Jagir Kaur and Another vs Jaswant Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 143 of 1961

Decision Date: 13 February 1963

Coram: Raghubar Dayal, J.R. Mudholkar, Subba Rao

In the matter titled Jagir Kaur and Another versus Jaswant Singh, the Supreme Court of India delivered its judgment on the thirteenth day of February, 1963. The case was heard by a bench comprising Justice Raghubar Dayal, Justice J.R. Mudholkar, and Justice Subbarao K. The petitioners, identified as Jagir Kaur and another individual, brought the suit against the respondent, Jaswant Singh. The citation for this decision appears as 1963 AIR 1521 and 1964 SCR (2) 73, and it is referenced in subsequent reports such as RF 1970 SC 446 (9) and RF 1985 SC 945 (8). The principal statutory provision in dispute concerned the Maintenance of Wives and Children Act, specifically the interpretation of its provisions regarding the jurisdiction of a magistrate to entertain a petition under Section 488 of the Code of Criminal Procedure, 1898, as amended. The factual background disclosed that the respondent was a native of the Ludhiana district and had originally married the first appellant. After securing employment in Africa, the respondent returned to India and resided with his wife for a period of five months before again departing for Africa. During his subsequent stay in Africa lasting five or six years, the respondent returned to India accompanied by the appellant, and a daughter was born while they were abroad. The appellant was later sent back to Ludhiana with the child, and the child continued to live in that district. It was admitted that the respondent had purchased immovable property valued at twenty‑five thousand rupees in Ludhiana, and that the appellant filed a petition for maintenance while the respondent was present in the district. The petition was duly served, and the respondent filed a counter‑affidavit, obtained exemption from personal appearance at the hearing, and thereafter departed again for Africa. The First Class Magistrate of Ludhiana held that he possessed jurisdiction under Section 488 of the Code of Criminal Procedure, 1898, because both parties had last resided in Ludhiana. Consequently, the magistrate ordered maintenance for the wife at a rate of one hundred rupees per month and for the daughter at fifty rupees per month. The respondent challenged this order by filing a revision petition before the Additional Sessions Judge, which was dismissed. On appeal, the High Court reversed the lower court’s decision, holding that the First Class Magistrate lacked jurisdiction to entertain the petition. The present appeal reached the Supreme Court by way of a special leave petition. The appellants contended before this Court that the respondent’s last residence with his wife in Ludhiana, together with his presence in the district at the time the petition was filed, conferred jurisdiction upon the magistrate. They further argued that by submitting to the magistrate’s jurisdiction, the respondent could not later dispute that jurisdiction. The Court observed that Chapter XXVI of the Code of Criminal Procedure, which deals with the maintenance of wives and children, is intended to serve a social purpose, and the interpretation of Section 488 must be consistent with that purpose.

Section 488 of the Code of Criminal Procedure was enacted to enable a deserted wife or a helpless child, whether legitimate or illegitimate, to obtain urgent relief. The provision allows proceedings to be instituted against the husband or the father, as appropriate, in any place where that person resides permanently or temporarily, or in any district of India where he last lived, or even where he happens to be at the time the proceedings are started. The term “resides” was explained to mean more than a fleeting visit but less than a permanent domicile. In Sampoornam v. N. Sandaram (1952) 2 M. L. J. 573 the Court observed that a casual or fleeting visit for a temporary purpose does not satisfy the requirement of residence. Similar observations were made in Khairunnissa v. Baskir Ahmad (1929) I.L.R. 53 Bom. 781, Flowers v. Flowers (1910) 1 L.R. 32 All. 203, and Balakrishna v. Sakuntala Rai (1942) A.I.R. 666. The decisive test for determining residence was whether the party possessed “animus manendi,” that is, an intention to remain at the place for an indefinite period, as noted in Charan Das v. Surasti Bai (1940) A.I.R. 449. The appellant had never raised a plea of submission to jurisdiction either in the pleadings or before any lower court, and, absent any special circumstances, the Court would not permit such a plea to be introduced at this stage. Moreover, when a legislature lacks authority to legislate for a particular territory, the law it enacts cannot extend to that territory. The factual matrix of the present case demonstrated that the respondent most recently lived with his wife within the jurisdiction of the First Class Magistrate of Ludhiana, and that he was present in that jurisdiction on the date the appellant filed her maintenance application against him. This principle was supported by the authority in In re Druker (No. 2) Basden, Ex Parte [1902] 2 K.B. 210.

