RA] KUMARI VIJH versus DEV RAJ VIJH

SHINGHAL, «Jr—This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14. 1974, allowing the revision application of Dev Raj Viih and

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respondent missing the appellant’s application dated March 18, 1969, under tion 488 of the Code of Criminal Procedure, 1898, hereinafter referred to the Code.

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Appellant Raj Kumari Vijh married to Dev

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respondent Raj Vrjh in Delhi, in June 1950. It is the admitted of the

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parties that they from 1953. The living separately appellant filed her first application for maintenance under section 488 of

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the Code, in 1955, but it was dismissed. The filed

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respondent application for divorce, judicial separation, in 1956 in

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Aligarh (Uttar Pradesh). It ultimately dismissed} on March

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appeal 29, 1968. In the meantime the appellant filed suit the

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against respondent for recovery of her “st-ridhen” in Delhi in 1956. It decreed on the

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appeal by Delhi, High Court for Rs. The

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in_1967, 6,458 /'—. appellant gave notice to the respondent June

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24, 1968, claiming maintenance deserted wife. out of it Nothing and she filed the

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present ,.application_under section 48-8 of the Code in the Court of

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the Delhi Magistrate on March 18, 1969. It stated in the that

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application the appellant had lived with

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the respondent in Delhi and his Aligarh

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legally wedded wife, and thereafter at »—-..,.__ Village Lampur, P. S.

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Narela, Delhi, towards the endof December

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1968, because the pondent visited her there for and for

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settlement non—execution of the decree which she had obtained

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for Rs. 6,458 /— account of her “stridhan”. It was stated in the

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application that the parties lived Lamlpur husband and wife and there

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cohabitation. The appellant prayed for order her Rs.

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allowing 450/— per month for maintenance the respondent had sufficient but

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had neglected refused to maintain her. The respondent filed

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reply April 29, 1969 in which, according to the there

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Magistrate, specific denial of the averment that the last resided at parties together An

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Lampur. objection however taken that the earlier

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application dismissed Feb— ruary 2, 1956, the second barred on application the of

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principle judicata. An objection taken to the

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jurisdiction of the Delhi Court onthe ground. that the never

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respondent resided permanently or in Delhi. We temporarily have not found it to

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possible go through the because it has been stated reply by counsel for the that the

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parties original record has been The

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destroyed. Magistrate passed order for production of evidence. The

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respondent thereupon prayed that the question of jurisdiction may be decided before the evi—

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recording denge. That was not to the

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agreed by magistrate. He made order November 1969 that.

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19, the question of must

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jurisdiction await the of the evidence

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recording the whole The pondent did not that order or

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challenge apply for permission to file an additional On the reply. other hand, he asked for the of

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holding identification parade for the of

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purpose showing that of the appellant’s witnesses did not know him. Both the

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parties led “mfiwu-m. their evidence, it

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although appears that the respondent did not like to avail the which

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of opportunity given to him to lead evidence the merits. He did not even apply for permission to file ad-

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any ditional reply when recorded

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theMagistrate tthe appellant’s evidence on her' for

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application maintenance whole. Ultimately the Magistrate made his final order

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May 21, 1973. He took the View that there no specific denial of the

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appellant’s allegation that the parties last resided

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together, husband and wife, in village Lampur, in Delhi, towards the end of December in 1968. He took notice of the fact that the plea of bar against the maintain—

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of the second because of the dismissal of the first ability application

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not pressed by the respondent and after referring application, to the entire evidence in details, he reached the conclusion that he had the to the and main—

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jurisdiction entertain application, granted tenance allowance at the rate of Rs. 125/- menth, with effect from

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per March 18, 1969, along with an order regarding the mode of payment of the arrears. The for revision of that order,

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respondent applied and the Additional Sessions Judge referred the case to the High Court on November 30, 1973, for dismissal, of the application (under section 488 of the on the that the Delhi had no Code) ground Magistrate

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to entertain As the Court has allowed the jurisdiction it. High reference, and dismissed the revision which filed by

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application the for increase in the maintenance allowance, the appellant

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has come up to this Court by special leave. appellant In its dated March 14, 1974, the High Court

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impugned judgment has “recorded the that the did not reside together at finding parties

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and for that it took the View that the Delhi village Lampur, Court no to entertain the appellant’s application

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had jurisdiction under section 488 of the Code. Counsel for the has ve-

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appellant

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that the of the, High Court is incorrect, but hemently urged finding it is of fact, we shall on the assumption that

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finding proceed it does not call interference in this The how—

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fort appeal. question

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remains whether section 531 of the Code would be applicable to the case? The Court has held that the section would not

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High be and that is it has passed the impugned order for

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applicable, why the dismissal of the of the appellant under section 488

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application of the Code. The High Court has taken that view for the following reasons,—

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The to jurisdiction raised “right at the (i) objection first instance by the husband”.

