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Judgments of Supreme Court of India and High Courts

Nihar Ranjan Dash vs Smt Sunita Sarangi on 15 February, 2017

                              IN THE HIGH COURT OF ORISSA, CUTTACK

                                      RPFAM NO. 119 of 2015

         From the order dated 22.07.2015 of the learned Judge, Family
         Court, Puri in Criminal Proceeding No. 144 of 2011.
                                 -----------------------------
                Nihar Ranjan Dash                     .........                                  Petitioner

                                                    -Versus-

                Smt. Sunita Sarangi                    .........                                 Opp. party



                       For Petitioner:                    -             In person


                       For Opp. party:                    -             Mr. Mritunjay Banerjee

                                            -----------------------------

         P R E S E N T:

                          THE HONOURABLE MR. JUSTICE S.K. SAHOO

—————————————————————————————————
Date of Hearing: 07.12.2016 Date of Judgment: 15.02.2017

—————————————————————————————————

S. K. Sahoo, J. The petitioner Nihar Ranjan Dash who is the husband

of the opposite party Smt. Sunita Sarangi has challenged the

impugned order dated 22.07.2015 passed by the learned Judge,

Family Court, Puri in Criminal Proceeding No. 144 of 2011 in

rejecting the petition dated 02.02.2015 filed by the petitioner

challenging the maintainability of the proceeding under section
2

125 of Cr.P.C. instituted against him by the opposite party on

the ground of territorial jurisdiction.

2. It is case of the opposite party that she is the legally

married wife of the petitioner and her marriage was solemnized

with the petitioner on 22.11.2009 as per Hindi rites and customs

at Bagala Dharmashala at Puri. At the time of marriage, as per

the demand of the petitioner, cash of Rs.1,00,000/- (rupees one

lakh) was given to him. The opposite party then stayed with the

petitioner at Delhi where the petitioner was serving at Sriram

Institute of Marine Study. It is the further case of the opposite

party that the petitioner was a drunkard and keeping illicit

relationship with his own maternal aunt and when she came to

know about the same and protested, she was tortured physically

and mentally and was not even provided with food. She was

asked by the petitioner to bring Rs.5,00,000/- (rupees five lakhs

only) from her father or else to search for a job for her and to

pay her monthly salary to him. As she could not comply with the

same, she was tortured and ousted from the house of the

petitioner at New Delhi on 22.02.2010 and since then the

opposite party came to reside at the village house of her father

at Biswanathpur in Puri. The father and other family members of

the opposite party several times approached the petitioner and
3

his parents to take her back but they paid deaf ear to the

request made.

3. It is the case of the opposite party that the

application under section 125 of Cr.P.C. was filed by her before

the learned Judge, Family Court, Puri while she was staying at

her native village Biswanathpur in the district of Puri in the year

2011. Due to non-appearance of the petitioner at the time of

hearing in the maintenance proceeding, he was set ex-parte on

03.05.2012 and ex-parte judgment was pronounced on

07.07.2012 directing the petitioner to pay maintenance to the

opposite party from the date of filing of the petition.

The petitioner filed a petition under section 9 of the

Hindu Marriage Act for restitution of conjugal rights before the

Principal Judge, Family Court, Saket, New Delhi which was

registered as H.M.A. No. 250 of 2012 wherein the first address of

the opposite party was mentioned at Biswanathpur which is the

under of territorial jurisdiction of the Family Court, Puri. The

opposite party filed a transfer petition before the Hon’ble

Supreme Court which was registered as Transfer Petition (c) No.

1119 of 2012 for transfer of H.M.A. No. 250 of 2012 titled as

‘Nihar Ranjan Dash -Vrs.- Sunita Sarangi’ pending before Family

Court, Saket, New Delhi to the Family Court at Puri, Odisha and
4

the transfer petition was allowed vide order dated 11.02.2013.

After such order of transfer by the Hon’ble Supreme Court, the

case was registered as C.P. No.29 of 2013 in the Court of

learned Judge, Family Court, Puri. The petition for restitution of

conjugal rights filed by the petitioner was ultimately dismissed

by the learned Judge, Family Court, Puri vide order dated

22.11.2014.

