VIJAY KUMAR PRASAD versus STATE OF BIHAR AND ORS.

Citation: [2004] 3 S.C.R. 935 · Decided: 07-04-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

VIJA Y KUMAR PRASAD 
A 
V. 
STATE OF BIHAR AND ORS. 
APRIL 7, 2004 
[DORAISWAMY RAJU AND ARIJIT PASA YAT, .IJ.] 
B 
Code of Criminal Procedure, 1973: 
Ss. 125(/)(a) and 126(/)(a)-Petition against son for maintenance filed 
by father in the court the jurisdiction under which the latter resides- C 
Jurisdiction of court challenged by son and petition filed for transfer of the 
case to the place where he practises and resides-Held, the benefit given to 
wife and children to initiate proceedings at the place where they reside not 
given to parents-Case transferred to the Sessions Division where the son 
practised and resided at the time of presentation of the petition. 
D 
Words and Phrases: 
Words "is", "resides" and "last resided" as occurring in clauses (a), 
(b) and (c) respectively of s. I 26(1), Cr.P.C.-Connotation of 
Respondent No. 1, the father of the appellant, filed a petition in the 
court at Siwan in the State of Bihar, under s.125 of the Code of Criminal 
Procedure, 1973 claiming maintenance from the appellant. The son filed 
an application for transfer of the case from Siwan to Patna, inter alia, on 
E 
the ground that the Court at Siwan had no jurisdiction as he was 
practising and residing at Patna. The High Court rejected the application. F 
Aggrieved, the son filed the present appeal. 
It was contended for the appellant that in the instant case it would 
not be the residence of the claimant which would determine the 
jurisdiction, but the question of jurisdiction would be decided on the basis 
of the place where the person from whom maintenance was claimed G 
resided. 
Allowing the appeal, the Court 
HELD: I.I The benefit given to the wife and the children to initiate 
935 
II 
936 
SUPREME COURT REPORTS 
[2004] 3 S.C.R. 
A proceedings under s.125 of the Code of Criminal Procedure, 1973 at the 
place where they reside is not given to the parents. Unlike clauses (b) and 
(c) of s. 126(1) of the Code, an application by the father or the mother 
claiming maintenance has to be filed where the person from whom 
maintenance is claimed lives. A bare reading of the section makes it clear 
B that the parents cannot be placed on the same pedestal as that of the wife 
or the children for the purpose of s.126 of the Code. 
[939-D; 939-F; 939-D) 
1.2. The expression "is" occurring in clause (a) of s.126 (I) of the 
Code cannot be given the same meaning as the word "resides" or the 
C expression "last resided" used in clauses (b) and (c) respectively. It 
connotes in the context the presence or the existence of the persons in the 
district where the proceedings are taken. It is wider in its concept than 
the word "resides" and what matters is his physical presence at the 
particular point of time. The expression "is" cannot be construed to be a 
Oeeting presence though it may not be necessarily for considerable length 
D of time as the expression "resides" may require. The stand of the appellant 
is that be practises in Patna and was not present in Siwan physically when 
the application was filed for maintenance. No finding has been recorded 
by the High Court on this particular aspect which needs a factual 
adjudication. [939-G-H; 940-A, B, A) 
E 
Mst. Jagir Kaur and Anr. v. Jaswant Singh, AIR (1963) AC 1521 and 
F.S. Gandhi (dead) by Lrs. v. Commissioner of Wealth Tax, Allahabad, AIR 
(1991) SC 1866, referred to. 
1.3. Respondent No. 2, the father has indicated that at the time of 
F presentation of the petition his son was practising in Patna High Court. 
If so, tlte son could not have been physically present at Siwan, whatever 
extended meaning may be given to the expression "is". In view of this, 
the Court at Siwan has no jurisdiction to deal with the petition. The case 
is transferred to the Sessions Division of Patna and Sessions Judge would 
pass an order to place the matt1:,r before the court of competent 
G jurisdiction. [940-A-B; 940-D[ 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
>-
43 I of 2004. 
,... 
H 
Froin the Judgment and Order dated 12.5.2003 of the Patna High Court 
in Cr!. M. No. 871 of 2003. 
V.K. PRASADv. STATE OF BIHAR [PASAYAT . .I.) 
937 
t > 
A. Sharan, and Amit for Ugra Shankar Prasad for the Appellant. 
A 
Ms. Sunit R. Singh for B.B. Singh Kishore Mishra and Ms. Apama Jha 
for the Respondent. 
The Judgment of the Court was delivered by 
B 
ARIJIT PASAYA'"{, J. Leave granted. 
The present case reflects a sad state of affairs, as it involves a fight 
between the father and his
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