Temporary residence would confer jurisdiction under section 488(8) Cr.P.C. An objection as to jurisdiction is curable under section 531 Cr.P.C. (Old) corresponding to section 462 Cr.P.C. (New). The inherent powers of the High Court under section 482 Cr.P.C. can be exercised to prevent abuse of process of court or to secure the ends of justice, but such powers would not be exercised if there is a specific provision in the Code for the redress of the grievance of the aggrieved party.

Headnote:
MAINTENANCE - JURISDICTION - TEMPORARY RESIDENCE - SECTION 488(8) CR.P.C. - INHERENT POWERS OF HIGH COURT - SECTION 482 CR.P.C. - SECTION 531 CR.P.C. - SECTION 462 CR.P.C. - QUANTUM OF MAINTENANCE - SECTION 488(1) CR.P.C.
Fact of the Case:

The non-petitioner husband was a Senior Teacher in Government Higher Secondary School. The petitioner wife alleged that the husband misbehaved and turned her out of the house in 1972. She filed an application under section 488 Cr.P.C. for maintenance. The husband raised an objection as to jurisdiction, claiming that he did not reside within the jurisdiction of the court. The wife submitted an application stating that the husband had temporary residence in the village where the court was located. The husband filed a detailed reply denying the allegations and stating that the wife wanted him to reside with her at Masani. The Magistrate, after hearing the parties, held that the court had jurisdiction and fixed the amount of maintenance at Rs. 250/- p.m. from the date of filing of the application. The husband went in revision against the order of the Magistrate but without success. He then filed an application under section 482 Cr.P.C. challenging the order of the Magistrate.
Finding of the Court:

The High Court held that the Magistrate had jurisdiction to hear the application under section 488(8) Cr.P.C. as temporary residence would confer jurisdiction. The court also held that the objection as to jurisdiction was curable under section 531 Cr.P.C. (Old) corresponding to section 462 Cr.P.C. (New). The court further held that the inherent powers of the High Court under section 482 Cr.P.C. could be exercised to prevent abuse of process of court or to secure the ends of justice, but such powers would not be exercised if there was a specific provision in the Code for the redress of the grievance of the aggrieved party. The court also held that the amount of maintenance fixed by the Magistrate was excessive and reduced it to Rs. 200/- p.m. from the date of filing of the application. The court also ordered that the arrears of maintenance be paid in six half-yearly equal installments.
Issues: 1. Whether the Magistrate had jurisdiction to hear the application under section 488(8) Cr.P.C.? 2. Whether the objection as to jurisdiction was curable under section 531 Cr.P.C. (Old) corresponding to section 462 Cr.P.C. (New)? 3. Whether the inherent powers of the High Court under section 482 Cr.P.C. could be exercised to prevent abuse of process of court or to secure the ends of justice? 4. Whether the amount of maintenance fixed by the Magistrate was excessive?
Ratio Decidendi: 1. Temporary residence would confer jurisdiction under section 488(8) Cr.P.C. 2. An objection as to jurisdiction is curable under section 531 Cr.P.C. (Old) corresponding to section 462 Cr.P.C. (New). 3. The inherent powers of the High Court under section 482 Cr.P.C. can be exercised to prevent abuse of process of court or to secure the ends of justice, but such powers would not be exercised if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. 4. The amount of maintenance fixed by the Magistrate was excessive and was reduced to Rs. 200/- p.m. from the date of filing of the application.
Final Decision: The application under section 482 Cr.P.C. was partly allowed. The amount of maintenance was reduced from Rs. 250/- (two hundred fifty) to Rs. 200/- (two hundred) to be paid with effect from 23-8-1972. The arrears upto November 1978 shall be paid in six half yearly equal instalments. The first instalment shall be payable in the first week of January 1979 and the present applicant shall further pay maintenance every month from December, 1978, payable on the First of every succeeding month.

JUDGMENT

1. - This is an application under section 482, Cr. P. C. directed against the order of Additional Sessions Judge No. 1 Hanumangarh, dated 15-4-1978 passed in criminal revision No. 36 of 1976 Bichitra Singh v. Prasan Kaur , whereby the order of tit Judicial Magistrate, First Class, Hanumangarh, dated 20.8.1976 in an applicant under section 488, Cr. P. C. (old) fixing the amount of maintenance to the tune of Rs. 250/- p. m., with effect from 23-8-1972, was affirmed.

2. The relevant material facts are that the non-petitioner Mst. Prasan Kaur was married to the petitioner on 7/7/1952 at Mauja Saranwali and after the marriage, they lived as husband and wife at Faridkot and Sangrur. After sometime of the marriage their relations did not remain happy and estrangement started and the applicant Prasan Kaur accused the non-applicant of misbehaviour and a petition under section 9 of the Hindu Marriage Act was also instituted by the applicant. As a result of reconcilement, the same was withdrawn. After the decision in that case, they continued to live for about six months, but again the non-petitioner started beating and misbehaving the applicant during the period 1971 to June 1972 and 15th June, 1972, she was turned out from the house. Thereafter she started living with her parents at Mauja Masani. The non-applicant neglected her and did not provide any maintenance to her. It was alleged that non-applicant is a Senior Teacher in Government Higher Secondary School having sufficient salary and besides he has also got income from rent and agriculture. It was alleged that the non-applicant is having income of Rs. 20,000/- per annum. In para 8 of the application it was I alleged that the applicant lives at Mauja Masani, Tehsil TB so the Sub-Divisional Magistrate, Hanumangarh, has got jurisdiction. The applicant prayed for a sum of Rs. 250/- p. m. maintenance.

3. On behalf of the non-applicant, an application raising objection as to jurisdiction was submitted and it was alleged that the court has no jurisdiction to hear the application, as the non-applicant does not reside within the jurisdiction of the court nor he ever resided within its jurisdiction. He is a permanent resident of Punjab.

4. When objection as to jurisdiction was raised by the non-applicant the applicant submitted an application wherein it was stated that the non-applicant has temporary residence in village Masani. He is living in the house of Mahendra Singh, which still is in his exclusive possession. The non-applicant has been cultivating the land of Mahendra Singh. It was also alleged that the non-applicant has been carrying on cultivation in Ganganagar District as well as in the State of U. P. It was further alleged that at the time of harvesting the kharif crop in the year 1972 he stayed for more than a month in the house of Mahendra Singh working in his field. This application was accompanied with an affidavit of Chansingh.

5. The non-applicant thereafter hied a detailed reply to the main application wherein the allegations made in the application were denied and it was stated that the applicant wants him to reside with her at Masani. With regard to his income he stated that he is a school master working in Government Higher Secondary School, Sangrur, and that it is incorrect that his income is Rs. 20,000/- per annum. He is not getting any income from farming or from any house rent. It was alleged that the application is mala fide and is filed in order to cause harassment to him.

6. No evidence was recorded till the case remained pending with the Sub-Divisional Magistrate, Hanumangarh and on coming into force of the New Code of Criminal Procedure whereby separation of judiciary from executive was enforced, the case stood transferred to the file of Judicial Magistrate, First Class, Hanumangarh.

7. The learned Magistrate, recorded the evidence of the parties The applicant Prasan Kaur examined herself and produced Jagjeetsingh (P. W. 2), Kapursingh (P W. 3), Awatarsing

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1978 Supreme(Raj) 398

Cases Referred (5)

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