To summarize : Chapter XXXVI of the Code
of Criminal Procedure providing for maintenance of wives
and children intends to serve a social purpose. Section
488 prescribes alternative forums to enable a deserted
wife or a helpless child, legitimate or illegitimate, to get
urgent relief. Proceedings under the section can be taken
against the husband or the father, as the case may be, in
a place where he resides, permanently or temporarily, or
where he last resided in any district in India or where he
happens to be at the time the proceedings are initiated.
10. On perusal of the aforementioned finding
recorded by Hon’ble Supreme Court, since Section 125 of
Cr.P.C is a social measure providing immediate relief to
the destitute wife and children, prima-facie, accepting the
duly sworn affidavit by aggrieved parties (wife and
children) that they are residing away from the matrimonial
home and the address shown in the affidavit is to be
accepted. Indeed the Family Court ought to have accepted
the address provided in the petition supported by an
affidavit by the petitioners and should have issued notice
to the respondent. Raising objection with regard to
residential proof of the petitioners at that juncture itself
would defeat the very purpose of scope of Section 125 of
Cr.P.C. Undisputably, the affidavit is supported by an
application and the petition is preferred by the wife and
children seeking maintenance. It is also recorded by the
deponent in the said affidavit that they are residing
separately from the husband/father and therefore, I am of
the view that raising objection at the initial stage, directing
the petitioners to provide a residential address with regard
to the jurisdiction aspect, would defeat the entire
legislative intention of Section 125 of Cr.P.C. May be, the
jurisdictional aspect is required with regard to the
competency of the Court, however, such a requirement
may be an exception to the provisions under Section 125
of Cr.P.C. for the reasons mentioned above. If the
applicant/petitioner filed petition along with an affidavit
disclosing their residential address in the duly sworn
affidavit, that itself is sufficient to continue the
proceedings to provide immediate relief to the destitute
wife/children. {Para 12}
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
SANGEETA W/O BAPU LAMANI Vs BAPU S/O SOMAPPA LAMANI
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
DATED THIS THE 07TH DAY OF JULY, 2022
This petition is filed by the petitioners in Crl. Misc.
No.145/2020 on the file of the Family Court, Dharwad,
challenging the order dated 05.11.2020 on the file of the
Family Court, Dharwad decline to accept the petition on
the ground of territorial jurisdiction.
2. Heard the learned counsel for the petitioner.
Respondent is served.
3. The Family court raised an objection with
regard to the maintainability of the petition on the ground
that the address shown in the cause title and the
documents produced by the petitioners do not tally and
therefore, the office objection was accepted by the learned
Judge of the Family Court and returned the petition to the
petitioner for presentation of the same before the
jurisdictional Court.
4. In this matter, though relevant documents have
not been produced by the petitioners to say that they are
residing at Dharwad, however, the petitioner has filed an
affidavit stating that, she is residing with her Aunt
Meenakshi Ritti’s House, at Dharwad. It has also come in
the finding of the Family Court that the said Meenakshi
Ritti is residing at Dharwad and therefore, the Family
Court ought to have given an opportunity to the
petitioners to have their say in the matter with regard to
the proof of their residing in the house of their Aunt-
Meenakshi Ritti. Since the petition is filed under Section
125 of Cr.P.C. which is a summary proceedings, the same
requires immediate action by the Family court to
safeguard the destitute wife and children. In the case of
ABHILASH Vs. PARKASH, reported in AIR 2020 SC 4355,
the Hon’ble Apex Court held that, the purpose of summary
proceedings provided under Section 125 of Cr.P.C., is to
provide immediate relief to the applicant. In the case of
DWARIKA PRASAD SATPATHY Vs. BIDYUT PRAVA DIXIT
AND ANOTHER reported in AIR 1999 SC 3348, the Hon’ble
Supreme Court observed that the provision contained
under Section 125 of Cr.P.C. is a measure of social justice
extended to protect wife and children and to prevent
