The central legal point established is that the jurisdiction for maintenance claims under Section 125 and Section 126 of the Code is determined by the residence of the person from whom maintenance is claimed, and the interpretation of 'resides' and 'is' in the context of jurisdiction.

Judgment

Arijit Pasayat, J.

Leave granted.

1. 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 claiming 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.

2. 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.

3. 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.

4. 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.

5. 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 consideration 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.

6. 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."

7. 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".

8. Section 125(1)(d) relates to the father or the mother, unable to maintain himself or herself.

9. 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."

10. The position of law relating to proper jurisdiction was highlig