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The reserved his right to file (ii) respondent “specifically written merits after the question of jurisdiction

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reply decided”.

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the had “reserved his right to lead (iii) As respondent dence on merits, it is not where the husband

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his to lead evidence dim deliberately gave up right

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merits (iv) There “obvious prejudice and failure of justice” to the he never led evidence the merits.

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respondent

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It Was necessary for the to prove that the res- (v) appellant

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had refused and neglected to maintain her. and pondent that an opportunity to be given to

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“obviously requires the husband to prove his case, if it be one, that he has not refused or refuses or neglected to maintain his wife or what his income and means is”. (vi) “Before decision on merits can be the

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given husband has the undoubted to lead

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request (sic) evidence

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merits”. (vii) A proceeding cannot be entertained in court

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has

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which jurisdiction by simply taking recourse to section 531 of the Code, when has been

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objection taken against its for otherwise the

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maintainability, provision relating R to jurisdiction would become

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nugatory. Section 5 31 “can the the has

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infirmity after, been fought

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merits.” have examined these but we are

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grounds, constrained to say that they not tenable in the facts and} circumstances

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of this case. Section 531 of the Code reads

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follows,— “531. No sentence or order

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finding, of any Criminal Court shall be set aside on

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merely the ground that the inquiry, trial or other in the course

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proceeding of which it arrived at or took in

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passed, place wrong sessions division, district, sub-division or other local

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area, unless it appears such error

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that has in fact occasioned failure

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of justice.” The section therefore relates to defect of

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jurisdiction. As has been stated this Court in

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by Purushottamdas Dalmia The State West of Bengal(‘) those are two of types’ jurisdiction of criminal

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court, namely, (1) the jurisdiction with to

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respect the power of the court to try! particular kinds of and its

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offences, (2) territorial jurisdiction. While the former to the root

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goes oh the matter and of it any transgression makes the trial the

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entire voiid, latter is not of

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and is perempfOry character curable under section of the Code.

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531 Territorial jurisdiction is provided

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“just matter of convenience, in mind the keeping administrative point of View with to

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respect the work of particular court, the convenience of the accused

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who will have to meet the charge levelled against him and the convenience

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of the witwho have to

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appear before the Court”. Sub-section of section 488 in (8)

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fact provides that

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proceedings under the section be takem “may against any person in any distribt where he resides

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or is, or where be last resided with his

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wife or, the case the of the may be, mother illegitimate child.” This therefore is

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ordinarily the require— ment to the of

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filing application under secti0n 488 within the limits of the jurisdiction

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of the magistrate concerned.

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where magistrate has the 'So “power” to

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try particular_appli— cation under section and the

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488, controversy relates to his terntorial solely jurisdiction, there should, ordinaril be

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reason section 531 of the Code why should not be to the

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applicable order made by him. It has therefore to be

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examined whether there were such circumstances any in this for which the

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High Court could justi— fiably refuse to the

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apply provisions of section 531- (1) [1962] SCR. 101.

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The first reason why the Court has not the benefit of

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High given section,53l to the appellant is that to the

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objection jurisdiction of the Delhi Court raised the at the first

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by respondent “right instance.” Counsel for the respondent has argued that

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strenuously such benefit will not be available in where the

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magistrate knew that he had jurisdiction, and in with

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persisted proceeding the trial under the» that section '531 of the Code, would,

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impression at any rate, validate his order. That, to the counsel,

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accOrding amounted to an order the the

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by magistrate giving jurisdiction himself by virtue of section 531. Reliance in this connection has been placed on Radharam' Rahim Sakuntalat Thiruma-

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SardarG), layya(2), State Tavam Naika(3), Sultan Chand Nat/z

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Yogindra Baz (4), and Satwant’Singh Smt. jaswam Kaur (5).