vagrancy and destitution. It provides speedy remedy to
deserted women. It is also well established principle in
law that strict proof of marriage is not a condition
precedent for providing maintenance and the reasonable
period of living is sufficient [(2010) 10 Scale 602]. In the
case of RAJNESH Vs. NEHA AND ANOTHER, reported in
(2021) 2 SCC 324, the Hon’ble Apex Court observed that,
the remedy provided under Section 125 of Cr.P.C. is a
measure of social justice as envisaged under provision of
the Constitution of India to prevent wife and children from
falling into destitution and vagrancy. In the case of
BHUWAN MOHAN SINGH Vs. MEENA AND OTHERS,
reported in (2015) 6 SCC 353, it was held that, granting of
maintenance to wife is for her sustenance. Sustenance
does not mean animal existence, but signifies leading life
in a similar manner, as she would have lived in the house
of her husband. The relevant paragraph is extracted
below:
7. At the outset, we are obliged to reiterate the
principle of law how a proceeding under Section 125 of
the Code has to be dealt with by the court, and what is
the duty of a Family Court after establishment of such
courts by the Family courts Act, 1984. In Dukhtar Jahan
v. Mohd. Farooq, reported in (1987) 1 SCC 624, the
Court opined that;
"16. …Proceedings under Section 125 [of the
Code), it must be remembered, are of a summary nature
and are intended to enable destitute wives and children,
the latter whether they are legitimate or illegitimate, to
get maintenance in a speedy manner.
8. A three-Judge Bench in Vimala (K) v.
Veeraswamy (K), while discussing about the basic
purpose under Section 125 of the Code, opined that:
(SCC p. 378, para 3)
"3. Section 125 of the Code of Criminal Procedure
is meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter to the
deserted wife."
9. A two-Judge Bench in Kirtikant D. Vadodaria
v. State of Gujarat, while adverting to the dominant
purpose behind Section 125 of the Code, ruled that:
(SCC p. 489, para 15)
"15.... While dealing with the ambit and scope of
the provision contained in Section 125 of the Code, it has
to be borne in mind that the dominant and primary
object is to give social justice to the woman, child and
infirm parents, etc. and to prevent destitution and
vagrancy by compelling those who can support those
who are unable to support themselves but have a moral
claim for support. The provisions in Section 125 provide
a speedy remedy to those women, children and destitute
parents who are in distress. The provisions in Section
125 are intended to achieve this special purpose. The
dominant purpose behind the benevolent provisions
contained in Section 125 clearly is that the wife, child
and parents should not be left in a helpless state of
distress, destitution and starvation."
10. In Chaturbhuj v. Sita Bai, reiterating the
legal position the Court held: (SCC p. 320, para 6)
"6. Section 125 Cr.P.C is a measure of social
justice and is specially enacted to protect women and
children and as noted by this Court in Capt. Ramesh
Chander Kaushal v. Veena Kaushal falls within
constitutional sweep of Article 15(3) reinforced by Article
39 of the Constitution of India. It is meant to achieve a
social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply
of food, clothing and shelter to the deserted wife. It
gives effect to fundamental rights and natural duties of a
man to maintain hi wife, children and parents when they
are unable to maintain themselves.
The aforesaid position was highlighted in
Savitaben Somabhai Bhatiya Vs. State of Gujarat.
11. Recently in Nagendrappa Natikar v.
Neelamma, it has been that it is a piece of social
legislation which provides for a summary speedy relief by
way of maintenance to a wife who is unable to maintain
herself and her children.
12. The Family Courts have been established for
adopting and facilitating the conciliation procedure and to
deal with family disputes in a speedy and expeditious
manner. A three-Judge Bench in KA Abdul Jaleel T.A.
Abdul Jaleel v. T.A.Shahida, while highlighting on the
purpose of bringing in the Family courts Act by the
legislature, opined thus (SCC p. 170, paragraph 10)
“10. The Family Courts Act enacted to provide for
the establishment of Family Courts with a view to
promote conciliation and secure speedy settlement of,
disputes relating to marriage and family affairs and for
matters connected therewith."