The opposite party filed Execution Case No. 210 of

2012 for recovery of arrear maintenance dues from the

petitioner. The petitioner filed a petition under section 126 (2) of

Cr.P.C. to set aside the ex parte order of maintenance before the

learned Judge, Family Court, Puri which was registered as

Criminal Proceeding No. 228 of 2012 and vide order dated

17.11.2014, the ex-parte order of maintenance was set aside

and Criminal Proceeding No. 144 of 2011 was restored to the

status as on 03.05.2012.

4. The petitioner filed a petition on 02.02.2015 before

the learned Judge, Family Court, Puri challenging therein that the

application filed by the opposite party under section 125 of

Cr.P.C. in Criminal Proceeding No.144 of 2011 is not

maintainable on the point of territorial jurisdiction and prayed to

dismiss the same.

5

The learned Judge, Family Court, Puri vide impugned

order has been pleased to hold that since the opposite party-wife

is residing at Biswanathpur before filing of the case which comes

within his territorial jurisdiction and the petitioner has failed to

substantiate his plea that prior to filing of the case, the opposite

party-wife was not residing at Biswanathpur, the contention

raised by the petitioner was not tenable in the eye of law and

accordingly the petition was rejected.

5. The petitioner has argued his case in person and

submitted his written note of submission along with citations.

According to the petitioner, on 22.11.2009 the marriage between

him and the opposite party was solemnized at Bagala

Dharmashala, Puri in accordance with Hindu rites and customs in

presence of the family members, friends and relations but after

marriage, the opposite party turned down the petitioner’s

request for cohabitation. On 30.11.2009 both petitioner and

opposite party reached at Delhi at the residence of the petitioner

and within days of reaching at Delhi, the opposite party

demanded to visit her parents at Jeypore on the pretext of

appearing the mid-term examination of M.Com. On 12.12.2009

the opposite party went to her father’s place at Jeypore from

Delhi and AC 3-tier ticket was booked by the petitioner for her
6

and a cash of Rs.5,000/- was also given to her on her demand.

On 05.02.2010 after a long stay of almost two months, the

opposite party returned back to Delhi where the petitioner was

residing and stayed there till 16th March 2010. She continued to

turn down the request of the petitioner for cohabitation and

thereby debarred him from conjugal rights. On 16.03.2010 the

opposite party again went to her father’s place at Jeypore,

Odisha on the pretext of appearing the final M.Com examination

and AC 3-tier ticket was booked by the petitioner for her and

cash of Rs.15,000/- was given to her on her demand. It was

contended that since then the opposite party did not return back

voluntarily and deserted the petitioner and started demanding

money from him. In July 2010, the opposite party appeared in

M.Com final examination in Vikramdev Autonomous College,

Jeypore. In September 2010, the father of opposite party came

alone to Delhi and stayed in the house of another person

borrowed Rs.1,00,000/- (rupees one lakh) from the petitioner

which the petitioner gave him borrowing from his maternal

uncle. The father of opposite party promised to send back the

opposite party in the month of October 2010 but without

honouring his promise, the opposite party her parents started

demanding another Rs.5,00,000/- (rupees five lakhs only) from

the petitioner. When the petitioner expressed his inability to
7

arrange such a huge amount, the opposite party, her parents

and brother started abusing threatened the petitioner and his

mother who was a heart patient with dire consequences. In

November 2010, the mother of the petitioner came to Delhi for

her health checkups stayed there for four months. During the

said period, the petitioner his mother both requested the

opposite Party her parents several times to send her back to

the matrimonial home, however, the opposite party her

parents paid deaf ear to the such requests and kept on

demanding Rs.5,00,000/- (rupees five lakhs only). In February

2011, the opposite party with her parents and brother came to

Delhi to attend devotee congregation of Nilachal Saraswat

Sangh, Puri in the absence of the petitioner, the opposite party

came to his rented accommodation, deceptively defrauded her

mother-in-law took away all the gold jewellery kept in the

house and returned to her brother who was staying at

Jamshedpur, Jharkhand since then she is residing there.

