Supreme Court of India
CASE NO.:Appeal (crl.) 431 of 2004
PETITIONER:Vijay Kumar Prasad
RESPONDENT:State of Bihar & Ors.
DATE OF JUDGMENT: 07/04/2004
BENCH:DORAISWAMY RAJU & ARIJIT PASAYAT.
The benefaction box reflects a unhappy state of affairs, as it involves a quarrel between a father and his sons. While a appellant is son of respondent No. 2 who is a postulant claiming upkeep in terms of Section 125 of a Code of Criminal Procedure, 1973 (in brief ‘the Code’), a other respondents are appellant’s step brothers.
2. The significant credentials projected by a parties need not be remarkable in fact as a primitive doubt concerned is one of law relating to office in terms of Section 126 of a Code where an focus can be filed. The focus was filed by a respondent No. 2 father in a Court of Chief Judicial Magistrate, Siwan. The appellant filed an focus for send of a box from Siwan to Patna alleging that an successful politician was behind a litigation, and he would not get probity if a box is attempted during Siwan as he could not even arrange a counsel to paint him. According to him, a Court during Siwan has no office to perform a focus since a appellant lives in Patna and is practising as a lawyer. The Patna High Court forlorn a focus for send radically on a belligerent that a purported apprehensions of a postulant were not established. The doubt relating to office was not privately adverted to.
3. In support of a appeal, schooled Counsel for a appellant submitted that a doubt relating to office was privately urged before a High Court. It was clearly settled that a appellant resides during Patna and a Court during Siwan could not have entertained a application. In further to a other aspects like inability to get lawyer, a doubt of office was privately urged. With anxiety to a denunciation of Section 126 it is submitted that a respondent No. 2 had filed a petition before a Siwan Court claiming that he resides within a office of a pronounced Court. It is not his chateau that would establish a jurisdiction, yet a place where a chairman from whom he claims upkeep i.e. benefaction appellant resides.
4. In response, schooled Counsel for a respondents submitted that a allegations of domestic change carrying been rejected by a High Court in a send petition, it was not open to a benefaction appellant to lift a doubt of jurisdiction.
5. Though a impugned sequence relates to a send petition, a doubt of office appears to have been privately lifted before a High Court. In normal march we would have remitted a matter to a High Court for a preference on that aspect; yet deliberation a attribute of a parties and as righteously submitted by schooled Counsel for a respondents a significance of a question, we consider it suitable to inspect a doubt of jurisdiction.
6. Section 126 of a Code is in hint a exercise of Sections 488(6) to (8) of a Code of Criminal Procedure, 1898 (in brief a ‘old Code’). Section 488 of a aged Code analogous to Section 126 so distant as applicable review as follows:
“Proceedings underneath this territory might be taken opposite any chairman in any district where he resides or is, or where he final resided with his wife, or, as a box might be, a mom of a deceptive child.”
7. Section 125 deals with several categories of persons who can explain maintenance. Sections 125 and 126 of a Code seem in Chapter IX that carries a streamer “Order for upkeep of wives. children and parents”.
8. Section 125(1)(d) relates to a father or a mother, incompetent to say himself or herself.
9. Section 126(1) that is applicable for a purpose of this box reads as follows:
“Proceedings underneath Section 125 might be taken opposite any chairman in any district-
(a) where he is, or
(b) where he or his mom resides, or
(c) where he final resided with his wife, or as a box might be, with a mom of a deceptive child.”
10. The position of law relating to correct office was highlighted by this Court in Mst. Jagir Kaur and Another v. Jaswant Singh, AIR 1963 SC 1521, as follows:
“The difference of a sub-section are, ‘resides’, ‘is’ and ‘where he final resided with his wife’. Under a Code of 1882 a Magistrate of a District where a father or father, as a box might be, resided usually had jurisdiction. Now a office is wider. It gives 3 choice forums. This in a view, has been resolutely finished by a Legislature to capacitate a rejected mom or a infirm child to get a most indispensable and obligatory service in one or other of a 3 forums available to them. The record underneath this territory are in a inlet of Civil proceedings, a pill is a outline one and a chairman seeking that pill as we have forked out, is usually a infirm person. So that difference should be liberally construed but doing any assault to a language.”
11. As remarkable in a above pronounced visualisation a essential countenance for a purpose of office in honour of a petition that is filed by a father is not where “parties reside” and “is”.
12. It is to be remarkable that Clauses (b) and (c) of Sub-section (1) of Section 126 describe to a mom and a children underneath Section 125 of a Code. The advantage given to a mom and a children to trigger pierce during a place where they reside is not given to a parents. A unclothed reading of a territory creates it transparent that a kin can't be placed on a same pedestal as that of a mom or a children for a purpose of Section 126 of a Code.
13. The simple eminence between Section 488 of a aged Code and Section 126 of a Code is that Section 126 has radically lengthened a venue of record for upkeep so as to pierce a place where a mom might be staying during a date of application. The change was suspicion required since of certain observations by a Law Commission, holding note of a fact that mostly forlorn wives are compelled to live with their kin distant divided from a place where a father and mom final resided together. As remarkable by this Court in several cases, record underneath Section 125 of a Code are of polite nature. Unlike Clauses (b) and (c) of Section 126(1) an focus by a father or a mom claiming upkeep has to be filed where a chairman from whom upkeep is claimed lives.
14. As has been remarkable in Jagir Kaur’s box (supra), a countenance “is” can't be given a same definition as a word “reside” or a countenance “the final resided”. It connotes in a context a participation or a existence of a persons in a district where a record are taken. It is wider in a judgment than a word “resides” and what matters is his earthy participation during a sold indicate of time. No anticipating has been available by a High Court on this sold aspect that needs a significant adjudication. The mount of a appellant is that he practises in Patna and was not benefaction in Siwan physically when a focus was filed for maintenance. Respondent No. 2-father has indicated about a son practising in a Patna High Court. Obviously if his son was practising during a time of display of petition in a Patna High Court, he could not have been physically benefaction during Siwan, whatever extended definition might be given to a countenance “is”. In perspective of this a position is transparent that a Court during Siwan has no office to understanding with a petition. One thing might be noted, that can transparent lot of cobwebs of doubt. The countenance “is” can't be construed to be a passing presence, yet it might not indispensably for substantial length of time as a countenance “resides” might require. Although a countenance routinely refers to a present, mostly it has a destiny meaning. It might also have a past interpretation as in a clarity of “has been” (See F.S. Gandhi (dead) by LRs. v. Commissioner of Wealth Tax. Allahabad, AIR 1991 SC 1866). The loyal goal has to be contextually culled out.
15. In a resources we approach a send of a box to a Sessions Division of Patna, with a instruction that a schooled Sessions Judge might pass suitable orders so that a matter can be placed before a Court of efficient jurisdiction. We make it transparent that we have not voiced any opinion on a merits of a box and/or on a law or differently of a allegations relating to domestic change or vigour as alleged.
We concede a interest to a border indicated.
Appeal authorised accordingly.