The judgment under review concerns Criminal Appeal No. 143 of 1961, which was filed by special leave against the order dated 22 May 1961 of the Punjab High Court, Chandigarh, in Criminal Revision No. 1448 of 1960. Counsel for the appellants appeared for Jagir Kaur and the second appellant, while counsel for the respondent represented Jaswant Singh. The appeal was heard on 13 February 1963, and the opinion was delivered by Justice Subba Rao. The central issue raised by the appeal was the proper interpretation of subsection 8 of section 488 of the Code of Criminal Procedure. The factual background revealed that Jagir Kaur, the first wife of Jaswant Singh, had been married in 1930. At the time of the marriage, the husband was employed in the police force stationed in Africa. Approximately seven years after the marriage, a Maklawa ceremony was performed while the husband was away in Africa. Subsequently, the first appellant was taken to live in her mother‑in‑law’s house; after a few years she returned to her parental home. Several years later, while the husband was on a five‑month leave in India, the couple resided for several months in a house at Hans Kalan, after which he returned to Africa. The record also indicated that the husband later married a second wife and took her to Africa, and that after a further period he again returned to India, bringing the first appellant with him, where she gave birth to a daughter, the second appellant. Disputes subsequently arose, leading the husband to send the first appellant back to India, promising maintenance that was never provided. In 1960, the husband purchased property in Ludhiana District for Rs. 25,000. While he was conclusively present in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure before the First Class Magistrate of Ludhiana, the jurisdiction in which the respondent was residing at that time.

In this case the Court described that the first appellant and her daughter lived in a house at Hans Kalan for a period of five months, after which Jaswant Singh returned to Africa. Before departing for Africa, Jaswant Singh married a second wife and took that wife with him abroad. Five or six years later he returned to India on leave and also brought the first appellant to Africa, where she gave birth to a daughter, who was the second appellant. When disputes arose between them, he sent the first appellant back to India, promising to provide her with money for her maintenance, but he failed to do so. In 1960 he again came to India. Evidence showed that he had purchased property in Ludhiana District for twenty‑five thousand rupees. While he was admittedly in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure before the Court of the First Class Magistrate, Ludhiana, which was the jurisdiction where the respondent was residing at that time. The petition was filed by the first appellant on her own behalf and also as the lawful guardian of the second appellant, who was a minor, seeking maintenance of two hundred rupees per month for both of them on the ground that the respondent had deserted them and failed to maintain them. The respondent filed a counter‑affidavit denying the allegations and pleaded that the court had no jurisdiction because he had never resided within that district nor had he last resided with the first appellant in any place within its jurisdiction. The learned Magistrate held that the petitioner‑appellant was the wife of the respondent and that the court possessed jurisdiction to entertain the petition because the husband and wife had last resided together in the District of Ludhiana. On the merits, the Magistrate found that the first wife and her daughter were entitled to maintenance and ordered maintenance of one hundred rupees per month for the wife and fifty rupees per month for the daughter. The respondent filed a revision of that order before the Additional Sessions Judge, Ludhiana. The Additional Sessions Judge concurred with the Magistrate both on the question of jurisdiction and on the right to maintenance and dismissed the revision. The husband then preferred a revision before the High Court of Punjab against that order. The High Court disagreed with both lower courts on the question of jurisdiction, holding that the husband’s permanent home was Africa and that his two temporary visits to Ludhiana did not make him a resident of that district nor a person who last resided with his wife there. Accordingly, the High Court set aside the order of the Additional Sessions Judge and dismissed the petition. The present appeal therefore arose. Counsel for the appellants argued that the respondent had last resided with his wife in his house in the village of Hans Kalan in the District of Ludhiana and that he was also present in that district at the time the application under section 488 was filed.

