JAGIR KAUR Vs. JASWANT SINGH

JUDGEMENT

(1.) This appeal by special leave raises the question of true construction of S. 488 (8) of the Code of Criminal Procedure.

(2.) Jagir Kaur, the first wife of Jaswant Singh, was married to him in 1930. The said Jaswant Singh was employed in the police force in Africa. The Maklawa ceremony took place about 7 years after the marriage, when the respondent was away in Africa. After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa. Thereafter, the first appellant was taken to her mother-in law's house, and after living there for a few years she returned to her parental house. 5 or 6 years thereafter, Jaswant Singh came to India on 5 month's leave and the couple lived in Jaswant Singh's or his mother's house at Hans Kalam - it is not clear to whom the house belongs-for a period of 5 months and thereafter Jaswant Singh left for Africa. Before going to Africa, Jaswant Singh married another wife and took her with him to Africa. After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa. There she gave birth to a daughter, the second appellant. As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not do so. In the year 1960, he came back to India. It is also in evidence that he had purchased property in Ludhiana District for Rs. 25,000/- When he was admittedly in India, the first appellant filed a petition under S. 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time. The petition was fled by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming a maintenance at Rs. 200/- per month for both of them on the ground that the respondent deserted them and did not maintain them. The respondent filed a counter-affidavit denying the allegations and pleading that the said Court had no jurisdiction on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its jurisdiction. The learned Magistrate held that the petitioner-appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the husband and wife last resided together in the District of Ludhiana. On the merits, he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs. 100/- per month and for the daughter at the rate of Rs. 50/- per month. the respondent preferred a revision against that order to the Additional Sessions Judge, Ludhiana, and the learned Additional Sessions Judge agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision. The husband preferred-a revision to the High Court of Punjab against that order. The High Court disagreed with both the lower Courts on the question of jurisdiction. It held that the husband's permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein. On that view, it set aside the order of the learned Additional Sessions Judge and dismissed the petition. Hence the present appeal.

(3.) Mr. Kapur, learned counsel for the appellants, contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under S. 488 of the Code of Criminal Procedure was filed by the first appellant and, therefore, the learned Magistrate had territorial jurisdiction to entertain the application. In any view, he argued, the respondent submitted to the jurisdiction of the Magistrate and, therefore, he could no longer question the validity of his order on the ground of want of jurisdiction. On the other hand, the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein.