Sri Debmalya Chattopadhyay vs Smt. Baisakhi Chowdhury ...
2021 Latest Caselaw 5287 Cal

                       IN THE HIGH COURT AT CALCUTTA

                      CRIMINAL REVISIONAL JURISDICTION

Present:

THE HON'BLE JUSTICE JAY SENGUPTA

                             C.R.R. 764 Of 2019
                         Sri Debmalya Chattopadhyay
                                      Versus
                     Smt. Baisakhi Chowdhury (Chatterjee)


For the petitioner                :    Mr. Tapas Kr. Ghosh
                                       Mr. Tanmoy Chowdhury
                                                              ...Advocates

For the Opposite Party            :    Mr. Uday Sankar Chattopadhyay
                                       Mr. Santanu Maji
                                       Ms. Snigdha Saha
                                       Mr. Pronoy Basak
                                                              ...Advocates


Heard on                          :    14.09.2021


Judgment on                       :    01.10.2021




JAY SENGUPTA, J:


1.

This is an application challenging an order dated 15.02.2019 passed

by the learned Judicial Magistrate, 3rd Court, Purba Bardhaman in Misc.

Case No. 175 of 2018, thereby rejecting the prayer of the petitioner for

dismissal of an application under Section 125 of the Code on the ground of

lack of jurisdiction and also seeking transfer of the proceeding from the

learned Trial Court to a learned Court of competent jurisdiction at Bolpur,

Birbhum.

2. The marriage between petitioner/husband and the opposite party/wife

took place on 12.03.2017. Thereafter, disputes arose between them.

3. The petitioner filed an application under Section 12 of the Hindu

Marriage Act, 1955, being MAT Suit No. 55 of 2018, before the learned

District Judge, Birbhum at Suri praying for a decree of nullity of marriage.

The opposite party filed a revisional application praying for transfer of the

suit to the Court of the learned District Judge at Purba Bardhaman. On

20.06.2018 this Court disposed of the application by transferring the

matrimonial proceeding from the Court at Suri, Birbhum to the Court at

Bolpur, Birbhum.

4. On 04.06.2018 the opposite party filed an application under Section

125 of the Code being Misc. Case No. 175 of 2018 presently pending before

the learned Judicial Magistrate, 3rd Court, Purba Bardhaman. The petitioner

filed an application before the learned Magistrate praying for dismissal of

the case on the ground of lack of territorial jurisdiction. But, the same was

dismissed by the impugned order.

5. Mr. Tapas Kr. Ghosh, learned counsel appearing on behalf of the

petitioner, submitted as follows. The opposite party/wife actually stayed at

Bolpur, Birbhum. This was what she had stated clearly in her application

under Section 125 of the Code. That was also the place where her father

resided. However, giving the address of her brother-in-law, she sought to

have a proceeding under Section 125 of the Code initiated at Purba

Bardhaman. In fact, a matrimonial suit that was filed by the

petitioner/husband at Suri, Birbhum was transferred to Bolpur, Birbhum

by an order of this Court. In the said civil revision, this Hon'ble Court

refused to accede to the prayer of the present opposite party and after taking

into consideration the submissions of the respective parties, was pleased to

transfer the case to Bolpur, Birbhum. There was no reason for which the

present proceeding under Section 125 of the Code should be taken up at a

different place.

6. Mr. Uday Sankar Chattopadhyay, Learned Counsel appearing on behalf

of the opposite party/wife, submitted as follows. Although it was stated in

the application under Section 125 of the Code that after being deserted by

her husband, the wife took refuge at her father's place at Bolpur, it was also

quite categorically mentioned, both in the cause title as also in the affidavit,

that the temporary residence 'hal sakin' of the petitioner/wife was at

Paschim Bardhaman. In fact, after being deserted by her husband, the

petitioner was unable to meet both ends at her paternal home. That is why,

she had to be put up at her brother-in-law's place at Paschim Bardhaman.

The jurisdiction for a proceeding under Section 125 of the Code was not

exactly similar to that of a matrimonial suit between a couple. Section 126

(1) of the Code used the expressions 'is' and 'resides'. Therefore, if the wife at

present stayed, even temporarily, at a particular place, she would be entitled

to initiate a proceeding under Section 125 of the Code or to continue the

same at such place. On this reliance was placed on a decision of the Hon'ble

Apex Court in Vijay Kumar Prasad Versus State of Bihar and others (2004) 5

SCC 196 and on a decision of the Hon'ble Madras High Court in K. Mohan

Versus Balakanta Lakshmi, 1983 CrlJ 1316. The decision of this Hon'ble

Court passed on 20.06.2018 in CO 1175/2018 was arrived at "without going

into the controversy between the parties". There was no finding whatsoever

on what was the place where the lady was residing. As such, the said order

could not come in the way of this Court to have a proceeding under Section

125 of the Code continue at a different place.

7. I heard the submissions of the Learned Counsels appearing on behalf

of the parties and perused the revision petition.

8. It appears from the records that although the opposite party/wife in

her application under Section 125 of the Code stated that after the

unfortunate incidents happened at her matrimonial home, she was staying

at her parents' place, both in the cause title of the application as well as in

the affidavit portion, she clearly mentioned her temporary residence (hal

sakin) to be at Udayan Palli, Galsi, District Purba Bardhaman, care of one

Rathindra Nath Chowdhury. In the present application too, learned counsel

for the petitioner asserted the same fact that the opposite party was

presently residing at her brother-in-law's place at Purba Bardhaman, being

unable to meet both ends at her paternal home. Moreover, simply because

the petitioner had received a notice in another proceeding at her parent's

place at Bolpur, it cannot preclude her from claiming that she was presently

residing at Purba Bardhaman.

9. The decision of this Hon'ble Court passed on 20.06.2018 in CO No.

1175 of 2018 was clearly arrived at "without going into the controversy

between the parties". There was no finding in the order passed by this Court

that could prevent the opposite party from claiming that she presently

resides at Purba Bardhaman.

10. Section 126 (1)(b) implies that a proceeding under Section 125 of the

Code may be taken against any person in any district where he or his wife

resides.

11. There is no element of permanence connected to the term 'resides'.

Therefore, if a wife resides at a place for a reasonable length of time so as to

claim such place at least as her temporary residence, she should be entitled

to initiate or continue a proceeding under Section 125 of the Code at such

place. On this, reliance is placed on a decision of the Hon'ble Apex Court in

Vijay Kumar Prasad (supra) and on a decision of the Hon'ble Madras High

Court in K. Mohan (supra).

12. Moreover, I find that the impugned order was a reasoned one and the

learned Trial Court had rightly come to the conclusion that the proceeding

could not be dismissed on the ground of lack of territorial jurisdiction.

13. In view of the above discussions, I do not find any merit in this

application.

14. Accordingly, the revisional application is dismissed.

15. However, there shall be no order as to costs.

16. Learned Trial Court is requested to conclude the proceeding, as

expeditiously as possible, without granting any unnecessary adjournment to

any of the parties.

17. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J)

P. Adak