LexJAGIR KAUR & ANOTHER versus JASWANT SINGH
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- 2 S.C.R. SUPREME COURT REPORTS 73 offence under s. 121 of the Act but makes out an offence under s. 50(] I. P. C. I would therefore alter the conviction of the appellant for an offence under s. 121 of the Act to one under s. 50(] I. P. C., and maintain the sentence of Rs. 60/- fine in default of payment of which he wot1ld undergo rigorous imprisonment for two m0nths. Appeal dismissed. JAGIR KAUR & ANOTHER v. JASWANT SINGH (K. SuBnA RAo, RAGHUBAR DAYAL, and J. R. MunHOLKAR JJ.) Maintenance of Wives and children-Construction of stat!tte -JurisdicHon of the Magistrate lo entertain pet,ition- If a -mixed question of frict and law-If can be raised for the jirst t·ime before this Court-Code of Criminal Procedur«, 1898 (Act 5 of 1898), ss. 2(1), 488(8). The respondent who was born in the Ludhiana District wa• married ro the first appellant, He took up a job in Africa and after staying there for some time he ca1ne to India and stayed with his wife for 5 months. He then went to i\frica an,d after staying there for 5 or 6 years came to India and took the appellant with hiin to Africa and a daughter was born to them there. 'fhe appellant was sent back \Vith the child and she was staying in the District of l,udhiana \vi.th the child. It is ad- mitted that the respondent had bought property worth Rs. 25,000,'- in that District and that the petition for mainten- ance \Vas filed by the appellant and the notice was served on him while the respondent V\·as in that District. The respondent filed a. counter affidavit, obtained exemption fron1 personal appearance at the thne of hearing of that r~tition and there- after left for Africa. 1963 S!rvamlat .. v. State of U~ P . . Raghubar Dr1)'al J. 1963 February /3, 1963 Jagir Kaur v. Jaswant Singh 74 SUPREME COURT REPORTS [1964] VOL. The !st Class Magistrate Ludhiana held that he had jurisdiction to entertain the petition filed by the appellant under s. 488 of the Code of Criminal Procedure, 1898, as the appellant and the respondent had last resided in the District Ludhiana. He awarded for the wife's maintenance at the rate of Rs. JOO/- per month and fur the daughter at the rate of Rs. 50/· per month. A revision petition filed by the respondent before the Additional Sessions Judge was rejected. But the High Court holding that the !st Class Magistrate had no juris· diction to entertain the petition allowed the 1 evision petition filed by the respondent. The present appeal is by way of special leave granted by this Court. The main contention on behalf of the appellants before this Court was that the respondent having last resided with his wife in the District of Ludhiana and he having been there at the time when the petition under s. 488 was presented the Magistrate had jurisdiction to entertain the petition. It was further contended that the respondent having subniitted to the jurisdiction of the Magistrate «>uld not question his jurisdiction. Held, that Ch. XXVI of the Code of Criminal Procedure providing for maintenance of wife and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helple<S child, legitimate ur illegiti· mate to get urgent relief. Proceedings under the section can be taken against the husband or the father as the case mJ.y be, in a place \.Vhere he resides permanently or ten1porari1:1, or where he last resided in any District in India. or where he happens to be at the time the proceeding; are iuitiated. The expression "residesll implied something more than a brief visit but nut such continuity as to amount t;, domicile. Sampoornam v. N. Samlarani, (1952) 2 :VI. L.J. 573, referred to. A casual or flying visit to a place for a ternpor.>ry pur- pose was not covered hy the word residence. Khair-unnirsa v. Bashir Ahmad, ( 1929) LL. R. 53 Born. 781, F/nwers v. FltYll'ers, (1910) l. L. R. 32 All. 203 and Balakri"hna v. Sriknntq/11. Brii, A. I. R. 1942 :Vfad. 666. referred to. The soie test on the qne~tion of residence ,v.1s whet!te1 a party had anl1nn8 1uane11di or an intention to stay for an in. definite period at the place. 2S.C.R. SUPREME COURT REPORTS 75 Charan Das v. Surasti Bai, A. I. R. 194-0 Lah. 449 referred to. The appellant not having raised the plea of submission to jurisdiction either in the pleadings or in any of the courts below will not in the absence of special circumstances be
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