Sk. Sirajuddin vs The State Of West Bengal & Anr
2023 Latest Caselaw 7 Cal

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                             CRR 1055 of 2019

                              Sk. Sirajuddin

                                    Vs

                      The State of West Bengal & Anr.




For the Petitioner                 : Ms. Busera Khatun.




For the State                      : Mr. Joydeep Roy,
                                     Ms. Sujata Das.



For the O.P.                       : Mr. Apurba Kumar Dutta.




Heard on                           : 29.11.2022

Judgment on                        : 02.01.2023
                                    2


Shampa Dutt (Paul), J.:



     The present revision has been preferred against an order dated

  21.12.2018 passed by the Court of the learned Judicial Magistrate, 6th

  Court, Burdwan in connection with Misc. Case No. 415 of 2016

  (Firdoushi Begam vs. Sk. Sirajuddin) rejecting the petitioner/husband's

  petition challenging the maintainability of the proceedings under

  Section 125 Cr.P.C. on the ground that the opposite party no. 2/wife

  being a resident of Kolkata cannot file an application out side the

  jurisdiction of Kolkata. The application herein has been filed before the

  Burdwan Court.

     The petitioner's case is that he was married to the opposite party no.

  2 herein. The said marriage took place on 03.12.2010 according to

  Muslim rites and customs. The said marriage took place at Village-Uttar

  Kumrakhali, P.S.-Sonarpur, District-Sourth 24 Parganas and duly

  registered in the office of the Muslim Marriage Registrar (MMR) of

  Village-Uttar Kumrakhali, P.S. - Sonarpur, District - Sourth 24

  Parganas. In column no. 4 of the said marriage certificate, duly issued

  by the said marriage registrar, address of the opposite party no. 2, was

  recorded as Village-Badamtala, Brahmapur, P.O. - Brahmapur, P.S.

  Regent Park (at present Bansdroni), Kolkata. That in column no. 4 of

  the said marriage certificate it has been noted that the status of the

  bride as 'unmarried', though she was a divorcee and cannot be treated
                                   3


as unmarried. It was found that the said earlier marriage of the

opposite party no. 2, herein, was dissolved after realizing an amount of

Rs. 1,76,000/- (Rupees One Lack and Seventy Six Thousand) by

entering into an agreement in writing between the opposite party no. 2,

herein, and her said former husband.

   That after the present marriage the petitioner led his conjugal life

with the opposite party no. 2, herein, at Hyderabad in the State of

Andhra Pradesh where the petitioner was engaged as a casual worker.

After the marriage the opposite party no. 2, herein, used to pick up

quarrel on trifle matters, expressing her dissatisfaction, as the

petitioner, herein, is not upto her expectation. The petitioner always

tried to lead his conjugal life peacefully but his entire attempt failed as

the parent of the opposite party no. 2, herein, used to instigate the

opposite party no. 2 against the petitioner. On 06.09.2013 and

16.08.2014

in absence of the petitioner, the opposite party no. 2, her

father and brother with the help of some people of the locality at

Hyderabad took away all the valuable articles from the house of the

petitioner for which one written complaint was filed with the local police

station at Hyderabad. The petitioner states that inspite of all these facts

and circumstances the petitioner wants to live peacefully with his wife,

and for that purpose he has filed one application for restitution of

conjugal rights before the City Civil Court at Hyderabad in the State of

Andhra Pradesh. That before filling the said application for restitution of

conjugal rights the petitioner issued several notice, himself and through

his learned Advocate, Muslim Marriage Registrar and Kazi requesting

her to come back to live their conjugal life but on each and every

occasion she refused to come back without any reasons.

That all on a sudden the petitioner received an application under

Section 125 of the Code of Criminal Procedure being Misc. Case No. 415

of 2016 filed by the opposite party no. 2, against the petitioner praying

for maintenance before the Court of the learned Judicial Magistrate, 6th

Court at Burdwan. The petitioner contested the said application raising

objection regarding maintainability of the said application. After

contested hearing the learned Magistrate by an order dated 21.12.2018

was pleased to reject the said application filed by the petitioner on the

ground of maintainability.