13. The proceeding before the Family Court was
conducted without being alive to the purpose of Objects
and Reasons of the Act and the spirit of the provisions
under Section 125 of the Code. It is unfortunate that the
case continued years before the Family Court. It has
come to the notice of the Court that on certain occasions
the Family Courts have been granting adjournments i
routine manner as a consequence of which both the
parties suffer or, on certain occasions, the wife becomes
the worst victim. When such a situation occurs, the
purpose of the law gets totally atrophied. The Family
Judge is expected to be sensitive to the issues, for he is
dealing with extremely delicate and sensitive issues
pertaining to the marriage and issues ancillary thereto.
When we say this, we do not mean that the Family
Courts should show undue haste or impatience, but there
is a distinction between impatience and to be wisely
anxious and conscious about dealing with a situation. A
Family Court Judge should remember that the
procrastination is the greatest assassin of the lis before
it. It not only gives rise to more family problems but also
gradually builds unthinkable and Everestine bitterness
leads to the cold refrigeration of the hidden feelings, if
still left. The delineation of the lis by the Family Judge
must reveal the awareness and balance. Dilatory tactics
by any of the parties has to be sternly dealt with, for the
Family Court Judge has to be alive to the fact that the lis
before him pertains to emotional fragmentation and
delay can feed it to grow. We hope and trust that the
Family Court Judges shall remain alert to this and decide
the matters as expeditiously as possible keeping in view
the Objects and Reasons of the Act and the scheme of
various provisions pertaining to grant of maintenance,
divorce, custody of child, property disputes, etc.
14. While dealing with the relevant date of grant
of in Shail Kumari Dev v. Krishan Bhagwan Pathak, the
Court referred to the Code of Criminal Procedure
(Amendment) Act, 2001 (50 of 2001) and came to hold
Even after the amendment that (SCC p. 639, para 21)
“21. …… Even after the amendment of 2001, an
order for payment of maintenance can be made by a
Court either from the date of the order or where an
express order is made to pay maintenance from the date
of application, then the amount of maintenance can be
paid from that date i.e. from the date of application.”
The Court referred to the decision in Krishna Jain
v. Dharam Raj Jain, wherein it has been stated that:
(Shail Kumari Devi case, SCC p. 645, para 37)
37. To hold that, normally maintenance should be
made payable not from the date of the application unless
from the date of the order such order is backed by
reasons would amount to inserting something more in
the sub-section which the legislature never intended. The
(High Court had] observed that it was unable to read in
sub-section (2) laying down any rule to award
maintenance from the date of the order or that the grant
from the date of the application is an exception."
The High Court had also opined that whether
maintenance is granted from the date of the order or
from the date of application, the Court is required to
record reasons as required under sub-section (6) of
Section 354 of the Code.
15. After referring to the decision in Krishna
Jain, the Supreme Court adverted to the decision of the
High Court of Andhra Pradesh in K. Sivaram V. K.
Mangalamba wherein it has been ruled that the
maintenance would be awarded from the date of the
order and such maintenance could be granted from the
date of the application only by recording special reasons.
The view of the learned Single Judge of the High Court of
Andhra Pradesh stating that it is a normal rule that the
Magistrate should grant maintenance only from the date
of the order and not from the date of the application for
maintenance was not accepted by this Court. Eventually,
the Court ruled thus: (Shail Kumari Devi case, SCC p.
647, para 43)
"43. We, therefore, hold that while deciding an
application under Section 125 of the Code, a Magistrate
is required to record reasons for granting or refusing to
grant maintenance to wives, children or parents. Such
maintenance can be awarded from the date of the order,
or, if so ordered, from the date of the application for
maintenance, as the case may be. For awarding
maintenance from the date of the application, express
order is necessary. No special reasons, however, are
required to be recorded by the court. In our judgment,
no such requirement can be read in sub-section (1) of
Section 125 of the Code in absence of express provision
to that effect."
