- (1.) S. N. Sahay, J. This is a revision against the order dated 1. 12. 89 passed by the learned Additional District and Sessions Judge, Farrukhabad, allowing the application of Smt. Anisa Begum, opposite party No. 1, under Section 3 of the Muslim Women (Protec tion of Rights on Divorce) Act, 1986 and directing Abdul Wahid, revisionist, to pay a certain sum of money, specified in the order, to her.
(2.) THE revisionist and opposite party No. 1 are Muslims, who were married in 1982. A divorce took place between them on 15th July, 1986 and thereafter on 20th December in the same year the aforesaid application was made by opposite party No. 1 for recovery of a sum of Rs. 19,600. 00 from the revisionist. THE application was filed in the Court of Judicial Magistrate, Kannauj in District Farrukhabad. THE application was dismissed by the learned Magistrate by order dated 10th August, 1988 on the ground that the op posite party No. 1 resided at Kanpur at the time of filing the application and, therefore, the court has no jurisdiction. THE opposite party No. 1 filed revision which was disposed of by the learned Additional Sessions Judge as aforesaid. He took the view that at the time of filing the application, the opposite party No. 1 resided with her grand parents in Minva Ganj Kannauj and, therefore, the learned Magistrate had jurisdiction to decide the case. THE learned Additional Sessions Judge also proceeded to consider the case on merits and accordingly directed the revisionist to pay to the opposite party No. 1 a sum of Rs. 10,000. 00 as price of certain goods, Rs. 5,000. 00 as Mehr, Rs. 3,000. 00 per month as maintenance during the period ohddat and Rs. 1,000. 00 as maintenance of the Children for a period of one year six months 'and Rs. 200. 00 as expenses; thus, a sum of Rs. 19,600. 00 in all. The learned counsel for the revisionist has assailed the order under revision on two grounds. In the first place he has urged that the learned Additional Sessions Judge has erred in law in interfering with the findings of fact recorded by the trial court that the opposite party No. 1 used to live in Kanpur at the time of filing the application under Section 3 of the aforesaid Act. He has submitted that even if two views were possible on the basis of evidence, it was not open to the learned Additional Sessions Judge to inter fere with the finding of the trial court and to come to a different conclusion. Secondly, it has been submitted by the learned counsel that after coming to the conclusion that the trial court has jurisdiction, a fact which is disputed by the revisionist, the learned Additional Sessions Judge should have remanded the case for determination on merits and should not have proceeded to dispose of the case himself. The first contention, put forward on behalf of the revisionist may be taken up. Section 2 (c) of the aforesaid Act provides that in this Act unless the context otherwise requires, "magistrate" means a Magistrate of 1st class, exercising jurisdiction under the Code of Criminal Procedure 1973 in the area where the divorced woman resides. Section 3 (2) of the Act lays down that where a reasonable and fair provision and maintenance of the amount of Mahr or Dower due has not been made or paid or the properties have not been delivered or the properties referred to in clause (d) of sub-section (1) of this Section have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, Mahr or dower or the delivery of properties, as the case may be. A combined reading of the aforesaid provisions will show that the application is to be made to a Magistrate exercising jurisdiction under the Cr. P. C. in the area where the divorced woman resides. The word 'reside' has not been defined in the Act and, therefore, it is to be understood in its ordinary legal sense. In Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, the word 'reside' used in Section 488 of the Criminal Procedure Code, 1898 which was the corresponding provision of Section 125 in the existing Criminal Procedure Code of 1973 was construed. Their Lordships held 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 circumstan ces 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 make a particular place his abode depends upon the facts of each case. Some illustrations may make our meaning clear : (1) A living in a village, goes to a nearby-town B to attend a marriage 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 by visits. (3) A. a resident of a town, goes to a city for higher education, 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 manendi 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. "
(3.) IT will be appropriate to adopt the same legal connotation of the word "reside", as has been described above, so far as the provisions of Section 2 (c) of the aforesaid Act are concerned. The object of the Act is the same as of Section 488 or Section 125, namely to protect the rights of a divorced Muslim woman and to make provision for her main tenance and support and the context in which the word has been used is almost same although the operation of the Act is confined to a particular community. So the word "reside" as used in Section 2 (c) of the aforesaid Act is to be understood as meaning the place where the divorced woman through her choice makes it her abode permanently or temporarily, but not a place where she pays a flying visit or has a casual stay. IT will depend upon the facts and circumstances of each case, whether she has chosen to make a particular place her abode and has the animus manendi for the said purpose. The learned Magistrate has examined the evidence on record and has come to a definite conclusion that the opposite party No. 1 lived in Kanpur and did not reside in an area subject to the jurisdiction of the trial court at the time of filing the application under Section 3. On the contrary no such categorical finding has been recorded by the learned Additional Sessions Judge in revision. He has observed that it is an admitted fact that Anisa Begum was living with her father in Kanpur but her ancestral house is in Mianganj, where her grand father resides, and she is on visiting terms to that place and lives there and it is possible that she has her permanent residence there. (Chunki Mian Ganj men uske Bap-Dada on ka maken hai is liye wahan ana jana hai aur rahte hain. Uska Sthayi niwas bhee ho sakta hai ). Thus there is no clear and positive finding, that Smt. Anisa Begum possesses the aninjus tnanendi to live at Mianganj and has made it her abode or residence.;