It is contended by the petitioner that Criminal

Proceeding No.144 of 2011 for maintenance was filed with false,

frivolous serious imputations and that the Family Court, Puri

has no jurisdiction to entertain such case as per law. In October

2011, the opposite party received first notice sent by the
8

petitioner at her Jamshedpur address. The petitioner appeared in

the maintenance proceeding and filed written statement

attended the Court proceedings but he met with an accident on

27th January, 2012 for which he had undergone major surgery

at AIIMS, New Delhi was bed ridden for almost a year. In

February 2012, a petition under section 9 of the Hindu Marriage

Act for restitution of conjugal rights was filed by the petitioner

before Principal Judge, Family Court, Saket, New Delhi and on

30.04.2012 opposite party received the notice at M 57/5, Telco

Colony, Jamshedpur, where she was residing. The notice sent to

her in Biswanathpur address returned back with a detailed report

that she was not residing at the village Biswanathpur since a

prolonged period. On 07.07.2012 despite the prayer of

adjournment by the petitioner on health ground, the learned

Judge, Family Court, Puri passed an ex parte order in Criminal

Proceeding No. 144 of 2011. On 04.10.2012 a petition under

section 126(2) of Cr.P.C. was filed by the petitioner to set aside

the ex parte order which was numbered as Criminal Proceeding

No. 228 of 2012. On 17.11.2014 the petition i.e. Criminal

Proceeding No. 228 of 2012 filed by the petitioner was allowed

and the ex parte order was set aside with a cost of Rs.2,000/-

which was paid on the same day Criminal Proceeding No. 144

of 2011 was restored.

9

The petitioner submitted that the jurisdiction of a

Court to entertain an application under section 125 of Cr.P.C. is

not conferred by the place of marriage but to the place where

either of the spouses resides and in section 126(1) of Cr.P.C.,

place of marriage does not have any relevancy in adjudicating

the jurisdiction. He further contended that there is absolutely no

evidence as to for what period and with whom the opposite party

resided in village Biswanathpur and what was the intention

(animus manendi) of the opposite party to reside in village

Biswanathpur. He further contended that the opposite party was

born and brought up in Jeypore and she completed her education

from schooling till post-graduation in Jeypore and moreover her

father is alive who owns a house at Jeypore and all the family

members of the opposite party are enrolled in the electoral roll in

Jeypore in the district of Koraput. It is contended that even

though the opposite party might have stayed in the village

Biswanathpur at the time of filing of the maintenance application

but she moved out of that place and therefore, it does not satisfy

the expression ‘resides’ as appears in section 126(1) of Cr.P.C.

It is further contended that the inquiry report of the

process server, the deposition of the opposite party and her

blood relations establishes the fact that she never resided at
10

village Biswanathpur rather she was staying with her father at

Jeypore. It is further contended that the opposite party has

deliberately filed false and vague statement under affidavit to

get favourable orders by misusing the Court and by abusing the

process of law. It is further contended that all the notices sent to

the opposite party were received by her at M 57/5, Telco Colony,

Jamshedpur which is not within the local limits of the jurisdiction

of Family Court, Puri and no notice was received by her at village

Biswanathpur. It is further contended that the petition H.M.A.

No. 250 of 2012 transferred by the Hon’ble Supreme Court was a

civil petition under the Hindu Marriage Act and it has got no

resemblance with Criminal Proceeding No. 144 of 2011. It is

further contended that the petitioner challenged the jurisdiction

of the Family Court, Puri from the very beginning in his written

statement and the ex parte order dated 07.07.2012 was set

aside on 17.11.2014 in Criminal Proceeding No.228 of 2012 and

on restoration of the original file i.e. Criminal Proceeding No. 144

of 2011, the petitioner filed a petition for dismissal of the

maintenance proceeding on the ground of territorial jurisdiction.

It is contended that the opposite party has not come to the Court

with clean hand and therefore, the impugned order should be set

aside. The petitioner placed reliance in the case of V.

Balakrishna Naidu -Vrs.- Mrs. B. Sakuntala Bai reported
11

in (1942) II Madras Law Journal 134 K. Mohan -Vrs.-

Balakanta Lakshmi reported in 1983 Criminal Law Journal

1316.