5. It is also useful to refer to the law declared by
the Hon’ble Apex Court in the case of NAGENDRAPPA
NATIKAR VS. NEELAMMA, reported in (2014) 14 SCC 452,
wherein, at paragraph 10 of the Judgment, it is held as
follows:
“10. Section 125 of Cr.P.C. is a piece of social
legislation which provides for a summary and speedy
relief by way of maintenance to a wife who is unable to
maintain herself and her children. Section 125 is not
intended to provide for a full and final determination of
the status and personal rights of the parties, which is in
the nature of a civil proceedings, though are governed by
the provisions of Cr.P.C. and the order made under
Section 125 of Cr.P.C. is tentative and is subject to final
determination of the rights in a civil Court.”
6. In the case of SHAMIMA FAROOQUI Vs. SHAHID
KHAN, reported in (2015)5 SCC 705, the Hon’ble Supreme
Court extensively dealt with the scope and ambit of
Section 125 of Cr.P.C. In the said judgment, it is
observed thus:
“It is limpid that the obligation of the
husband is on a higher pedestal when the question
of maintenance of wife and children arises. When
the woman leaves the matrimonial home, the
situation is quite different. She is deprived of many
a comfort. Sometimes the faith in life reduces.
Sometimes, she feels she has lost the tenderest
friend. There may be a feeling that her fearless
courage has brought her the misfortune. At this
stage, the only comfort that the law can impose is
that the husband is bound to give monetary
comfort. That is the only soothing legal balm, for
she cannot be allowed to resign to destiny.”
7. Having taken note of the core question to be
answered in this petition relating to jurisdiction of the
applicant under Section 125 of Cr.P.C., it is relevant to
extract Section 126(1)(b) and (c), of Cr.P.C., which relate
to the maintenance of wife and children under Section 125
of Cr.P.C. The same is extracted below:
“126. Procedure – (1) Proceedings under
Section 125 may be taken against any person in
any district –
(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.”
8. In this regard it is apt to consider the law
declared by the Apex Court in the case of VIJAY KUMAR
PRASAD VS. STATE OF BIHAR AND OTHERS, reported in
(2004) 5 SCC 196, wherein, the observation made at
paragraphs 11 to 15 read as under:
“11. The position of law relating to proper
jurisdiction was highlighted by this Court Jagir Kaur and
Another v. Jaswant Singh (AIR 1963 SC 1521) as
follows:
"The crucial words of the sub-section (8) 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."
12. 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".
13. 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.
14. 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.
15. 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.”
(Emphasis supplied)
9. At this juncture, with respect to the language
employed under Sections 125 and 126 of Cr.P.C. relating
to territorial jurisdiction, seeking maintenance by the
applicant, it is useful to refer the law declared by the Apex
Court in the case of JAGIR KAUR AND ANOTHER VS.
JASWANT SINGH, reported in AIR 1963 SC 1521, wherein,
the Apex Court at paragraphs 5, 6 and 9 to 12 has
observed thus:
“5. The only question in the appeal is whether
the Magistrate of Ludhiana had jurisdiction to entertain
the petition filed under s. 488 of the Code of Criminal
Procedure. The question turns upon the interpretation of
the relevant provisions of s. 488(8) of the Court, which
demarcates the jurisdictional limits of a Court to
entertain a petition under the said section. Section 488
(8) of the Code reads :
"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.".
The crucial words of the sub-section are, "resides",
"is" and "where lie 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.
6. The first word is "resides". A wife can file a
petition against her husband for maintenance in a Court
in the District where he resides. The said word has been
subject to conflicting judicial opinion. In the Oxford
Dictionary it is defined as : "dwell permanently or for a
considerable time; to have one's settled or usual abode ;
to live in or at a particular lace". The said meaning,
therefore, takes in both a permanent dwelling as well as
a temporary living in a place. It is, therefore, capable of
different meanings, including domicile in the strictest and
the most technical sense and a temporary residence.