The petitioner states that the opposite party no. 2, herein, filed an

application under Section 498A of the Code of Criminal Procedure

against the petitioner being Bansdroni Police Station Case No. 104 of

2013 and the petitioner filed one application against the opposite party

no. 2, alleging that in the death of the child of the petitioner the role of

the opposite party no. 2 should be investigated and the police registered

a case being Burdwan Police Station Case No. 14 of 2014 and after

investigation the police submitted a report that the place of the

residence of the opposite party no.2 is at Bansdroni, Kolkata. In the

medical certificate in respect of the treatment of the opposite party no. 2

also address was given as Bansdroni, Kolkata and an agreement which

was entered into by the father of the opposite party no. 2 where he

himself stated that he is the resident of Bansdroni, Kolkata.

That in connection with Bansdroni Police Station Case No. 191 of

2013 the father of the opposite party no. 2 contested the said case by

filling four separate petitions where he disclosed his residence at

Bansdroni, Kolkata and one at Hooghly. During pendency of the

proceeding the opposite party no. 2, sent a purported notice of

talaqnama dated 04.11.2018 through one Muslim Marriage Registrar of

Sonarpur, South 24 Parganas. That subsequent to the notice dated

04.11.2018 another talaqnama notice dated 27.08.2014 was sent to the

petitioner by the opposite party no. 2 through Muslim Marriage

Registrar office at Tiljala, Kolkata-700017 in which the address of the

opposite party no. 2 was shown as Badamtala Brahmapur, Bansdroni,

Kolkata. The opposite party no. 2, herein, is a working lady initially

posted at Sarberia An-Noor Mission at Sarberia, North-24-Parganas and

at present is working at Siddique E-Akbar Mission at Village-

Kantadighi, District- Bankura. But she filed the application for

maintenance against the petitioner with an ulterior motive and with a

view to harass the petitioner so that she can put pressure on him at

Burdwan, so that the different complaints and cases filed by the

petitioner in Kolkata may be withdrawn.

Learned Counsel for the petitioner Ms. Busera Khatun has

submitted that without considering the same the learned Judge

mechanically passed the order thereby rejecting the maintainability

petition filed by the petitioner which is illegal. That the learned Judge

rejected the maintainability petition filed by the petitioner not in terms

of the records and not in accordance with the provision of law, and

further submitted that the order of the learned Magistrate is bad in law

and liable to be set aside and if the instant proceeding is allowed to be

continued any further it will be abuse of process of law and as such it is

prayed that the order under revision should be quashed and set

aside and the case before the learned Judicial Magistrate, 6th

Court, Burdwan be transferred to any other District.

Mr. Apurba Kumar Dutta learned Counsel for the opposite party

has submitted that the voter's ID card filed by the opposite party before

the learned Magistrate clearly shows that she is originally the resident

of Burdwan and as such she has filed the said application under

Section 125 of the Cr.P.C. in Burdwan as she is presently residing

there.

Further contention of the petitioner/husband is that though the

wife/opposite party has filed a criminal case under Section 498A of the

IPC before Bansdroni P.S. at Kolkata, the application under Section 125

of the Cr.P.C. has been filed before the Burdwan Court to harass the

petitioner. The counter to the said submission of the petitioner is that

at the time of lodging the case for mental and physical cruelty upon the

opposite party/wife with Bansdroni P.S., Kolkata, she was residing in

Kolkata. But subsequently she has gone back to her ancestral home in

Burdwan and it is convenient for her to pursue her case under Section

125 of the Cr.P.C. before the Burdwan Court which is permissible

under the law. From the pleading of the petitioner it can be seen that

the petitioner has made a prayer before this Court to transfer the

application under Section 125 of the Cr.P.C. to "any place before any

Court of law" and has further stated on record that the case may be

transferred to the District of Bankura, or North 24 Parganas or South

24 Parganas anywhere except the District of Burdwan which is only

to harass the opposite party (wife). The order of the Magistrate under

revision is in accordance with law and the revision is liable to be

dismissed.

Heard Counsels both the parties and the Counsel for the State.

Perused the materials on record. Considered.