6. The learned counsel for the opposite party on the

other hand contended that not only the opposite party is a

resident of Biswanathpur but while she was staying there in

2011, the maintenance proceeding was initiated and therefore, in

view of the 126(1) of Cr.P.C., the learned Judge, Family Court,

Puri has jurisdiction to entertain the maintenance application. It

is further contended that when the Hon’ble Supreme Court

transferred the petition for restitution of conjugal rights filed by

the petitioner to the learned Judge, Family Court, Puri on the

prayer of the opposite party for adjudication and accordingly, it

was adjudicated at Puri, the contention raised by the petitioner

that the Family Court, Puri has no territorial jurisdiction to

entertain the maintenance petition is absolutely baseless and the

point regarding maintainability has been raised at a belated

stage just to delay the proceeding. It is contended that when the

petitioner himself had given the address of the opposite party in

the petition for restitution of conjugal rights at Biswanathpur,

therefore, the plea taken by the petitioner that the opposite

party is not residing at Biswanathpur is fallacious and cannot be
12

accepted. It is contended that the petition under section 125 of

Cr.P.C. is a provision for awarding maintenance to the deserted

wife and to secure social justice in the society and therefore,

every tricks played by the petitioner-husband to deprive the

opposite party of her legal right should be discouraged.

The learned counsel for the opposite party placed

reliance on the Full Bench decision of the Kerala High Court in

case of Balan Nair -Vrs.- Bhabani Amma Valsalamma

reported in A.I.R. 1987 Kerala 110.

7. Section 126 of Cr.P.C. deals with the procedural

aspect of the maintenance proceeding under section 125 of

Cr.P.C.

Regarding the place of institution and adjudication of

the maintenance proceeding, it is indicated therein that such

proceeding can be taken against any person in any district, inter

alia, where the wife resides. It has been so designed by the

legislature in order to enable a discarded wife to get much

needed and urgent relief in any place which would be convenient

to her. The proceeding under section 125 of Cr.P.C. is in the

nature of a civil proceeding and the remedy is a summary one

and the person seeking such remedy is ordinarily a helpless

person.

13

The word ‘reside’ means to live or to have a dwelling

place or an abode and is not equivalent to something in the

nature of having a domicile in a particular place or having a place

as the place of origin or the place where the family used to live.

The words ‘where he or his wife resides’ in section 126(1)(b) of

the Code has been interpreted to mean not only domicile in the

technical sense of that word but also something more than a

flying visit to or a casual stay in a particular place contemplating

animus manendi or an intention to stay for a period. The length

of the period is dependent upon the circumstances of each case.

Thus a person ‘resides’ in a place if he/she through choice makes

it his/her abode permanently or temporarily and whether he/she

has chosen to make a particular place his/her abode or not

depends upon the facts and circumstances of each case. The

territorial jurisdiction is to be determined on the date of filing the

application. Even if the wife resides at a place temporarily on the

date of filing of the application under section 125 Cr.P.C., the

concerned Court within whose territorial jurisdiction she is

residing, can entertain such application.

A Full Bench of Kerala High Court in the case of Balan

Nair -Vrs.- Bhabani Amma Valsalamma reported in A.I.R.

1987 Kerala 110 held as follows:-

14

“23. Proceedings under Chap. IX of the Code,
however, stand on a different footing. The
person against whom claim for maintenance is
made is not accused of any offence; nor can he
be convicted or sentenced. The proceedings
against him are essentially of a civil nature,
since the claim against him is essentially of a
civil nature. The Court, naturally, has a duty to
inform him about the proceedings and of his
right to appear and contest. The normal duty of
the Court is to record evidence in the presence
of the person against whom the claim is made.
That does not and cannot mean that the Court
can compel his appearance. Whether he should
appear or not is a matter left to his own
decision.”

In the case of V. Balakrishna Naidu -Vrs.- Mrs.