Whichever meaning is given to it, one thing is obvious
and it is that it does not include a causal stay in, or a
flying visit to, a particular place. In short, the meaning of
the word would, in the ultimate analysis, depend upon
the context and the purpose of a particular statute. In
this case the context and purpose of the present statute
certainly do not compel the importation of the concept of
domicile in its technical sense. The purpose of the statute
would be better served if the word "resides" was
understood to include temporary residence. The
juxtaposition of the words "is" and "'last resided" in the
sub-Section also throws light on the meaning of the word
"resides". The word "'is", as we shall explain later,
confers jurisdiction on a Court on the basis of a causal
visit and the expression "last resided", about which also
we have something to say, indicates that the Legislature
could not have intended to use the word "resides" in the
technical sense of domicile. The word "resides" cannot be
given a meaning different from the word "resided" in the
expression "'last resided" and, therefore, the wider
meaning fits in the setting in which the word "resides"
appears. A few of the decisions cited at the Bar may be
useful in this context.”
9. The cognate expression "last resided" takes
colour from the word "'resides" used earlier in the subsection.
The same meaning should -be given to the word
" resides" and the word "'resided", that is to say, if the
word "resides" includes temporary residence, the
expression "last resided" means the place where the
person had his last temporary residence. But it is said
that even on that assumption, the expression can only
denote the last residence of the person with his wife in
any part of the world and that it is not confined to his
last residence in any part of India. If the words "where
he last resided with his wife" are construed in vacuum,
the construction suggested by the learned counsel for
the respondent may be correct; but by giving such a
wide meaning to the said expression we would be giving
extra territorial operation to the Code of Criminal
Procedure. Section 2 (1) of the Code extends the
operation of the Code to the whole of India except the
States of Jammu & Kashmir; that is to say, the
provisions of the Code, including s. 488 (8) thereof, have
operation only throughout the territory of India, except
the States of Jammu & Kashmir. If so, when sub-s. (8) of
s. 488 of the Code, prescribing the limits of Jurisdiction,
speaks of the last residence of a person with his wife, it
can only mean his last residence with his wife in the
territories of India. It cannot obviously mean his residing
with her in a foreign country, for an Act cannot confer
jurisdiction on a foreign court. It would, therefore, be a
legitimate construction of the said expression if we held
that the district where be last resided with his wife must
be a district in India.
10. In In re Drucker (No. 2) Basden, Ex Parte
the words "or in any other place out of England," in subs.
(6) of s. 27 of the Bankruptcy Act, 1883, fell to be
construed. The words were wide enough to enable a
Court in England to order that any person who, if in
England, would be liable to be brought before it under
the section, shall be examined in any place out of
England, including a place not within the jurisdiction of
the British Crown. The Court held that the words must be
read with some limitation and the jurisdiction conferred
by that section does not extend to places abroad which
are not within the jurisdiction of the British Crown.
Wright, J., rejecting the wider construction sought to be
placed on the said words, observed at p. 211 :
"It seems to me that that restriction in prima facie
necessary. It is impossible to suppose that the
Legislature intended to empower the Court to order the
examination of persons in foreign countries ; for
instance, in France or Germany."
In Halsbury's Laws of England, Vol. 36, 3rd edn.,
at p. 429, it is stated :
"........the presumption is said to be that
Parliament is concerned with all conduct taking place
within the territory or territories for which it is legislating
in the particular instance, and with no other conduct. In
other words, the extent of a statute, and the limits of its
application, are prima facie the same."
It may be mentioned that the said observations
are made in the context of Parliament making a law in
respect of a part of the territory under its legislative
jurisdiction. If it has no power at all to make a law in
respect of any foreign territory, the operation of the law
made by it cannot obviously extend to a country over
which it has no legislative control. It is, therefore, clear
that s. 488(8) of the Code, when it speaks of a district
where a person last resided with his wife, can only mean
"where he last resided with his wife in any district in
India other than Jammu & Kashmir."
11. The third expression is the word "is". It is
inserted between the words "resides" and "last resided".
