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
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Date of Hearing: 07.12.2016 Date of Judgment: 15.02.2017
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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
15learned 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
16by 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
23to 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