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As is apparent, section 531 does not entitle who

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magistrate, not magistrate of the class referred to in sub—section of section

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(1) 488, to proceed with for maintenance. In fact

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application DistriCt Magistrate, Sub-Divisional or

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Magistrate Magistrate of the class will not be entitled to with such an

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first proceed application if he knows that the do not within his

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proceedings fall jurisdiction under sub-section of section 488. The true of

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(8) meaning section 531 is. that while it will not order in

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uphold passed proceedings wilfully taken in wrong place, or enable

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magistrate confer jurisdiction on himself when. he knows that he has no such jurisdiction, there is magistrate, who is otherwise

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why duly empowered to make order under sub—section of section

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(1) 488 of the Code, cannon with under that sub-

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proceed application section .for the purpose of whether he has the territorial

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deciding jurisdiction to entertain the and to decide the

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application application the merits if he finds that he has the territorial

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jurisdiction. Section 531 cannot thus be said to be to Where

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inapplicable there is to the district where the should

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controversy proceeding be held, the parties lead evidence in of their

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support respective contention about the correct of the

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place proceeding. and the magistrate finds it note of the entire

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necessary (after taking evidence on the to arrive at decision the basis of

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controversy) the balance of In other there is reason

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probabilities. words, why. in such case, section 531 should not be

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applicable merely because the magistrate, while the evidence to

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considering relating jurisdiction, unwittingly makes reference to section 531 in and not

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passing for the purpose of under it. If the

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assuming jurisdiction magistrate. in this case, had of under

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thought assuming jurisdiction section 531. he would not have to record evidence of

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proceeded the the parties, on the of the territorial or referred to

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question jurisdiction, it at length in his order and arrived at the decision that he had the

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jurisdiction. We have gone through the which have been the

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cited by counsel for the respondent. Radharani and another Rahim

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Saidar (supra) where the magistrate proceeded with the

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trial (1) A.t.RIT§467:Zicutta (2) (1966) M.L.J. 326.

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A.I.R. Mysore (4) A-I-R- Peshawar (5) (1956) A.L.J. in the wrong local with his eyes open to the fact that he had territorial jurisdiction, and the Calcutta Court had to observe

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High that the section does not confer any This is however not

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jurisdiction. in the present case, because the Magistrate recorded the evidence

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the question of territorial jurisdiction, and he went to the extent of making reference to the entire evidence which led the

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point. Moreover he took note of the fact that the had

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respondent not, specifically dened that he lived at with the

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village Lampur appellant. This is therefore not where the with

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Magistrate proceeded the application though he had the that it did not fall

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knowledge within his jurisdiction. The is the in to

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position regard Sakuntala Thirumalayya and it also cannot avail the

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(supra) pondent. We have gone through State T Naika

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(supra). It not under section 488 of the Code. What has been said there is that the curative of section 531 should not be

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provisions for overlooking material to

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irregularity pertaining jurisdic— tion when it is to the notice of the Court before the

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brought mencement of the trial. It does not therefore down

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lay anything different from what has been stated in Rahim Sardar (supra). It where the accused committed to

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wrong sessions division, and the mistake corrected because the trial had commenced. Sultan Chand & another Nat/z Ba;

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Yogindra (supra) also not under section 488 of the Code. It has held in that that when the of has been

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question jurisdiction raised before the trial it is his to determine the

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magistrate, duty point, otherwise the provisions would be

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regards jurisdiction forced and that section 531 cannot be to such As

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applied has been stated, the in the addressed himself

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Magistrate present to the of recorded detailed evidence

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question jurisdiction, it, sidered the evidence in his order and reached the conclusion that the application maintainable in his court. This is therefore difierent Satwant Singh Smt; Jaswant Kaur

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(supra)

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under section 488 of the Code. It has been held there that where the question of had been raised before the trial

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jurisdiction magistrate, it his duty to determine the and that he

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point, not proceed with the trial in local area with his

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wrong eyes open to the fact that he has no territorial As has been

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jurisdiction. shown, this not in the It thus that the

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present would appear High Court erred in taking the View that section 531 would not

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be applicable this merely because to jurisdic-

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objection tion raised the at the first instance.”

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by respondent “right The second ground mentioned the Court is that section

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by High 531 would not be because the had

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applicable respondent specifically reserved his right to file written merits after the

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reply question of jurisdiction had been decided. We find that this is

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clearly statement of the facts, for counsel for the able

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respondent not to refer to anything on the record to show that the reserved

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respondent any such right to file written the merits at later stage,

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reply after the question of jurisdiction him. On the

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decidedagainst other hand, find that the overruled

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Magistrate specifically the objection of the respondent, and made order the

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directing parties to addutre their evidence on the whole and

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specifically rejected 16—206SCI/ the respondent’s for the

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application deciding question of jurisdiction in the first instance. The has

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Magistrate clearly stated that an order was made for the by him production of evidence “in the and

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case", that he decided to defer a decision of the question of

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jurisdiction until after the evidence had been recorded

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whole. The Magistrate has further stated that the

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respondent did not file his further or additional reply then. The High Court therefore

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undoubtedly erred in that the thinking respondentrspecifically reserved his

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right to file written on the merits reply later As has been

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shown, no such reservation

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permitted by the magistrate, and counsel for the respondent not able to show how

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the respondent could unilaterally make such for himself. It be

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reservation may that, in given case, it may be advisable for to

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magistrate confine the evidence of the in the first to parties, instance, any

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preliminary objection relating to jurisdiction, and to decide the

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controversy on the merits thereafter, but this was in the

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not present case, unable to find the any justification for second ground mentioned the

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by High Court.