The Supreme Court in Vijay Kumar Prasad vs. State of Bihar &

Ors., (Appeal (crl.) 431 of 2004) on 07.04.2004, considering the

question of law involved before the Court relating to jurisdiction in

terms of Section 126 of the Code of Criminal Procedure as to where

an application can be filed held:-

"...............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."

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".

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

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."

The position of law relating to proper jurisdiction was highlighted by this Court in Mst. Jagir Kaur and Another v. Jaswant Singh (AIR 1963 SC 1521) as follows:

"The words of the sub-section are, "resides","is" and "where he last resided with his wife".

Under the Code of 1882 the Magistrate of the District where the husband or father, as the case may be, resided only had jurisdiction. Now the jurisdiction is wider. It gives three alternative

forums. This in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So the words should be liberally construed without doing any violence to the language."

As noted in the above said judgment the crucial expression for the purpose of jurisdiction in respect of a petition which is filed by a father is not where "parties reside" and "is".

It is to be noted that Clauses (b) & (c) of sub section (1) of Section 126 relate to the wife and the children under Section 125 of the Code. The benefit given to the wife and the children to initiate proceeding at the place where they reside is not given to the parents. A bare reading of the Section makes it clear that the parents cannot be placed on the same pedestal as that of the wife or the children for the purpose of Section 126 of the Code.

The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing at the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature.

Unlike clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.

As has been noted in Jagir Kaur's case (supra) the expression "is" cannot be given the same meaning as the word "reside" or the expression "the last resided". It connotes in the context the presence or the existence of the persons in the district where the proceedings are taken. It is wider in its concept than the word "resides" and what matters is his physical presence at the particular point of time. No finding has been recorded by the High Court on this particular aspect which needs a factual adjudication. The stand of the appellant is that he practises in Patna and was not present in Siman physically when the application was filed for maintenance. Respondent No. 2- father has indicated about the son practising in the Patna High Court. Obviously if his son was practising at the time of presentation of petition in the Patna High Court, he could not have been physically present at Siwan, whatever extended meaning may be given to the expression "is". In view of this the position is clear that the Court at Siman has no jurisdiction to deal with the petition. One thing may be noted, which can clear lot of cobwebs of doubt. The expression "is" cannot be construed to be a fleeting presence, though it may not necessarily for considerable length of time as the expression "resides" may require. Although the expression normally refers to the present, often it has a future meaning. It may also have a past signification as in the sense of "has been". (See F.S. Gandhi (Dead) by LRs. V. Commissioner of Wealth Tax, Allahabad (AIR 1991 SC 1866). The true intention has to be contextually culled out................."

From the said decision of the Supreme Court it is clear that

clause (b) and (c) of Sub section 1 of Section 126 of the Cr.P.C. relate to

wife and the children under Section 125 of the Cr.P.C. The benefit

given to the wife and the children to initiate proceedings at the

place where they reside is not given to the parents. It has been further

made clear by the Supreme Court that Section 126 of the Cr.P.C.

has essentially enlarged the venue of the proceedings for

maintenance so as to move the place where the wife may be

residing on the date of application that said change was brought in

taking note of the fact that often deserted wife are compelled to live with

their relatives fair away from the place where the husband and wife last

resided together.

In the present case the opposite party/wife has chosen to file her

application before the Burdwan Court and in support has even filed her

voter card, which prima facie proves that she is originally the resident

of Burdwan and is now residing there and it is convenient for her to

pursue the case at a place where she presently resides.

The intention of the petitioner/husband as it appears from his

prayer that the case may be transferred to any Court of law accept

Burdwan goes to prima facie prove that his only intention is to

inconvenience or may be harass the petitioner/wife.

Such motive and purpose of the husband should be discouraged

by the Court and the learned Magistrate rightly rejected the application

of the petitioner/husband for transfer of the case and this Court finds

no reason to interfere with the said order under revision and

accordingly the order dated 21.12.2018 passed by the Court of the

learned Judicial Magistrate, 6th Court, Burdwan in connection with

Misc. Case No. 415 of 2016 is hereby affirmed.

CRR No. 1055 of 2019 is thus dismissed.

All connected Application stand disposed of.

Interim order if any stands vacated.

There will be no order as to costs.

A copy of this judgment be sent to the learned Trial Court

forthwith for necessary compliance.

Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)