B. Sakuntala Bai reported in (1942) II Madras Law Journal

134, it is held as follows:-

“2……The expression ‘reside’ implies, something
more than ‘stay’. It is defined in the Oxford
Dictionary as “to dwell permanently or for a
considerable time; to have one’s settled or usual
abode; to live in or at a particular place.” The
word therefore implies some intention to remain
at a place and not merely to pay it a casual visit,
intending shortly to move on to one’s permanent
residence. This is the purport of the decision of a
Bench of the Lahore High Court in Charan Das v.
Surasti Bai I.L.R. (1940) Lah. 755 : A.I.R. 1940
Lah. 449. The lower Court considered that the
petitioner had no permanent place of residence;
for wherever the petitioner went in the Mysore
State he lived in a rented house and it was in a
rented house that he lived in, Bangalore. The
15

learned Magistrate concluded that as the
petitioner had no permanent place of residence,
he must be deemed to have resided wherever he
stayed. He stayed last at Trichinopoly; and so
last resided in that town. The Magistrate’s
reasoning cannot however be accepted. A
person who follows a profession must
necessarily have some place of residence in
which he can keep his wife and family and store
his furniture and goods and to which he can
return when he is not on tour. He can as well be
said to reside in a rented house as in a house of
which he is the owner. There can be little doubt
that the petitioner had made Bangalore his
home before he visited Trichinopoly and
intended to continue to reside there. His visit to
Trichinopoly was clearly a casual one, in order
that the parties might see their relatives on their
way from Ceylon to Bangalore. The residence of
the petitioner at the time when he ill-treated his
wife was therefore Bangalore and not
Trichinopoly; and that was where the petitioner
last resided with his wife at the time when the
application for maintenance was filed.”

In the case of K. Mohan -Vrs.- Balakanta Lakshmi

reported in 1983 Criminal Law Journal 1316, it is held as

follows:-

“4……On a plain reading of Section 488(8) of the
old Code, it can be seen that the place where
the wife resided after desertion by her husband
was not material. This caused great hardship to
wives. who after desertion were living far away
from the place where they and their husbands
last resided together. So, in order to remove
such hardships, on the recommendation made
16

by the Law Commission, the present
Section 126(1)(b) was enacted by introducing
the expression ‘or his wife’ between the words
‘he’ and ‘resides’, so that the venue of the
proceedings should also include the place where
the deserted or neglected wife may be residing
on the date of the application. In the present
revision, the crucial word ‘resides’ occurring in
Section 126(1)(b) alone comes up for
interpretation. Under the old Code, the
Magistrate of the district where the husband or
father, as the case may be, resided, only had
the jurisdiction. Now the jurisdiction is enlarged
or widened. Section 126 (1) gives three
alternative forums as enumerated in Clauses (a)
to (c) there under. These alternative forums are
designedly given by the Parliament so as to
enable a discarded wife or helpless child to get
the much-needed and urgent relief in one or the
other of the three forums that is convenient to
them. Needless to say that the proceeding under
Section 125 is in the nature of a civil proceeding
and the remedy is a summary one, as laid down
in Sub-section (2) of Section 126, and the
person seeking the remedy, as pointed out
above, is ordinarily a helpless person. The
introduction of the expression in
Section 126(1)(b) is ‘or his wife.’

5. So, the word ‘resides’ should be undoubtedly
liberally construed, but at the same time,
without doing any violence to the language and
without defeating the very object of this
provision.

6. The word ‘resides’ has been subject to
conflicting judicial opinions. In the Oxford
Dictionary it is defined as ‘….to live permanently
or for a considerable time, to have one’s settled
17

or usual abode, to live, in or at a particular
place.’

7. The Corpus Juris Secundum, Vol. LXXVII at
page 285 states that the word ‘reside’ is
employed in a wide variety of significations, that
its meaning may differ according to the
connection in which it is used, that the particular
signification of the term in any given instance
depends on the context and the purpose under
consideration and that it should be interpreted in
the light of the object or purpose of its use. It is
further noted therein as follows:-

“It has been said that the word ‘reside’
has two distinct meanings, and that it may be
employed in two senses, and in what is
sometimes referred to as the strict legal, or
technical sense, it means legal domicile as
distinguished from mere residence or place of
actual abode. In this sense the word ‘reside’
means legal residence; legal domicile, or the
home of a person in contemplation of law, the
place where a person is deemed in law to live,
which may not always be the place of his actual
dwelling, and thus the term may mean
something different from being bodily present,
and does not necessarily refer to the place of
actual abode. When employed in this sense, the
word, ‘reside’ includes not only physical
presence in a place, but also the accompanying
intent of choosing that place as a permanent
residence.”

