Allahabad High Court
Smt. Shahana And Another vs State Of U.P. And Another on 17 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 01.11.2022 Delivered on 17.11.2022 Court No. - 91 Case :- CRIMINAL REVISION No. - 2542 of 2022 Revisionist :- Smt. Shahana And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Zafar Abbas Counsel for Opposite Party :- G.A.,Mohd. Samiuzzaman Khan,Saddam Husain Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Zafar Abbas, learned counsel for the revisionists, Sri Mohd. Samiuzzaman Khan, learned counsel for the respondent no. 2 and Sri Raja Ram Kushwaha, learned AGA for the State.
2. This criminal revision has been filed with a prayer to allow the prayer for setting aside and stay the operation of the impugned order dated 30.05.2022 passed by the Additional Principal Judge, Family Court, Moradabad in Criminal Case No. 609 of 2020, under Section 125 Cr.P.C.
3. The relevant facts are as below:-
The application under Section 125 Cr.P.C. Case No. 609 of 2020 (Smt. Shahana Khan and Another vs. Dr. Rashid Khan) was filed before the Additional Family Judge, Moradabad showing the petitioner Smt. Shahana as resident of MMIG 10, Azad Nagar, Near Water Tank, MDA Colony, Police Station Mojhola, District Moradabad. The affidavit, presented in support of the application, showed her as resident of the same place. During the proceedings of this case before the Family Court Judge, the applicant was questioned and an ordersheet dated 16.05.2022 was drawn as below:-
"प्रार्थिनी हाजिर। विपक्षी पर तामीला 29.11.21 को पर्याप्त मानी जा चुकी है।
प्रार्थिनी ने स्वयं को संभल का निवासी बताया ससुराल अलीगढ में बताई। पति को भी अलीगढ में रहना बताया, वर्तमान में स्वयं को अलीगढ में रहना कहा और भाई के पास स्थाई रूप से संभल में रहना बताया। मुरादाबाद के निवास के संबंध में प्रार्थिनी ने बताया कि उनके पति, खुद अपने दोस्त के घर छोड गए थे।
अतः वास्ते आदेश क्षेत्राधिकारिता दिनांक 30.5.22 को पेश हो।"
4. In the impugned order dated 30.05.2022, the learned court observed that it was clear from the statement as mentioned above, given in the Court that both the sides resided at Aligarh as husband and wife and that her adhaar card showed her as resident of Delhi, her daughter's birth certificate showed the address of Aligarh. The Court observed that her statement given on 16.05.2022 before the Court revealed that she did not reside at Moradabad and expressed an opinion that the rent deed paper no. 9-kha was not genuine and was executed just to bring her case within the jurisdiction of the Courts at Moradabad. After observing certain other circumstances, expressed a view that the jurisdiction to hear the application under Section 125 Cr.P.C., did not lie within the jurisdiction of Courts at Moradabad, therefore, her application was dismissed.
5. It is contended on behalf of the revisionist that both the parties are practising doctors and that the respondent no. 2 on the pretext of getting a clinic opened for her at Moradabad, brought her on the above address on 15.03.2020 and went back to Aligarh. During lock down, he intermittently visited her, however, after last visit on 13.09.2020, he not only declined from opening any clinic there but also never returned thereafter. It is contended that the applicant, as per her needs and requirements, visits her matrimonial house at Aligarh and also her brother's house at Sambhal but returns back to the same address at Moradabad. Therefore, the order impugned passed on the basis of some incomplete or isolated statement given by her cannot be made sole basis of adjudication upon the point of jurisdiction. It is contended that she is in fact resident of the address shown in the affidavit in Moradabad and rent deed is the evidence of the same, therefore, the matter lies within the jurisdictional Court of Moradabad.
6. The respondent no. 2, in his counter affidavit, stated that the revisionist tried to mislead the court on the point of jurisdiction; the respondent resides at Aligarh and that there was no question of settling at Moradabad; the parents of the revisionist also reside at Aligarh. The rent agreement was prepared on the same day on which, the case under Section 125 Cr.P.C. was filed just to manipulate the question of jurisdiction.
7. Heard both the sides and perused the papers on record. The case of revisionist as is revealed from Para no. 5 of the affidavit, is that as per her needs and convenience, she visits her parents at Aligarh and also her brother at Sambhal thereafter returns to the address at Moradabad. The grievance of the revisionist is that on the basis of an isolated statement recorded, without warning the revisionist, the statement as given in the affidavit cannot be nullified. It is also argued that as per the provisions of Section 126 Cr.P.C., any proceedings under Section 125 Cr.P.C., may be taken against any person where he or his wife resides or where he last resided with his wife, hence, the impugned order is not only bad on facts but also in law. It is also said that the revisionist is finding difficult to maintain herself and her legitimate right to receive maintenance has been put to an end without giving her a proper opportunity to present her side before the Court.
8. This is not disputed that no opportunity to produce oral or documentary evidence was afforded to the revisionist before the impugned order was passed. The matter of jurisdiction is a question of fact as well as law. In my view, finding cannot be given on the basis of incomplete or isolated statement given in the court by the affected party, when there is other equally important piece of evidence like rent deed showing residence. This is not to say that the courts do not have inherent powers to ask any question at any time relating to the facts and circumstances of the case, if required. However, in the present case, the matter appears disputed, hence, it shall be proper that the revisionist is given full opportunity to produce her oral or documentary evidence which can be tested by cross-examining the witnesses and thereafter adjudicate the matter.
9. In view of above, I am of the opinion that the revisionist as well as the respondent should be afforded an opportunity to adduce evidence on the point of jurisdiction. Keeping the question of jurisdiction as open, the matter may be decided finally after recording of evidence of both the sides to save the time.
10. The impugned order dated 30.05.2022 passed by the Additional Principal Judge, Family Court, Moradabad, is set aside. The matter is reverted back to the trial court. The trial court shall afford an opportunity to both the sides for adducing their evidence on all the points involved including the point of jurisdiction of the court. It is made clear that the question of jurisdiction based on the fact of residence of the revisionist shall be decided along with final disposal of the case by the trial court.
11. In view of the peculiar facts and circumstances of the matter, it is also directed that every endeavour shall be made to decide the case expeditiously and within maximum period of six months from the date of production of this order. The judgment shall be pronounced by the trial court without getting influenced by any of the observations made in this order.
12. The revision is, accordingly, disposed of.
Order Date :- 17.11.2022 Vik/-