Judgment:
1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE17H DAY OF OCTOBER, 2014 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.44844/2014 (GM-FC) BETWEEN: Mr. FRANCIS J.
LOPEZ S/O Mr. JOSEPH LOPEZ, AGED ABOUT31YEARS, R/AT NO.601, EMERALD HEIGHTS, F.V. HOMES SECTOR15 PLOT14TO17 RAIGARH KALAMBOLI, NAVI MUMBAI – 410 218. (BY SRI M. VISHWAJITH RAI, ADV.) AND: Mrs. PRIMA VIOLET FERNANDES W/O Mr. FRANCIS J.
LOPEZ, AGED ABOUT28YEARS, R/AT NO.402, DIARA RESIDENCY, NEAR ST. DOMINICS CHURCH, St. ANTONY COLONY, ASHOKNAGAR, URWA, MANGALORE - 6. ... PETITIONER ... RESPONDENT2THIS PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS AND QUASH THE ORDER
DATED0107.2014 MADE IN CRL.M.C.NO.53/2013 PASSED BY THE FAMILY COURT AT D.K., MANGALORE, VIDE ANNEXURE-A. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This writ petition is directed against an order dated 01.07.2014 passed by the Prl. Judge, Family Court, D.K., Mangalore in Crl.M.C.No.53/2013, overruling the objection raised by the petitioner that it has no jurisdiction to entertain and try the case.
2. The petitioner and the respondent are estranged couple. Their marriage was solemnized on 13.06.2010. Alleging desertion etc., the petitioner served a notice dated 14.10.2013 on the respondent. Crl.M.C.No.53/2013 was filed on 12.11.2013 by the respondent, in the Family Court, D.K., Mangalore under S.125 of Criminal Procedure Code (for short ‘the Code’). The petitioner filed statement of objections on 03.02.2014. In view of the pleading of the petitioner that the Family 3 Court, D.K., Mangalore has no territorial jurisdiction to entertain and try the case and based on the submission made by the petitioner’s advocate, the said issue was treated as a preliminary issue and was answered against the petitioner on 01.07.2014. The said order has been assailed in this writ petition.
3. Sri M.Vishwajith Rai, learned advocate, contended that the Family Court at D.K., Mangalore has no jurisdiction to entertain and deal with Crl.M.C.No.53/2013, in view of the fact that the marriage between the parties took place at Mumbai and the parties last resided at Mumbai and that the respondent never resided in Mangalore Taluk and that her parents are from Bantwal. He submitted that the Court below has proceeded on an erroneous basis in interpreting the provisions of Ss. 125 and 126 of the Code and also S.7 of the Family Courts Act, 1984 (for short ‘the Act’). He further contended that the respondent having failed to produce any document with regard to her residence at Mangalore, at the time of filing 4 of the petition, placing of reliance on a notice dated 14.10.2013 served by the petitioner on the respondent, which being only a casual residence of the respondent, the Family Court could not have treated Mangalore as her place of residence. Learned counsel submitted that the impugned order being irrational and illegal calls for interference.
4. Since the question involved is only with regard to the jurisdiction of the Court in terms of S.126 of the Code and S.7 of the Act, as to the place where the petition can be filed, I have not noted the other facts stated in Crl.M.C.No.53/2013 and also the statement of objections filed to it.
5. The only question which I am called upon to consider is: “Whether the Court below is correct in overruling the objection of the petitioner with regard to its jurisdiction to entertain and try the case?.” 5 6. Marriage between the parties was solemnized on 13.06.2010 at “Our Lady of Visitation Church”, Navi Mumbai, as per the rites and rituals of Roman Catholic Church. Alleging desertion etc., by the respondent, the petitioner got served a notice dated 14.10.2013, in which it was alleged that the respondent had illicit relationship with a third person. Concededly, the said notice was sent to the respondent, to the address shown in the cause title of the petition in Crl.M.C.No.53/2013.
7. S.125 of the Code deals with the categories of persons who can claim maintenance.
8. S.126(1) of the Code being relevant for the purpose of this case, is reproduced herein below: “126. Procedure.– (1) 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 life, or as the case may be, with the mother of the illegitimate child.” (italicized for emphasis) 6 9. Clauses (a) and (b) of Sub-section (1) of S.126 relate to wife, under S.125 of the Code. The said provision makes it clear that the wife has been conferred with the right to claim maintenance at the place where she is residing on the date of the filing of the petition. In Vijay Kumar Prasad Vs. State of Bihar and Others, (2004) 5 SCC196 with regard to the difference in position with respect to claim by wife and children, to initiate proceeding under S.125 of the Code, at a place where they reside, Apex Court has held as follows: “11. The position of law relating to proper jurisdiction was highlighted by this Court in Jagir Kaur v. Jaswant Singh (AIR1963SC1521 as follows: (AIR pp. 1523-24, para
5) "The crucial words of 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."
