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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

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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

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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-

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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.