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. JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.3151/2003)
ARIJIT PASAYAT,J
Leave granted.
The present case reflects a sad state of affairs,
as it involves a fight between the father and his sons.
While the appellant is son of respondent No. 2 [who is
the petitioner claming maintenance in terms of Section
125 of the Code of Criminal Procedure, 1973 (in short
‘the Code’), the other respondents are appellant’s step
brothers.
The factual background projected by the parties
need not be noted in detail as the pristine question
involved is one of law relating to jurisdiction in terms
of Section 126 of the Code where an application can be
filed. The application was filed by the respondent No. 2
– father in the Court of Chief Judicial Magistrate,
Siwan. The appellant filed an application for transfer
of the case from Siwan to Patna alleging that an
influential politician was behind the litigation, and he
would not get justice if the case is tried at Siwan as
he could not even arrange a lawyer to represent him.
According to him, the Court at Siwan has no jurisdiction
to entertain the application because the appellant lives
in Patna and is practising as a lawyer. The Patna High
Court rejected the application for transfer primarily on
the ground that the alleged apprehensions of the
petitioner were not established. The question relating
to jurisdiction was not specifically adverted to.
In support of the appeal, learned counsel for the
appellant submitted that the question relating to
jurisdiction was specifically urged before the High
Court. It was clearly stated that the appellant resides
at Patna and the Court at Siwan could not have
entertained the application. In addition to the other
aspects like inability to get lawyer, the question of
jurisdiction was specifically urged. With reference to
the language of Section 126 it is submitted that the
respondent no. 2 had filed the petition before the Siwan
Court claiming that he resides within the jurisdiction
of the said court. It is not his residence which would
determine the jurisdiction, but the place where the
person from whom he claims maintenance i.e. present
appellant resides.
In response, learned counsel for the respondents
submitted that the allegations of political influence
having been discarded by the High Court in a transfer
petition, it was not open to the present appellant to
raise the question of jurisdiction.
Though the impugned order relates to a transfer
petition, the question of jurisdiction appears to have
been specifically raised before the High Court. In
normal course we would have remitted the matter to the
High Court for a decision on that aspect; but
considering the relationship of the parties and as
rightly submitted by learned counsel for the respondents
the importance of the question, we think it appropriate
to examine the question of jurisdiction.
Section 126 of the Code is in essence a repetition
of Section 488 (6) to (8) of the Code of Criminal
Procedure, 1898 (in short the ‘old Code’). Section 488
of the old Code corresponding to Section 126 so far as
relevant read as follows:-
“Proceedings under this section
may be taken against any person in any
district where he resides or is, or
where he last resided with his wife, or,
as the case may be, the mother of the
illegitimate child.”
Section 125 deals with various categories of
persons who can claim maintenance. Sections 125 and 126
of the Code appear in Chapter IX which carries the
heading “Order for maintenance of wives, children and
parents”.
Section 125(1)(d) relates to the father or the
mother, unable to maintain himself or herself.
Section 126(1) which is relevant for the purpose of
this case reads as follows:
“Proceedings under section 125 may
be taken against any person in any
district –
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with
his wife, or as the case may
be, with the mother of the
illegitimate child.”
The position of law relating to proper jurisdiction
was highlighted by this Court in Mst. Jagir Kaur and
Another v. Jaswant Singh (AIR 1963 SC 1521) as follows:
“The words of the sub-section are,
“resides”,”is” and “where he last
resided with his wife”. Under the Code
of 1882 the Magistrate of the District
where the husband or father, as the case
may be, resided only had jurisdiction.
Now the jurisdiction is wider. It gives
three alternative forums. This in our
view, has been designedly done by the
Legislature to enable a discarded wife
or a helpless child to get the much
needed and urgent relief in one or other
of the three forums convenient to them.
The proceedings under this section are
in the nature of civil proceedings, the
remedy is a summary one and the person
seeking that remedy, as we have pointed
out, is ordinarily a helpless person.
So the words should be liberally
construed without doing any violence to
the language.”
As noted in the above said judgment the crucial
expression for the purpose of jurisdiction in respect of
a petition which is filed by a father is not where
“parties reside” and “is”.
It is to be noted that Clauses (b) & (c) of sub
section (1) of Section 126 relate to the wife and the
children under Section 125 of the Code. The benefit
given to the wife and the children to initiate
proceeding at the place where they reside is not given
to the parents. A bare reading of the Section makes it
clear that the parents cannot be placed on the same
pedestal as that of the wife or the children for the
purpose of Section 126 of the Code.
The basic distinction between Section 488 of the
old Code and Section 126 of 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.
As has been noted in Jagir Kaur’s case (supra) the
expression “is” cannot be given the same meaning as the
word “reside” or the expression “the last resided”.
It connotes in the context the presence or the existence
of the persons in the district where the proceedings are
taken. It is wider in its concept than the word
“resides” and what matters is his physical presence at
the particular point of time. No finding has been
recorded by the High Court on this particular aspect
which needs a factual adjudication. The stand of the
appellant is that he practises in Patna and was not
present in Siman physically when the application
was filed for maintenance. Respondent No. 2-
father has indicated about the son practising in the
Patna High Court. Obviously if his son was practising at
the time of presentation of petition in the Patna High
Court, he could not have been physically present at
Siwan, whatever extended meaning may be given to the
expression “is”. In view of this the position is clear
that the Court at Siman has no jurisdiction to deal with
the petition. One thing may be noted, which can clear
lot of cobwebs of doubt. The expression “is” cannot be
construed to be a fleeting presence, though it may not
necessarily for considerable length of time as the
expression “resides” may require. Although the
expression normally refers to the present, often it has
a future meaning. It may also have a past signification
as in the sense of “has been”. (See F.S. Gandhi (Dead)
by LRs. V. Commissioner of Wealth Tax, Allahabad (AIR
1991 SC 1866). The true intention has to be contextually
culled out.
In the circumstances we direct the transfer of the
case to the Sessions Division of Patna, with the
direction that the learned Session Judge may pass
appropriate orders so that the matter can be placed
before the court of competent jurisdiction. We make it
clear that we have not expressed any opinion on the
merits of the case and/or on the truth or otherwise of
the allegations relating to political influence or
pressure as alleged.
We allow the appeal to the extent indicated.