The first appellant had filed an application under section 488 of the Code of Criminal Procedure, and consequently the learned Magistrate possessed the territorial jurisdiction required to entertain that application. The appellant further maintained that the respondent had expressly submitted to the jurisdiction of the Magistrate; therefore, the respondent could not later challenge the validity of the Magistrate’s order on the ground that the Magistrate lacked jurisdiction. The counsel representing the respondent, on the other hand, argued that the order of the High Court should be affirmed for the reasons set out in that judgment. At the beginning of the present proceedings, the Court observed that the appellant had never raised the defence of submission in any of the pleadings before the trial court, the additional Sessions Court, or the High Court. The issue therefore presented itself as a mixed question of fact and of law, requiring both factual determination and legal interpretation. The Court noted that it would not ordinarily permit a party to introduce a fresh ground of defence for the first time before this apex Court, and it found no extraordinary circumstance in the present case that would justify departing from that established practice. Accordingly, the Court declined to allow the appellant to pursue the belated plea of submission. The sole question that remained for determination on appeal was whether the Magistrate of Ludhiana had the authority to entertain a petition filed under section 488 of the Code of Criminal Procedure. This question turned upon the proper construction of the relevant provisions of subsection (8) of section 488, which delineates the limits of a court’s jurisdiction in proceedings under that section. Subsection (8) of the Code reads: “Proceedings under this 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.” The key terms in this provision are “resides”, “is” and “where last resided with his wife”. Under the older Code of 1882, jurisdiction was confined solely to the district where the husband or father, as the case required, resided. The present provision, however, expands jurisdiction to three alternative forums. The Court interpreted this expansion as a deliberate legislative measure intended to provide a discarded wife or a helpless child with urgent relief in whichever of the three forums was most convenient to them. Because proceedings under section 488 are of a civil nature, afford a summary remedy, and are typically instituted by a vulnerable person, the Court held that the terms should be construed liberally, provided that such construction does not distort the language of the statute. The first term, “resides”, applies when a wife files a petition for maintenance in the district where her husband lives. Judicial opinions on the precise meaning of “resides” have diverged, and the Court consulted the Oxford Dictionary, which defines “reside” as “to dwell permanently or for a considerable time; to have one’s settled or usual abode; to live in or at a particular place.” This definition therefore encompasses both a permanent dwelling and a temporary habitation, and the Court concluded that the term is capable of covering various meanings, including both strict domicile and temporary residence.

The term “resides” is capable of various meanings, ranging from the strict legal notion of domicile to a merely temporary residence. Regardless of which meaning is adopted, it is clear that the term does not cover a casual stay or a fleeting, flying visit to a place. In essence, the ultimate meaning of the word must be read in light of the context and purpose of the statute in which it occurs. In the present case, the context and the purpose of the statute do not require the technical concept of domicile to be imported. The statute would achieve its objective more effectively if “resides” were interpreted to include a temporary residence. The way the words “is” and “last resided” are placed together in the sub‑section further illuminates the meaning of “resides”. The word “is”, as will be explained later, confers jurisdiction on a court based on a causal visit, while the expression “last resided”, which will also be considered, shows that the Legislature could not have intended to employ “resides” in the narrow technical sense of domicile. Consequently, “resides” cannot be given a meaning that differs from the meaning of “resided” found in the phrase “last resided”, and the broader interpretation fits the setting in which the term appears. A number of decisions cited by counsel are relevant to this point. In Santpoornam v. N. Sundaregan (1), the court held that “resides” signified something more than a brief visit, yet not so continuous as to amount to a domicile. In Khairunissa v. Bashir Ahmed (1), after considering the relevant authorities, the court observed that a casual or flying visit to a place is excluded from the ambit of “resides”. A full bench of the Allahabad High Court, in Flowers v. Flowers (2), expressed the view that a mere casual residence for a temporary purpose with no intention of remaining does not fall within the meaning of “resides”. In Balakrishna v. Sakuntala Bai (3) the court held that the expression “reside” implies more than a mere “stay” and requires an intention to remain at a place rather than a casual visit. In Charan Das v. Surasti Bai (2), the court ruled that the sole test for residence is whether the party possessed animus manendi, that is, an intention to stay for an indefinite period at one place; only when such intention exists can the party be said to “reside” there. Although the decisions on this subject are numerous, it would be futile to catalogue all of them. Generally, no decision goes as far as to hold that “resides” in the sub‑section means only domicile in the technical sense. There is a broad consensus that the term signifies something more than a flying visit or a casual stay.

