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ABDUL MALIK Vs. NASHIM AKHTAR

Judgements favoring men

 
Court: GAUHATI HIGH COURT

Bench: JUSTICE Amitava Roy

ABDUL MALIK Vs. NASHIM AKHTAR On 4 December 2008

Law Point:
Intention and element of permanence construed to be determining factors to identify place to be one of residence of person for purpose of Section 126 CPC.

 

 

JUDGEMENT

 

The order dated 14.6.2007 and 6.9.2007 passed by the learned Family Court, Guwahati in Case No. FC (Crl) 341/2006 have been impugned in the instant petition.

2. I have heard Mr. C. Goswami, learned Counsel for the petitioner and Mr. D.K. Das, learned Counsel for the respondent.

3. The facts in brief would be necessary. The parties are a married couple, though their ‘matrimonial relationship presently is under strain. The opposite party claiming monthly maintenance for her from the petitioner husband had filed an application under Section 125 of the Code of Criminal Procedure (for short hereafter referred to as ‘Code’) before the Family Court, Guwahati. For the issue under adjudication, the factual details are inessential and, therefore, are not being dilated upon. In her said application, the opposite party wife disclosed her place of stay as hereunder:

“Presently residing at Notboma Road, Sijubari (Near Dargah) Hatigaon, P. S. Dispur (P. P. Hatigaon), Dist. Kamrup, Assam.”

4. The petitioner husband in his response, while resisting the claim for monthly maintenance took a preliminary objection with regard to the jurisdiction of the learned Court below contending that under Section 7 of the Family Courts Act, 1982 read with Section 126 of the Code, the application ought to have been filed in the Court of the learned Chief Judicial Magistrate, Mangaldoi, Darrang. The petitioner husband underlined that in view of the fact that the opposite party wife resides as contemplated in Section 126 of the Code at that place and not within the territorial limits of the Family Court at Guwahati, her application was not legally sustainable.

5. The learned Family Court by the impugned order dated 14.6.2007, having negated the objection, the petitioner is before this Court for redress. The learned Court below while passing the impugned order took note of the prescriptions of Section 126 of the Code to hold against the petitioner husband by accepting the version of the opposite party wife that she, at the time of filing of the application, was residing at Sijubari under Dispur Police Station within its territorial jurisdiction.

6. The petitioner husband while reiterating his objection to the maintainability of the application of the opposite part wife on the facts as narrated in his written statement filed before the learned Court below has supplemented the averments by an additional affidavit disclosing the address of the opposite party wife to be within with the local limits of Police Station Sipajhar, Mangaldoi in the District of Darrang. According to him, the opposite party wife in the meantime has lodged an FIR against him on 8.1.2006 wherein she had disclosed her address to be as follows:

“Ms. Nashim Akhtar,

W/o Md. Abdul Malik of Byaspara,

P. S. Sipajhar.”

She has also filed a complaint petition in the Court of the learned Chief Judicial Magistrate, Darrang, Mangaldoi registered as CR No. 3680/07 reflecting her residential address as hereunder:

“NashimAkhtar W/o Md.

Abdul Malik, Vill. Singimari, P. S. Sipajhar, Dist. Darrang, Assam’.”

The petitioner has insisted that the opposite party is continuously residing at village Singimari under Police Station-Sipajhar in the District of Darrang and her casual stay at Sijubari under Dispur Police Station even if noticed, can by no means tantamount to residence as contemplated in Section 126 of the Code.

7. Mr. Goswami has argued that as the materials on record unmistakably demonstrate that at all relevant times the residence of the opposite party wife had been within the territorial limits of the learned Chief Judicial Magistrate, Darrang, the learned Family Court at Guwahati lacked jurisdiction to entertain the application for maintenance filed by the opposite party wife and in that view of the matter, the impugned order is non est in law and is liable to be interfered with.

8. Mr. Das, in reply has urged that as the opposite party-wife is presently residing at Sijubari under Dispur Police Station being in search of an avocation for life, for all intents and purposes, she is a resident of that place and, therefore, the learned Family Court, Guwahati is endowed with the jurisdiction to entertain her application for maintenance. The learned Counsel, however, could not deny the assertions made on behalf of the petitioner respondent that her paternal home is at Singimari, Mangaldoi and that she had disclosed her address as above in the aforementioned two cases.

9. The pleadings of the parties and the arguments advanced have received the due consideration of this Court. Section 7 of the Family Court Act, 1984 bestows the Family Court with the jurisdiction inter alia of a Magistrate of the First Class under Chapter-IX of the Code.

Section 126 of the Code enumerates the places where the proceedings under Section 125 can be entertained as follows:

(1) (a) where husband resides;

(b) where the husband or his wife resides, or

(c) where the husband last resided with his wife or as the case may be, with the mother of the illegitimate child.

The opposite party wife has endeavoured to maintain her application under Section 125 of the Code contending that her case comes within the purview of Clause (b). In other words, she contends in favour of the jurisdiction of the learned Family Court on the ground that the application is entertainable by it, her place of residence being within its territorial limits. It cannot be gainsaid that the matrimonial as well as the paternal houses of the opposite party wife are in village Singimari, Police Station Sipajhar, Mangaldoi.

While examining the purport of the expression ‘resides’ used in Section 126 of the Code, the Madras High Court in K. Mohan, Petitioner v. Balakanta Lakshmi, Respondent has propounded that the main criteria to determine the same is the intention or the animus manendi of the person concerned. While enunciating that the expression would permissibly include temporary residence as well, it was adjudged that it would not comprehend a flying visit or a brief stay. The intention and an element of permanence were thus construed to be the determining factors to identify a place to be one of residence of a person for the purposes under Section 126 of the Code.

10. On applying the above test, in the facts and circumstances of the case, this Court is constrained to hold that the flitting stay of the opposite party wife at Guwahati to facilitate her quest for a job for livelihood does not amount to her residence within the meaning of Section 126 of the Code. The learned Family Court rejected the plea against its jurisdiction on the ground that the opposite party wife was presently residing at Sijubari under Dispur Police Station. Having regard to the language employed in Section 126 of the Code, in the opinion of this Court, the interpretation of the expression “presently” as provided in the order dated 14.6.1927 is untenable.

11. In the above view of the matter, the plea raised on behalf of the petitioner husband has substance. Resultantly, the impugned orders are hereby interfered with. The proceedings registered on the application for Maintenance stand transferred to the Court of the learned Chief Judicial Magistrate, Darrang, Mangaldoi. On receipt of the records, the learned Chief Judicial Magistrate, Darrang would notify the parties and adjudicate the claim in accordance with law.

12. The petition stands allowed in the above terms. No costs.

Revision Petition allowed.

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