The word, therefore, cannot be given the same meaning
as the word "resides" or the expression "last resided"
bears. The meaning of the word is apparent if the
relevant part of the subsection is read. It reads :
"Proceedings under this section may be taken against
any person in any district where he...... is......" The verb
"is"' connotes in the context the presence or the
existence of the person in the district when the
proceedings are taken. It is much wider than the word
"resides": it is not limited by the animus manendi of the
person or the duration or the nature of his stay. What
matters is his physical presence at a particular point of
time. This meaning accords with the object of the
chapter wherein the concerned section appears. It is
intended to reach a person, Who deserts a wife or child
leaving her or it or both of them helpless in any
particular district and goes to a distant place or even to a
foreign country, but returns to that district or a
neighbouring one on a casual or a flying visit. The wife
can take advantage of his visit and file a petition in the
district where he is during his stay. So too, if the
husband who deserts his wife, has no permanent
residence, but is always on the move, the wife can catch
him at a convenient place and file a petition under s. 488
of the Code. She may accidentally meet him in a place
where he happens to come by coincidence and take
action against him before lie leaves the said place. This is
a salutary provision intended to provide for such
abnormal cases. Many illustrations can be visualized
where the utility of that provision can easily be
demonstrated.
12. To summarize : Chapter XXXVI of the Code
of Criminal Procedure providing for maintenance of wives
and children intends to serve a social purpose. Section
488 prescribes alternative forums to enable a deserted
wife or a helpless child, legitimate or illegitimate, to get
urgent relief. Proceedings under the section can be taken
against the husband or the father, as the case may be, in
a place where he resides, permanently or temporarily, or
where he last resided in any district in India or where he
happens to be at the time the proceedings are initiated.
10. On perusal of the aforementioned finding
recorded by Hon’ble Supreme Court, since Section 125 of
Cr.P.C is a social measure providing immediate relief to
the destitute wife and children, prima-facie, accepting the
duly sworn affidavit by aggrieved parties (wife and
children) that they are residing away from the matrimonial
home and the address shown in the affidavit is to be
accepted. Indeed the Family Court ought to have accepted
the address provided in the petition supported by an
affidavit by the petitioners and should have issued notice
to the respondent. Raising objection with regard to
residential proof of the petitioners at that juncture itself
would defeat the very purpose of scope of Section 125 of
Cr.P.C. Undisputably, the affidavit is supported by an
application and the petition is preferred by the wife and
children seeking maintenance. It is also recorded by the
deponent in the said affidavit that they are residing
separately from the husband/father and therefore, I am of
the view that raising objection at the initial stage, directing
the petitioners to provide a residential address with regard
to the jurisdiction aspect, would defeat the entire
legislative intention of Section 125 of Cr.P.C. May be, the
jurisdictional aspect is required with regard to the
competency of the Court, however, such a requirement
may be an exception to the provisions under Section 125
of Cr.P.C. for the reasons mentioned above. If the
applicant/petitioner filed petition along with an affidavit
disclosing their residential address in the duly sworn
affidavit, that itself is sufficient to continue the
proceedings to provide immediate relief to the destitute
wife/children. Accordingly, I pass the following order:
ORDER
(i) The petition is allowed.
(ii) Impugned order dated 05.11.2020 in
Crl. Misc. No.145/2020 on the file of the
Family Court, Dharwad, is set aside and the
matter is remanded to the Family Court for
fresh consideration after providing
opportunity to the petitioners to prove their
residential status, in the light of the
observations made above.
(iii) In the event if such satisfactory proof is
provided by the petitioners, the Family Court
is requested to dispose of the petition at the
earliest, within an outer limit of eight months
from the date of receipt of this order.
(iv) The Family court is requested to issue
Court notice to the respondent-husband and
as the petitioner-wife and children are
represented by her counsel on record, the
petitioners shall appear before the Family
Court on 28.07.2022.
Sd/-
JUDGE
SVH
Print Page
No comments:
Post a Comment