with the husband in Meerut and was residing in the village at the time the anplication was made, but that is not conclusive in order to decide the meaning of the words "where he last resided with his wife,"
9. If the wife was residing in the village In the house where the husband was visiting her, it cannot be said that he did not reside with his wife in the village. The house where the wife was residing in this particular case must be taken to be the marital house and it is not impossible for a person to have more than one dwelling place: see Sophia Orde v. Alexander, ILR 3 All 91 (F). Even a place of temporary residence is within the meaning of the word "resides".
It is true that "resides" implies something more than a mere brief or flying visit but in this case the wife was residing in the village and the husband who was employed outside, i.e. in Meerat, used to come to the village and the husband and the wife lived together as such. In my opinion, that would amount to "resides" within the meaning of the words as used in Section 488 of the Criminal Procedure Code.
10. And even if they did not, Section 531 of the Criminal Procedure Code would be a complete answer to the case set up by the petitioner. The section runs as follows:
"No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice."
It is not shown that there is any prejudice. In AIR 1929 Cal 336 (B), it was held that merely because the case was brought in the district of 24 Parganas while the husband and wife last resided together in Calcutta is not a ground for setting aside the order as it would come within Section 531 of the Criminal P.C., and the same view was taken in AIR 1939 Rang 210 (C), in circumstances which were similar to those in AIR 1929 Cal 336 (B).
11. In a Single Bench judgment of Bhandari C. J., in Criminal Revn. No. 779 of 1955 (E), the same view was taken in a matter under Section 488 which was an identical case in circumstances as the one, in the present case and it was held that under Section 531, Criminal P.C., no order of any Criminal Court can be set aside merely on the ground of jurisdiction as to the place of enquiry or trial unless it appears that an error as to jurisdiction has resulted in failure of justice.
12. The petitioner has submitted that the amount claimed is excessive. I am unable to agree with this submission. He is receiving Rs. 120/- and his wife and a child have been given a maintenance of Rs. 45/- a month. I would therefore dismiss this petition and discharge the rule.
Falshaw, J.
13. I agree.