8. Again, at page 288, it is noted thus:-

“‘Reside’ has been held equivalent to, or
synonymous with, ‘abide’, ‘dwell’, ‘to have one’s
home’, ‘live’, ‘lodge’, ‘remain’, ‘residence’,
‘sojourn’ and ‘stay’ ‘Reside’ is said to be usually
18

classed as synonymous with ‘inhabit’; but not, in
strictness, properly so.”

9. In the Words and Phrases, Permanent Edn.
Volume 37, at page 308, it is defined thus:

“To ‘reside’ in ordinary acceptation, means to
dwell, or to live…’Reside’ means live, dwell,
abide, sojourn , stay, remain, lodge.”

10. The above lexicographical meaning of the
word, therefore, takes in both the permanent
dwelling and the temporary living in a place and
it is therefore capable of different meanings
including ‘domicile’ in the strictest and the most
technical sense and a temporary residence in the
liberal sense. Whatever meaning is given to it,
one thing is obvious and it is that it does not
include a casual stay in or a flying visit to a
particular place. In short, the meaning of the
word would in the ultimate analysis depend upon
the context and the purpose of the particular
statute.

11. In this case, the context and the purpose of
the present statute certainly do not compel the
importation of the concept of domicile in its
technical sense. The purpose of the statute
would be better served if the word ‘resides’ is
understood to include temporary residence. For
example, if a person goes from his permanent
place ‘A’ to another place ‘B’ either for carrying
out certain work or as an invitee or as a tourist
and resides or stays there for one or two days,
he cannot be said to be residing at ‘B’ in the
legal sense. But, it he goes to the place ‘B’ and
stay there for some length of time, though not
permanently, but for the purpose of either
educating his children or carrying on a business
for a considerable length of time, he resides at
‘B’. One cannot give exhaustive illustrations to
19

explain what the term ‘resides’ means. But, its
meaning has to depend upon the circumstances
of each case. The main criteria in determining
what the term ‘reside’ means, is the intention or
the animus manendi of the person residing in a
particular place, and the cognate expression
includes both temporary and permanent
residence. But, the expression ‘resides’ used in
Section 126(1)(b) of the new Code will not
include a casual or flying visit or a brief stay. On
the other hand, it implies more than that.

12. Mr. V. Gopinathan drew the attention of this
Court to decisions of the various High Courts and
ultimately to the decision of the Supreme Court,
all defining the term ‘reside’.

13. The Full Bench of the Allahabad High Court,
in Arthur Flowers v. Minnie Flowers : ILR (1910)
32 All 203, has held, while interpreting the
expression ‘resides’ occurring in Section 3 of the
Indian Divorce Act, that a mere temporary
sojourn in a place, there being no intention of
remaining there, will not amount to residence in
that place within the meaning of the expression,
so as to give jurisdiction under the Act to the
Court within the local limits of whose jurisdiction
such a place is situate.

14. In Charan Das v. Surasti Bai, AIR 1940 Lah
449 : 1941-42 Cri LJ 105, it was held that the
sole test on the question of residence was
whether a party had the animus manendi or an
intention to stay for a definite period at one
place and if he had such an intention, then alone
could he be said to reside there.

x           x            x           x            x
16. This Court has in Sampoornam v. N.
Sundaresan, AIR 1953 Mad 78, observed as
follows:-
                     20



      "In    short,     Sub-section     (8)    of

Section 488 Cr. P.C. does not necessarily refer
to a permanent residence and it refers also to
temporary residence, and the word ‘residence’
implies something more than a brief visit but not
such a continuity as to amount to domicile. Each
case, has to be dealt with on its merits as has
been pointed out in Ganga Bai v. Pamanmal, AIR
1938 Sind 223 : 1939-40 Cri LJ 117, bearing in
mind that the section should not be so strictly
construed as to deprive the woman, who often in
these cases is helpless, of assistance from the
Court/which is most easily accessible to her.”

