Claim For Maintenance U/S 125 CrPC Lies Where Parties Reside, Not Places Where "Flying Visits" Are Made: MP High Court
The Madhya Pradesh High Court, Gwalior Bench has recently 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'.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...
The Madhya Pradesh High Court, Gwalior Bench has recently 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'.
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.
Justice G.S. Ahluwalia was 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.
The case of the Petitioner was that the Respondent/wife had filed an application under Section 125 CrPC before the Family Court, Gwalior against him, seeking maintenance for her and their minor daughter. The Petitioner moved an application against her under OVII R11 CPC, wherein he had argued that since the Respondent and the daughter were residing in Delhi, the cause of action did not arise at Gwalior. He had further submitted that he and the Respondent got married in Bhopal and were residing in Bhopal before getting separated.
In order to bring the matter under the jurisdiction of Gwalior, he added, the Respondent had mentioned the address of her parents. Therefore, he had asserted that the court did not have jurisdiction to entertain the application for maintenance and the same was liable to be dismissed for want of jurisdiction.
The Petitioner had also brought the attention of the Court to the Respondent's petition under Section 9 and 27 of the Hindu Marriage Act, wherein she mentioned her address to be of Delhi and that she was working there as well. This, the Petitioner had argued, made it clear that she was not a resident of Gwalior.
The Respondent in her reply had submitted that after she was deserted by the Petitioner, she moved to her parental home in Gwalior. She stated that she was merely serving at Delhi, whereas her permanent address was at Gwalior. Therefore, she had contended that the lower court had jurisdiction to entertain the application.
The family court rejected the application of the Petitioner on the ground that since the Respondent/wife had her parental home in Gwalior, the court had jurisdiction to hear the application.
Examining the submissions of the parties and documents on record, the Court observed that the Respondent was wrongly interpreting the word 'resides' under Section 126 CrPC-
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 the 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.
Relying on the decision of the Madras High Court in K. Mohan v. Balakanta Lakshmi, the Court held that a casual stay or a flying visit to a particular place cannot be treated as a part of the word "reside". Further referring to the submissions of the Respondent, the Court 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.
With the aforesaid observations, the Court allowed the revision and accordingly, the impugned order of the lower court rejecting the application of the Petitioner under OVII R11 CPC was set aside. The Court further held that the family court, Gwalior did not have jurisdiction to entertain the application of the Respondent under Section 125 CRPC.
Case Tite :Nirman Sagar Vs. Smt. Monika Sagar Chaudhari and another