Temporary residence is sufficient to confer jurisdiction under Section 488(8) of the Code of Criminal Procedure.

Kamla Sahai, J.

1. The opposite party has filed an application under Sec. 488 of the Code of Criminal Procedure before the Subdivisional Magistrate at Motihari. Her case is that she was married to the petitioner at Motihari, that she went to live with him at Darbhanga, and that thereafter he came and lived with her at her fathers house in Motihari for about ten flays. The petitioner raised the objection that the Motihari Court had no jurisdiction under Sub-section (8) of Sec. 488 of the Code to decide the case. The learned Magistrate ordered that this matter would be considered after evidence had been adduced. This application has been filed against that order.

2. Mr. Sarwar Ali, who has appeared on behalf of the petitioner, has argued that the words used in Sec. 488 (8) connote some amount of continuity or, in other words, an intention on the part of the couple to reside at a particular place indefinitely they can be held to have resided at that place (sic). I read Sub-section (8) of Sec. 488:

"(8) 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."

There is no doubt that the word resided docs not imply just a flying visit; but there is no reason why it should not be held to include temporary as well as permanent residence. Mr. Sarwar Ali has relied upon the decision in Charan Das v. Mt. Surasti Bai, AIR 1940 Lah 449. In that case, their Lordships have laid down that, in a case where the husband has a permanent residence the couple can only be said to have last resided at a different place if they had an intention to stay there for an indefinite period. I may, however, refer to another decision of the Punjab High Court, in Sardari Lal Amar Nath V/s. Mt. Kaushalya Devi, AIR 1957 Punj 84. Kapur, J., sitting singly, referred the case to a Division Bench. In the referring order, he mentioned that it had been laid down in Charan Dass Case, AIR 1940 Lah 449 that "a temporary residence is not within the meaning of the words last resided together". When the Division Bench considered the matter, Kapur, J. himself gave the judgment. He held that the word resides implied something more than a mere brief or flying visit but, where the wife resides in a village where her husband, who was residing at another place, visited her and lived with her, they must be held to have resided there within the meaning of Sec. 486 of the Code of Criminal Procedure. A similar question arose before a single Judge in this Court in Dadan Singh V/s. Smt. Shakuntala Devi, 1957 BLJR 19 his Lordship considered Charan Dass case, AIR 1940 Lah 449 and several decisions of the Allahabad, Calcutta and Bombay High Courts. The decision of the Calcutta High Court, which he referred to, was that in the case of Mrs. E. 11. Jolly V/s. St. John William Jolly, 21 Cal WN 872: (AIR 1918 Cal 785) in which it was found that the husband, who lived in Darjeeling, had come to Calcutta and resided there with his wife for eight days from the 16th to the 23rd January, and it was held that this was sufficient to confer jurisdiction upon the Calcutta Court to entertain an application under Section 488. In the present case, as I have said, the petitioner is alleged by the opposite party to have last lived with her in her fathers house for ten days. The conclusion which Banerji, J. has reached in Dadan Singhs case, 1957 BLJR 19 is: "Any person who dwells permanently or for a considerable time at a particular place may be said to be residing at that place. What should be the length of the period which would attract the provisions of Sub-section (8) has to be decided by a Court with reference to facts of the ease before it. The Court should always try to distinguish whether the period of stay was meant merely for a visit or for the purpose of residence, although of a temporary character,"

I respectfully agree; with this observation