In this discussion the Court observed that a mere casual stay in a particular place did not satisfy the requirement of residence. The Court noted that there must be animus manendi, that is, an intention to remain for a period, and that the duration of that period depended on the circumstances of each case. Considering the purpose of the provision, the ordinary meaning of the words, and the interpretation given by earlier decisions, the Court defined the term “resides” as follows: a person resides in a place when, by his own choice, he makes that place his abode, either permanently or temporarily. Whether a person has elected a particular place as his abode, the Court said, is a question of fact that must be determined from the surrounding facts of each individual case. To illustrate this definition the Court set out several examples. First, a villager who travelled to a nearby town for a marriage ceremony or to purchase goods and who stayed in a hotel for one or two days was described. Second, a tourist who moved from one location to another during his travels and who stayed for a few days at each location was described. Third, a resident of a village who, because of a chronic illness, accompanied his wife to a town for medical treatment, took a house there and lived there for about six months was described. Fourth, a permanent resident of a town who went to a city for higher education, took a house there and lived there either alone or with his wife in order to complete his studies was described. The Court held that in the first two illustrations the person made only a fleeting visit and possessed no intention to live, either permanently or temporarily, at those places; consequently the person could not be said to “reside” in those places. In contrast, in the third and fourth illustrations, although the person owned a permanent house elsewhere, he possessed a clear animus manendi to treat the place where he had gone for medical care or for education as his temporary abode. The Court therefore concluded that even though the person was not domiciled in those places, he nevertheless “resided” there. The Court further explained that the related expression “last resided” derived its meaning from the word “resides” earlier in the subsection. Accordingly, if “resides” includes temporary residence, the phrase “last resided” must refer to the place where the person last had a temporary residence. However, the Court noted that some submissions argued that the phrase could denote the last residence of the person with his wife anywhere in the world and was not limited to a location within India. The Court observed that if the words “where he last resided with his wife” were interpreted in isolation, the construction advanced by the respondent’s counsel might appear correct, but by giving such a wide meaning to the said

The Court observed that expanding the meaning of the expression would effectively give the Code of Criminal Procedure an extra‑territorial reach, which is not intended. Section 2(1) of the Code limits its operation to the whole of India, expressly excluding the State of Jammu & Kashmir. Consequently, every provision of the Code, including subsection (8) of section 488, operates solely within the territorial limits of India, except for Jammu & Kashmir. Therefore, when subsection (8) of section 488 prescribes the limits of jurisdiction and refers to “the last residence of a person with his wife,” that reference must be understood as indicating the last residence of the person and his wife within the territories of India. The expression cannot be read to include a residence in a foreign country because an Indian statute cannot confer jurisdiction on a court outside India. Hence, the Court considered it a proper construction to require that the district where the person last resided with his wife be a district located in India.

The Court illustrated this principle by referring to the earlier decision in In re Drucker (No 2) Basden, Ex Parte, where the phrase “or in any other place out of England” in subsection (6) of section 27 of the Bankruptcy Act, 1883, was examined. Those words were initially wide enough to permit an English court to order the examination of a person in any place outside England, even if that place lay beyond the jurisdiction of the British Crown. However, the court held that the language must be read with a limitation; the jurisdiction created by the section did not extend to foreign locations beyond the Crown’s authority. Justice Wright, rejecting the broader interpretation, remarked that such a restriction appeared prima facie necessary and it was inconceivable that the Legislature intended to empower the court to order examinations in foreign countries such as France or Germany. The Court also cited Halsbury’s Laws of England (Vol. 36, 3rd ed., p. 429), which states that the presumption is that Parliament is concerned only with conduct occurring within the territory over which it legislates, and that the extent and limits of a statute are prima facie the same. These observations were made in the context of a Parliament legislating for a part of its own territory. Since Parliament lacks the power to enact laws for foreign territories, the operation of such a law cannot extend to a country beyond its legislative control. Accordingly, it follows that when section 488(8) of the Code mentions a district, the reference must be confined to a district within India.

