Full Judgment
D. Sreedevi, J.
1. This R.P. has been filed against the order in MC No. 117/95 of the Munsif (JFCM), Taliparamba.
2. Revision petitioner is the daughter of the respondent. The respondent filed MC 117/95 on the file of JFCM, Taliparamba against the petitioner for maintenance under Section 125, Criminal Procedure Code. The case of the petitioner in that case was that she was deserted by her husband and hence she was forced to live separately. She claimed maintenance at the rate of Rs. 500/- per month. Petitioner who was the respondent in MC 117/95 filed a counter stating that the petition is not maintainable as she is leading an immoral life and that she has been living separately from her husband for more than a period of 13 years without any justifiable reason. Respondent was awarded Rs. 175/- p.m. towards maintenance in another MC filed by her against her husband. Hence she prayed for the dismissal of the case.
3. Learned Magistrate after taking evidence awarded Rs. 200/- per month towards maintenance of the petitioner. Aggrieved by the said order the respondent has filed this R.P.
4. Learned Counsel Mr. K.V. Sohan appearing for the petitioner submitted that the order of the Magistrate directing the respondent to pay maintenance is irregular, improper and against the provisions of law. Admittedly, the respondent filed M.C. against her husband and an award has been passed in her favour allowing her to receive Rs. 175 p.m. from her husband. It is also submitted that since she is getting maintenance from her husband she is not entitled to file another case for maintenance from her daughter. Another argument advanced is that the Judicial Magistrate, Taliparamba has no jurisdiction to entertain the application as the respondent is residing at Trivandrum.
5. Learned Counsel for the respondent invited my attention to Section 462, Criminal Procedure Code and also a decision reported in Raj Kumari Vijh v. Devi Raj Vijh, AIR 1977 SC 1101. Section 462 provides that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in wrong session, division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. The Supreme Court had occasion to deal with this question in Rajkumari's case (supra) wherein the Court held as follows :
'There are two types of jurisdiction of a Criminal Court, namely, (1) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (2) its territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the letter is not of a peremptory character and is curable under Section 462, Criminal Procedure Code (corresponding to Section 531 of the old Act). Territorial jurisdiction is provided 'just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court'. Sub-section (8) of Section 488 in fact provides that proceedings under the 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'.'
6. Thus, the argument that the Court which passed the order has no territorial jurisdiction is not tenable. The Karnataka High Court in Ananth Gopal Pai v. Gopal Narayan Pai, 1985 Crl. LJ 152 (Kar.), held that the petitioner can approach the Court within whose jurisdiction he resides as that Court will have the jurisdiction to entertain the claim and deal with it on merits. Therefore, I find that the Judicial Magistrate, Taliparamba has the jurisdiction to entertain the petition as the petitioner is residing within the jurisdiction of the Court.
7. The next argument advanced by Mr. Sohan is that as the respondent is getting maintenance as per the order of the Court under Section 125, Criminal Procedure Code, from her husband, she cannot file another petition claiming maintenance from her daughter. Admittedly, the wife is getting only Rs. 175/- p.m. from the husband, who was a railway employee at the time of passing the order. Later he retired from service. Petitioner filed an application under Section 126, Criminal Procedure Code, to enhance the rate of maintenance. That was dismissed. Thus, at present the wife is getting only Rs. 175/- per month for maintenance. That is not sufficient for her hand to mouth existence. Considering the cost of living and price-hike even the maximum amount provided under Section 125, Criminal Procedure Code itself is very low. The right to live is a fundamental right guaranteed under Article 21 of the Constitution of India. With the meagre amount of Rs. 175/- p.m. she is notable to survive. Therefore, she filed M.C. 117/95 claiming maintenance from her daughter who is an employee in the Accountant General's Office. The Court has awarded only Rs. 200/- per month. Thus the total amount awarded comes to only 375/-. Petitioner was awarded Rs. 175/- p.m. in any earlier case considering the financial capacity of the husband and also the number of persons whom her husband has to maintain. Probably that may be the reason for rejecting the wife's claim for getting enhanced maintenance. The wife is entitled to get maintenance from the daughter if she is employed. Therefore, in order to realise some more amount for her livelihood she is entitled to file a case against the daughter. I do not find any illegality in the order passed by the Court below in fixing the maintenance at the rate of Rs. 200/- per month and hence there is no reason to interfere with the order in MC 117/95.
In the result, this R.P. is dismissed.