7 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 on 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.” (italicized for emphasis) 10. In Darshan Kumari (Smt) Vs. Surinder Kumar, 1995 Supp (4) SCC137 the appellant, a divorcee from the 8 respondent, before divorce, filed an application for maintenance under S.125 r/w S.126 of the Code, in the Court of the Magistrate at Nuh. In that application, she stated that she resides in Nuh, with her brother and she had also given her address of Nuh. The respondent – ex- husband, challenged the jurisdiction of the Court, on the ground that she was not residing at Nuh and she was residing all along in New Delhi and, therefore, the Magistrate Court had no jurisdiction. Accepting the said plea, the Magistrate dismissed the application and a revision petition was filed against the said decision. The Sessions Judge allowed the revision petition. However, on a criminal petition filed by the respondent, High Court having allowed the petition by holding that the wife was residing in Delhi and never resided at Nuh, when assailed by the wife, while allowing the appeal, Apex Court has held as follows: “3. We have heard the counsel and gone through the entire record. We find that there is clear averment made by the appellant that she has been residing with her brother at Nuh. However, the High Court as well as the learned Magistrate have 9 come to the conclusion that she was not residing at Nuh because according to them that was not her permanent residence. There is also a misreading by the High Court of the petition filed by her for divorce. The High Court has stated that in the said petition she has given her address of Delhi. We have gone through the record and a copy of the petition filed by her and find that the address given be her is of Nuh. Even ignoring the said misreading, we find that Section 126 of the Code requires that the proceedings under Section 125 may be taken against any person in any district where he or his wife resides. The section does not require permanent residence at the said place. Even a temporary residence, so long as it is not casual, is sufficient to confer jurisdiction on the Magistrate at that place or of the district concerned. In this view of the matter, we are of the view that the High Court’s finding was incorrect. The appellant was entitled to prosecute the application in the Court of the learned Magistrate at Nuh where as per her averment in the application, she was residing and still resides. We, therefore, set aside the impugned decision of the High Court. We are informed that pursuant to the interim order of this Court dated 14-2-1994, the proceedings before the Magistrate have already commenced. The learned Magistrate will proceed with the case and decide the same according to law. The appeal is allowed accordingly.” 11. (Emphasis supplied by me) In Kumutham and another Vs. Kannappan, (1998) 5 SCC693 the petition filed under S.125 of the Code by the appellant No.1 – wife and appellant No.2 – daughter, against the respondent, was dismissed by the 10 Magistrate, on the view that he had no jurisdiction to entertain the petition, since respondent was not residing within his jurisdiction. A revision petition filed against the said order having been dismissed by the Sessions Judge and a criminal petition filed under S.482 of the Code having also been dismissed by the High Court, when the Apex Court was approached for relief, while allowing the appeal and setting aside the impugned orders and remanding the case to the Magistrate, it was held as follows: “3. It appears that the courts below have failed to take note of the provisions contained in Section 126 of the Cr.P.C.. Under the said section, it is permissible for proceedings under Section 125 to be taken against a 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 legitimate child. The present case falls under clause (b) of Section 126 Cr.P.C. since Appellant 1 was residing at Thuvakudi within the jurisdiction of the Judicial Magistrate. The application filed by the appellants could, therefore, be entertained by the said Magistrate and he was in error in dismissing the same on the ground that he had no jurisdiction to entertain the same.” 11 12. Sub-section (1) of S.7 of the Act confers jurisdiction on the Family Court with regard to civil matters is concerned. On and from the date on which the Family Court is established for any area, the suits or proceedings of the nature contemplated in Clauses (a) to (g) of the Explanation to Sub-section (1) of S.7 of the Act, shall be tried exclusively by the Family Court for that area. Family Court at D.K., Mangalore was established under Notification No.LAW/113 LCE, 2012 dated 15.03.2013 issued by the Government of Karnataka for the District of Dakshina Kannada having jurisdiction to the entire Mangalore Taluk. Crl.M.C.No.53/2013 was filed on 12.11.2013 in the Family Court at D.K., Mangalore.
13. Sub-section (2) of S.7 of the Act provides for jurisdiction of the Family Courts with regard to the relevant criminal matters and being relevant to this case is reproduced herein below: “7. Jurisdiction.– (1) *** (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- 12 (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment.” 14. Clause (b) of S.8 of the Act being relevant to this case, is reproduced herein below: “8. Exclusion of jurisdiction and pending proceedings.- Where a Family Court has been established for any area, - (a) * * * (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)”.
15. Concededly, petitioner served a notice dated 14.10.2013 on the respondent at the address shown in the cause title of Crl.M.C.No.53/2013. Thus, there is no doubt that the respondent is residing in the address shown in the cause title of the said case. Petition was filed in the Family Court at D.K., Mangalore, since, under S.8(b) of the Act, Magistrate’s jurisdiction under Chapter IX of the Code has 13 been excluded. Upon a conjoint reading of S.126(1) of the Code with S.7(2)(b) of the Act, it is clear that the Family Court at D.K., Mangalore has a jurisdiction to entertain and try the petition filed under S.125 of the Code, by the respondent. Above being the position, this writ petition is sans merit and deserves rejection. Ordered accordingly. Sd/- JUDGE ca