The main legal point established in the judgment is that if a court had no jurisdiction, the order passed by it would be nullity in the eyes of the law. However, seeking to withdraw an application challenging the same order would preclude taking a contrary view later.

1. Heard Counsel for the parties.

2. In this application, the order, dated 10.02.2005 passed by the Family Court in Trial No. 37 of 2005 has been questioned by the petitioner on the ground that the Family Court, Siwan had no jurisdiction to pass the said order inasmuch as the Opposite Party No. 2, the wife, was not residing at Siwan nor did the petitioner reside at Siwan nor even any of the requirement u/s. 126(i) of the Code of Criminal Procedure was fulfilled.

3. Counsel for the petitioner, in this regard, has placed reliance on a judgment of the Apex Court in the case of Vijay Kumar Prasad V/s. the State of Bihar & Another, 2004 5 SCC 196 where in it has been held that a mere fleeting presence will not create jurisdiction in the Court for the purposes of initiating a proceeding u/s. 125 of the Code of Criminal Procedure. He, in this regard, urges that from the reading of the application filed by the Opposite Party no. 2 it would be clear that she had only claimed that she had gone to visit her mamas place and, therefore, on this pretext alone she could not have maintained a proceeding in the district of Siwan.

4. Mr. Ashok Jang Bahadur, Counsel for the Opposite Party No. 2, however, correctly draws my attention to an important fact on perusal of which it can not be said to be a case of fleeting presence because in paragraph no. 17 it was clearly stated that she had been forcibly driven away from her sasural in the district of Muzaffarpur and had to take shelter in her mamas house in the district of Siwan as she had no resource to sustain herself at Gopalganj. Therefore, it is clear that the complainant after being forcibly thrown away was staying at Siwan with her mama Shri Jeetendra Nath Verma and as such the Siwan Court had also the jurisdiction. The reliance placed on the judgment of Vijay Kumar Prasad (Supra) is thus totally misconceived because in that case the complainant-wife had not been driven away and/or subjected to cruelty at any other place except in her sasural. The alleged plea of fleeting presence of the complainant thus must fail.

5. Reverting back, Mr. Bahadur, learned Counsel for the Opposite Party No. 2 has further submitted that the whole issue of jurisdiction infact was also earlier raised on behalf of the petitioner in respect of the same impugned order which is the subject matter of the present application granting maintenance in favour of the Opposite Party No. 2. This Court finds that infact the same order, dated 10.02.2005 was earlier assailed unsuccessfully by the petitioner in Criminal Misc. No. 9199 of 2005 which was dismissed as withdrawn on 20.12.2005. Mr. Bahadur in this context has also drawn my attention to paragraphs 1, 7 and 8 of the application which have been very fairly annexed by the petitioner. Paragraphs 1, 7 and 8 reads as follows:

"1. That, this application on behalf of the sole petitioner above named for quashing the order dated 10.2.2005 passed by Sri G.C. Gupta, Learned Judicial Magistrate, Siwan in Misc. No. 79/98. Tr. No. 37/05 whereby he has been placed to fix a sum of rupees four thousand per month as interim maintenance from the date of the application dated 23.08.2004 to be paid within ten days of the next month due and also ordered to pay the arrears maintenance for the last four months at the rate of Rs. 4000.00 per month is directed in the following circumstances.

7. That, the learned Court below had no jurisdiction to try any case and pass orders inasmuch as the Opposite Party No. 2 purposely with an oblique motive gave false address of Siwan even though she permanently resides at Gopalganj where she admittedly had been practicing as an Advocate since 1999.

8. That, thus since opposite party no. 2 is permanently residing at Gopalganj where she has been practicing as an Advocate and she was married while she was staying with her uncle at Muzaffarpur or at Gopalganj where the opposite party no. 2 permanently resides, only has the jurisdiction to hold an enquiry