The Supreme Court in Jagir Kaur
v. Jaswant Singh
, AIR 1963 SC 1521, after
having referred to the meaning of the term
‘resides’ as defined lexicographically and as
interpreted by the various High Courts, has
observed 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 circumstances 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
21

make a particular place his abode depends upon
the facts of each case.”

17. Therefore, it is clear that the exprecession
‘resides’ occurring in Section 126(1)(b) has to be
given a liberal construction and the legislature
could not have intended to use the said term in
the technical sense of ‘domicile’ and it ‘has to be
understood to include a temporary residence
also.”

The Full Bench of Kerala High Court in case of T. J.

Poonen -Vrs.- Rathi Varghese reported in A.I.R. 1967

Kerala 1, while interpreting section 3(3) of the Divorce Act,

1869 where the meaning of ‘District Court’ has been given has

held as follows:-

“39…….From the various decisions referred to
above, in our opinion, the following propositions
emerge:

(1) To constitute ‘residence’, it is not necessary
that the party or parties must have his or their
own house;

(2) To constitute ‘residence’, the stay need not
be permanent; it can also be temporary, so long
as there is animus manendi or an intention to
stay for an indefinite period;

(3) “Residence” will not take in a casual stay in,
or a flying visit to a particular place; a mere
casual residence in a place for a temporary
purpose, with no intention of remaining, is not
covered by the word ‘reside’;

22

(4) “Residence” connotes something more than
stay; it implies some intention to remain at a
place, and not merely to pay it a casual visit;
(5) As emphasised by the Supreme Court, by
staying in a particular place, in order to
constitute “residence”, the intention must be to
make it his or their abode or residence, either
permanent or temporary;

(6) The expression “last resided” also means the
place where the person had his last abode or
residence, permanent or temporary;
(7) Where there has been residence together of
a more permanent character, and a casual or
brief residence together Courts have taken the
view that it is only the former that can be
considered as “residence together” for
determining the jurisdiction;

(8) The question as to whether a particular
person has chosen to make a particular place his
abode, is to be gathered from the particular
circumstances of each case.”

In case of Sadasivuni Puspa -Vrs.- S. Divakar

Rao reported in 1985(1) Orissa Law Reviews 477, it is held

as follows:-

“4. So according to clause (1)(b) of Section 126
Cr.P.C., the proceedings under section 125
Cr.P.C. may be taken against any person in any
district where he or his wife resides. The
dictionary meaning of ‘reside’ is ‘to dwell
permanently or continuously; have settled abode
for a time; have one’s residence or domicile’.
‘Reside’ means something more than a flying
visit or a casual stay. There shall be an intention
23

to stay for a period, the length of which
depending upon the circumstances of each case.
A person resides in a place if he makes it as his
abode permanently or even temporarily. In
order to find out whether the petitioners actually
resided or they had some intention to remain at
a place and not merely to pay casual visit, it
should be considered whether the period of stay
was merely for a visit or for residence although
temporary.”

In case of Darshan Kumari -Vrs.- Surender

Kumar reported in 1996 S.C.C. (Criminal) 44, it has been

held that even temporary residence, if not casual, is sufficient to

confer jurisdiction on the Magistrate at that place or of the

district concerned to entertain an application under section 125

Cr.P.C.

In case of Pyare Lal -Vrs.- Smt. Siawati reported

in 1997 Criminal Law Journal 2652, it is held that proceeding

under section 125 Cr.P.C. can be filed at the place where the

wife is living at the moment. It is not necessary that her living at

her place should be permanent.

In case of Vijay Kumar Prasad -Vrs.- State of

Bihar reported in (2004) 28 Orissa Criminal Reports (SC)

255, it is held as follows:-

“14. The basic distinction between
Section 488 of the old Code and Section 126 of
24

the Code is that Section 126 has essentially
enlarged the venue of proceedings for
maintenance so as to move the place where the
wife may be residing at the date of application.
The change was thought necessary because of
certain observations by the Law Commission,
taking note of the fact that often deserted wives
are compelled to live with their relatives far
away from the place where the husband and
wife last resided together. As noted by this Court
in several cases, proceedings under
Section 125 of the Code are of Civil nature.
Unlike Clauses (b) and (c) of Section 126(1), an
application by the father or the mother claiming
maintenance has to be filed where the person
from whom maintenance is claimed lives.”

