The Madhya Pradesh High Court recently comprising of a single Judge bench of Justice G.S. Ahluwalia while dealing with a revision preferred by the Petitioner/ husband who was aggrieved by the order passed by the family court, whereby his application under OVII R11 was rejected held that the word "resides" under Section 126 CrPC cannot be equated to a place where one makes 'a casual stay or a flying visit'. (Nirman Sagar Vs. Smt. Monika Sagar Chaudhari and another)
The bench noted that the provision provides that proceedings for maintenance 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.
Facts of the case
This revision under Sections 397, 401 of Cr.P.C. has been filed against the order passed by the Family Court Judge in case by which the application filed by the applicant under Order VII Rule 11 CPC read with Section 126 of Cr.P.C. was dismissed.
Since the controversy revolves in a very narrow compass, therefore, it is not necessary to mention the facts of the case in detail except that the applicant and respondent no.1 are the husband and wife, whereas respondent no.2 is the daughter of applicant. The respondents have filed an application under Section 125 of Cr.P.C. before the Court of Principal Judge, Family Court, Gwalior.
The applicant filed an application under Order VII Rule 11 CPC read with Section 126 of Cr.P.C. on the ground that the marriage of the applicant with respondent no.1 was performed on 29/11/2019 at Bhopal and they had resided at Bhopal for the last time as husband and wife. The respondent no.1 is a working woman and is residing in Delhi alongwith respondent no.2 and with a solitary intention to give jurisdiction to the Family Court, Gwalior, she has given the address of her parental home, whereas she is working in Airport Authority of India and the respondent no.2 is also studying in Delhi. Thus, it was stated that as the Family Court, Gwalior has no jurisdiction to entertain application under Section 125 of Cr.P.C., therefore, the application filed by the respondents under Section 125 of Cr.P.C. is liable to be dismissed being without jurisdiction.
Contention of the Parties
Challenging the order passed by the Court below, it was submitted by the counsel for the applicant that Section 126 of Cr.P.C. governs the jurisdiction of the Trial Court. It was further submitted that the respondent no.1 herself has admitted that she was already in job much prior to her marriage and from the year 2011 she is posted in Delhi.
It was submitted by the counsel for the respondents that since the permanent address of the respondent no.1 is at Gwalior and she occasionally visits her parental home, therefore, the Family Court at Gwalior has a jurisdiction to entertain the application filed under Section 125 of Cr.P.C.
Courts Observation and Judgment
The bench at the very outset after going through the submissions of the Parties and as clear reading of the said provision remarked, "Thus, the proceedings under Section 125 of Cr.P.C. may be taken against any person in any district where he or his wife resides or where he last resided with her wife or as the case may be with the mother of the illegitimate child. It is not the case of the respondent no.1 that she resided with the applicant for the last time in Gwalior.
Her contention is that Gwalior is her permanent address as her parents are residing there and she occasionally visits her parents and, therefore, the Family Court, Gwalior has a jurisdiction to entertain the application filed under Section 125 of Cr.P.C. The stand taken by respondent no.1 cannot be appreciated as the word “resides” cannot be equated with places where flying visits are made. It is not the case of respondent no.1 that at the time of filing of the application under Section 125 of Cr.P.C. she was posted in Gwalior and the Family Court, Gwalior would not lose jurisdiction merely on the ground that subsequently she was transferred, but the case of respondent no.1 is that from the year 2011 onwards she is posted in Delhi.
Flying visits to a particular place with a solitary intention to confer jurisdiction would not satisfy the provisions of Section 126 (1) of Cr.P.C."
The bench relied on the judgment of the Madras High Court in the case of K. Mohan v. Balakanta Lakshmi and held that a casual stay or a flying visit to a particular place cannot be treated as a part of the word "reside".
The bench further referring to the submissions of the Respondent, noted that she herself had admitted that she was living with her daughter in Delhi.
The address which has been shown by them in the cause-title has been given with a solitary intention to give territorial jurisdiction to the Family Court, Gwalior and in fact the Family Court, Gwalior has no territorial jurisdiction to try the application in the light of Section 126 of Cr.P.C.
The Court allowed the revision and remarked, "Accordingly, order dated 25/10/2021 passed by the Additional Judge to the Court of Principal Judge, Family Court, Gwalior in case No.234/2019 (new no.367/2021) is hereby set aside. The application filed by the respondents under Section 125 of Cr.P.C. before the Family Court, Gwalior is held to be without jurisdiction. However, liberty is granted to the respondents that if they so desire, they can file an application under Section 125 of Cr.P.C. before the Courts having jurisdiction in the light of Section 126 of Cr.P.C. 16. With aforesaid, the revision is allowed."
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