In interpreting the phrase “where a person last resided with his wife,” the Court explained that the expression can be read only as referring to any district in India other than Jammu and Kashmir in which the husband last lived with his wife. The third term that appears in the provision is the word “is.” This word is positioned between “resides” and “last resided,” and therefore it cannot be given the same meaning as either “resides” or the expression “last resided.” When the relevant part of the subsection is read in full – “Proceedings under this section may be taken against any person in any district where he … is …” – the verb “is” conveys the idea of the person’s presence or existence in the district at the moment the proceedings are instituted. This notion of presence is far broader than the concept of residence; it is not restricted by the husband’s intention to remain, by the length of his stay, or by the character of his occupation. What is essential, according to the Court, is the physical presence of the husband at a specific point in time. This interpretation is consistent with the purpose of the chapter in which the section is placed. The chapter is meant to reach a husband who deserts his wife or child, leaving them helpless, and who may have fled to another district, a distant part of the country, or even a foreign country, but who subsequently returns, even for a brief or casual visit. In such a situation, the wife may take advantage of his temporary presence and file a petition in the district where he is staying at that moment. Likewise, if the deserting husband has no fixed residence and is constantly on the move, the wife may intercept him at any convenient place and institute proceedings under section 488 of the Code before he departs again. The provision is therefore a salutary measure designed to address such abnormal circumstances, and many hypothetical situations can be imagined in which its utility becomes evident. In summary, Chapter XXXVI of the Code of Criminal Procedure, which deals with the maintenance of wives and children, serves a social purpose. Section 488 provides alternative forums so that a deserted wife or a helpless child, whether legitimate or illegitimate, may obtain urgent relief. Proceedings under the section may be instituted against the husband or father in any place where he resides permanently or temporarily, where he last resided in any district of India, or where he happens to be at the time the proceedings are commenced. Applying these principles to the present case, the factual background recounted that the respondent was born in Ludhiana district, married the first appellant in 1930, migrated to Africa where he served as a police officer, returned to India around 1943 and lived with the first appellant for about five months before leaving again for Africa, subsequently came back on leave, took the appellant to Africa where she gave birth to a daughter, was later sent back to India while the appellant remained in Ludhiana with the child, and that his mother continued to reside in the same village. It is also undisputed that the respondent purchased property in Ludhiana worth twenty‑five thousand rupees in the name of his minor children by his second wife, and that at the time the petition was filed he was admittedly present in the Ludhiana district, as notice was served on him there, he filed a counter‑affidavit, obtained exemption from personal appearance, and then left again for Africa. While the Court does not need to opine on whether, on these facts, the respondent “resides” in India, it is satisfied that he “last resided” in India.

The respondent lived with the first appellant in a house at Hans Kalan for roughly five months and then departed again for Africa. Five or six years later he returned to India on leave and escorted the appellant to Africa, where she gave birth to a daughter. After the birth the appellant was sent back to India, and she remained in Ludhiana District together with the child. The respondent’s mother also resided in the same village in that district, and it was not contested that the respondent had purchased property valued at Rs 25,000 in Ludhiana in the name of his minor children by his second wife. When the maintenance petition was filed, the respondent was admittedly present in Ludhiana; a notice was served on him there, he filed a counter‑affidavit, obtained exemption from personal appearance at the hearing, and subsequently left again for Africa.

The Court did not consider it necessary to express an opinion on whether, on the facts, the respondent “resided” in India, but it was clear that he “last resided” in India. The Court held that a temporary residence accompanied by an animus manendi—an intention to remain—constitutes residence within the meaning of the statutory sub‑section. When the respondent came to India and lived with his wife in either his own house or his mother’s house in the village of Hans Kalan, he possessed a clear intention to stay with his wife there for a limited period. He was not merely a casual visitor during his travels; he arrived with the definite purpose of living with his wife in his native place and remained there for about six months. The subsequent visit was merely a brief trip to take the appellant to Africa. In these circumstances the Court concluded that the respondent last resided with the appellant in a location that fell within the jurisdiction of the First Class Magistrate of Ludhiana. Moreover, it was admitted that the respondent was physically present within that jurisdiction on the date the appellant filed her application for maintenance against him. The magistrate possessed jurisdiction to entertain the petition because the provisions allow proceedings to be initiated against a person in any district where he “is”. Accordingly, the Court held that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under section 488(8) of the Code of Criminal Procedure.

The next issue concerned the amount of maintenance to be awarded to the appellant and her child. After evaluating the entire evidence, including the respondent’s salary and the value of the property he had purchased, the magistrate awarded the wife a monthly maintenance of Rs 100 and an additional Rs 50 per month for the maintenance of her minor child. On reconsideration of the evidence, the Additional Sessions Judge accepted the magistrate’s findings and confirmed the same quantum of maintenance. The finding was recorded as a concurrent finding of fact.

The Court observed that the factual finding recorded by the Magistrate constituted a finding of fact whose correctness could not normally be challenged in a revision petition filed before the High Court. Consequently, the sole issue that had been raised before the High Court concerned the question of jurisdiction of the Magistrate. The Court explained that the principle underlying this approach is that findings based on the evaluation of evidence by a trial court are presumed correct unless a clear error is demonstrated. Accordingly, such a presumption limits the scope of a revision petition to questions of law or jurisdiction rather than re‑examining the merits of the evidence. Having examined the jurisdictional submission, the Court concluded that the High Court had erred in accepting the view that the Magistrate lacked jurisdiction. Therefore, the Court set aside the order passed by the High Court and reinstated the order originally issued by the First Class Magistrate of Ludhiana. By restoring the Magistrate’s order, the Court effectively granted the relief sought in the appeal. In result, the appeal was allowed.