TALUKDAR,J. - (1.) THIS Rule is at. the instance of the second partv petitioner. Sri Ramkrishna Bose. against' an order dated the 21st March, 1970 passed by Sri A. K. Mitra. Magistrate, 1st Class Sealdah in. case no. M. 148 of 1969/T. Rule 71 of 1970, rejecting the second party's objection to the maintainability of the application for maintenance Under Section 488. Criminal. Procedure Code filed by the first -party Sm. Gouri Bose. on the ground of iurisdiction. .
(2.) THE facts leading on to the Rule are rather chequered. The parties, who are husband and wife, belong to respectable families but their relationship unfortunately become strained, shortly after their marriase leading on to a criminal case and two applications for maintenance. The husband as stated in his show cause petition, is employed as an Art Counsellor, State Institution of Education, Delhi while the wife, who was at the time of her marriaae. a student in the B. A. Class, is the daughter of a recognized educationist, since retired, and is well -connected. The criminal case, instituted by the wife, against the; husband and others Under Sections 420. 406 and 420/120B IPC is now pending in appeal. The first application for a maintenance of Rs. 300/ per month, being case no. M. 24 of 1968. was filed by . the wife before the Police Magistrate at Sealdah Under Section 488 Criminal Procedure Code on the 23rd May. 196 against the second party on grounds of cruelty, neglect and refusal to maintain. A preliminary objection was raised by the husband on the ground of jurisdiction and Sri R.K. Ganguly. Police Magistrate. Sealdah by his order dated the 2nd July, 1968 dismissed the wife's application on that ground, holding inter alia that 'the fact that the O. P. has attended this Court from time to time in connection with the criminal case pending before this Court against him, in my opinion, does not confer any iurisdiction upon this Court to entertain the proceeding'. The present application for maintenance, being the second one, was filed about one vear three months thereafter on the 26th August, 1969 in the court of the Police Magistrate, Sealdah on the % same ground and claiming the same amount as on the previous occasion, with the added averment made therein that the husband was residing at 19A. Ananda Palit Road, P. S. Entallv. Calcutta for attending the criminal case under sec - tions 420. 406. 417 and 120B IPC pending against him and as such 'is' residing within the jurisdiction of the Police Magistrate's Court, besides his residence with the first partv in 1967 at P. 309. C. I. T. Road, Calcutta. The second party showed cause on the 19th February. 1970 contending inter alia that the Sealdah Court has no iurisdiction to entertain the application Under Section 488 Criminal Procedure Code as he was neither residing within the iurisdiction of the Sealdah Court on the date of the application nor did the wife last resided with him therein nor even he 'is' within the jurisdiction of the said court at the time of the filing of the application. The learned Magistrate thereafter heard both the sides, regarding the maintainability of thx Mr. Prasun Chandra Ghosh. Advocate. (with Mr. Ramendranath Chakrabortv. Advocate) appearing in support of the Rule on behalf of the second party petitioner raised a short point relating to the maintainabilitv of the proceedings at the Sealdah Court on the around'of jurisdiction under Sub -section (8) to Section 488 Criminal Procedure Code. The steps of Mr. Ghosh's reasoning are that there must be animus man -endi or an intention to stav for an indefinite period; and that a mere temporary or a flyine visit to a place will not bring the case within the ambit of 'is' and confer iurisdiction on the court concerned. He also cited several cases which will be considered in their proper context. Mr. Nalin Chandra Baneriee, Advocate (with Mr. Jvotish Chandra Bose, Miss Meera Mallick and Miss Krishna Ghosh, Advocates) appearing on behalf of the first party opposed the Rule. He submitted that iurisdiction at this stage is to be determined on the averments made in the petition of complaint and in view of the clear and specific statements made in paragraphs 14 and 15 of the said petition of complaint that the first party was residing at the time at 19A. Ananda Palit Road. P. S. En'tallv. Calcutta in connection with the criminal case against him and some others pending al'Alipore. the present case comes within the purview of 'is' as enjoined in Sub -section (8) to Section 488 of the Code of Criminal Procedure. Mr. Baneriee contended in this context that the word 'is' has wider import than 'resides' or 'last resided' and is not limited by the animus manendi of the person or the duration or the nature of the stav. His mere physical presence even if he does, not work for gain in that iurisdiction. will do. Several cases were also cited by the learned Advocate and the same will be -considered in due course.
(3.) FOR a proper consideration of the point at issue oiie has to turn to the provisions of the statute. Sub -section (8) to Section 488 Criminal Procedure Code provides as follows: 'Proceedings under this section may be taken against any person in any district where Jie resides or is, or where he last resided whether with his wife or as the case may be the mother of the illegitimate child'. It appears therefore that three tests have been laid down to determine iurisdiction in a case of maintenance of wives - and children viz., where the person proceeded against resides or the place where he last resided or the place where he is at the time when the application is filed. If this triple test is not fulfilled the application filed by the first party would be bad for absence of iurisdiction and therefore not maintainable in law. It is pertinent now to refer to the pleadings which only at this stage would confer iurisdiction on the court concerned or rule out the same. The application for maintenance filed on the 26th August. 1969 is on the same ground and based on the same claim - as on the previous occasion excepting that there 4s an added averment made therein in paragraphs 14 and 15. Paragraph 14 is as follows: 'that the opposite party at present residing in Calcutta, 19A Ananda Palit Road. P. S. Entally and is attending this Court to answer the aforesaid criminal case Under Sections 420. 406, 417 and 120B, IPC pending in this Court.' Paragraph 15 states 'that the opposite party therefore is residing and 'is' within the iurisdiction of this Court, besides his residence with the petitioner in 1967 as aforesaid at P. 309, C. I. T. Road. Calcutta, which is within the jurisdiction of this Court'. In his show cause petition filed on the 19th February. 1970. the second partv averred in paragraph 17 as follows: 'that with reference to the statements made in paragraph 14 the O. P. submits that the allegations are absolutely false and the O. P. further Submits that he never resided or is at present residing at 19A, Ananda Palit Road. P. S. Entallv, Calcutta. As a matter of fact the O. P. has never seen and/or visited the premises at 19A, Ananda Palit Road. That being so. the statements made in paragraph 15 of the petition are wholly irrelevant and this is nothing but a recourse to a chance for filing this petition once again.' It was further averred in paragraph 19 that 'the statements made in paragraph 17 of the petition are false and the O. P. submits that whenever he comes to Calcutta to attend vour Honour's court m connection with the criminal case by the petitioner he stavs at Bhadreswar in the district of Hooghly'. It was also submitted in paragraph 21 that the - present application ,was made in order, to circumyent the court's previous order dated the 2nd July, 1958 passed on the earlier application for maintenance filed by the first party -and a. copy of the said order was submitted therewith marked as annexure 'A'. The report dated, the 9th September. 1967 submitted by the process -server before the Police Magistrate at Sealdah. states that the notice of the application Under Section 488 Criminal Procedure Code could not be served on the second party at 19A. Ananda Palit Road as he had already left for Delhi on 26 -8 -69.' In paragraph 4 again of the petition filed in court, upon which the the present Rule was issued, the second partv petitioner referred to the previous order of dismissal dated the 2nd Julv, 1968 on the ground of jurisdiction. In paragraph 5 of the said petition, it was stated that the present application for maintenance as filed by the wife mere -lv added one paragraph referring to the stay of the husband at 19A, Ananda Palit Road, Calcutta and that petition was already filed in the court below objecting to the purported iurisdiction. To determine ultimately the point of iurisdiction. the aforesaid materials on the record have to be considered in the light of the principles laid down in the various decisions from time to time by the different High Courts as also the Supreme Court.;