8. Adverting to the contentions raised by the respective

parties carefully and on going through the documents filed by

the parties, it appears that the opposite party while filing the

maintenance application, has indicated her present address as

‘Village/Post-Biswanathpur, P.S.-Satyabadi, Dist-Puri, State-

Odisha’. She has not only stated in the application that the

marriage between the parties was solemnized at Puri on

22.11.2009 which is not disputed by the petitioner but has also

mentioned that since the petitioner tortured, gave fist blows and

forcibly ousted her from his house at New Delhi on 22.02.2010,

since then she was residing at the village house of her father at

Village/Post- Biswanathpur, P.S.-Satyabadi, Dist-Puri. The
25

verification in the maintenance proceeding by the opposite party

was made on 24.08.2011. In her deposition in the maintenance

proceeding on dated 07.07.2012, she had given her present

address as Vill-Biswanathpur, Sakhigopal, P.S.-Satyabadi, Dist-

Puri and stated that the petitioner had subjected her to cruelty

and lastly assaulted her and drove her out of his residence on

22.02.2010 for which she came to her native place at village

Biswanathpur, P.S.- Satyabadi, Dist- Puri and taken shelter with

her father. Even in the petition filed by the petitioner before the

learned Judge, Family Court, Puri in Criminal proceeding No. 220

of 2012, the address of the opposite party has been indicated as

‘R/o.-Village Biswanathpur, P.O.- Biswanathpur P.S.- Satyabadi,

Puri, Odisha-752014’. The opposite party filed a transfer petition

before the Hon’ble Supreme Court which was registered as

Transfer Petition (c) No. 1119 of 2012 for transfer of H.M.A. No.

250 of 2012 pending before Family Court, Saket, New Delhi to

the Family Court at Puri, Odisha and the transfer petition was

allowed.

Therefore, not only from the address and the

averments as given in the maintenance application but also the

address of the opposite party as mentioned by the petitioner in

his petitions either filed before the learned Judge, Family Court,
26

Puri or in his petition filed before the learned Principal Judge,

Family Court, Saket, Delhi in H.M.A. No. 250 of 2012, the

address of the opposite party has been indicated to be at Village-

Biswanathpur, P.S.- Satyabadi, Dist-Puri. The materials available

on record prima facie reveal that the opposite party was residing

at Village-Biswanathpur in the district of Puri at the time of

institution of maintenance proceeding which is her native place

and thereafter, also for a substantial period, she resided there.

Since under section 8(b) of the Family Courts Act,

1984, the jurisdiction of the Magistrates under Chapter IX of

Cr.P.C. has been excluded, reading the opening words of section

126(1) Cr.P.C. read with section 7(2)(a) of the Family Courts

Act, 1984, it is quite clear that the Family Court at Puri has got

jurisdiction to entertain the application filed by the opposite

party under section 125 of Cr.P.C. and therefore, the contention

raised by the petitioner that the opposite party never resided at

Biswanathpur, Puri and that the learned Judge, Family Court,

Puri has no jurisdiction to adjudicate the maintenance

proceeding is not acceptable.

In view of the above discussions, I am of the humble

view that, there is no illegality, infirmity or perversity in the

impugned order passed by the learned Judge, Family Court, Puri
27

in rejecting the petition filed by the petitioner on dated

02.02.2015. Accordingly, the revision petition being devoid of

merits, stands dismissed.

Since the maintenance proceeding is of the year

2011, the learned Judge, Family Court, Puri shall do well to

expedite the proceeding and conclude the same within a period

of three months from the date of receipt of this judgment

providing due opportunity to the respective parties.

Before parting with the matter, it is made clear that

any observation made by me while adjudicating this revision

petition is for the limited purpose of deciding as to whether the

learned Judge, Family Court, Puri has jurisdiction to adjudicate

the maintenance proceeding or not and I may not be understood

to have expressed any opinion one way or the other on the

merits of the proceeding which shall be decided strictly in

accordance with law without being influenced/inhibited by the

above observations.

…………………………

S.K. Sahoo, J.

Orissa High Court, Cuttack
The 15th February, 2017/Pravakar

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