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The third ground of the Court is High also for it has

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untenable, refused to apply section 531 on of

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the ground prejudice for the that the had reserved his to

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respondent right lead evidence on th merits and did not deliberately give up that right. Here

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agai counsel for the unable to show

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respondent how it could be said that the respondent made such

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any reservation, entitled to it when, has been stated, the had

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Magistrate rejected his for application deciding the question of

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jurisdiction preliminary question and had passed an order for the

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production of all the evidence in the If therefore the in respondent persisted refusing to his

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produce evidence in of that order of the

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spite Magistrate, he alone to blame for it, and the Court erred in

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High taking the view that he had reserved the to evidence at a

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right lead later stage. The High Court has taken the View

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that this is where there obvious to the

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prejudice respondent and failure of he never justice led evidence on the merits. But

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the High Court failed to appreciate that the respondent had to thank himself for that

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predicament. He knew that the had

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Magistrate passed order to the refusing try question of jurisdiction in the first instance and

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had rejected his application to that effect. He also knew that the had

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Magistrate called upon the parties to lead all their evidence. The

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appellant obeyed that order and her witnesses.

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examined The respondent persisted in the had

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thinking that, Magistrate jurisdiction, and he refused to examine the witnesses the

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merits and it suffi~ cient thought to. confine his evidence to the

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question of jurisdiction. So it" he refrained from deliberately producing his evidence the

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merits, there be no justification for him to raise the

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question of prejudice or failure of AS justice. it is, Counsel for the has

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respondent not been able to refer to of the

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any application respondent, whether oral or documentary, expressing desire to lead his evidence on

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the merits. The fact of the matter therefore is that the had

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respondent decided that he would not lead evidence

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any the merits, and fined his evidence to the of question jurisdiction. It may be that, has been argued the Counsel for the

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by appellant, he did because he realised that he had no defence to make

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the merits of the claim for maintenance.

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The fifth ground mentioned the

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by High Court is that before order could be under section passed 488(1) it to

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necessary prove that the husband had refused or

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neglected to maintain his and wife, that to be to

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required opportunity given the husband to his prove case. But the argument is futile because the

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respondent did not up any defence the merits. On the other

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hand, the Magistrate found that there

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controversy about the facts that the the appellant lawfully wedded wife of the and

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respondent that she had been living for the last

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separately many years and entitled to maintenance the had

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respondent neglected her had refused to

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her. maintain In its sixth the

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ground High Court has stated that before decision could be the

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given merits, the husband could make for request permission to lead evidence on merits.

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It would be sufficient to say that Counsel for the was

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respondent unable to point out when and how such

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any request made but refused the trate. by Magis—

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Lastly, the High Court has taken the view that not proceeding be maintained court which has by jurisdiction

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by simply taking recourse to section 531 of the Code

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when objection has been taken its

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against maintenance, for otherwise the relat-

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to provision ing jurisdiction wotuld become This has

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nugatory. point already been considered earlier and need

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not be re—examined. It is thus clear that the

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quite High Court committed serious error of law in to

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refusing invoke section 531 in the facts and circumstances of this It is not in

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controversy that the who Magistrate took the on the

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proceedings, appellant’s application under sub— section (1) of section

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488, of the magistrates mentioned in that sub—section. raised

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The respondent controversy to his local jurisdiction, and the Magistrate ordered the

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parties to lead all their evidence. He the specifically rejected application for the

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confining evidence to the of or

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question jurisdiction, to try that issue. preliminary It is therefore futile to contend the

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that Magistrate gave himself recourse to section

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jurisdiction by 531 of the Code. On the other hand in his final he

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order, set out the points which arose for consideration on the of

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question jurisdiction, made mention, at length, of the entire evidence on that

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question and took into consi~ deration the conduct of the and the

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respondent law well the respondent’s All that led him to

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reply. the conclusion that he had jurisdiction to the is

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try application. There therefore reason

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section 531 no_ why should not be held to be to this

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applicable As has been shown, it is futile for Counsel for the to

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respondent raise the question of or to that prejudice, say there of

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failure justice, because the did not his respondent lend evidence

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on the merits. As have he did 'so pointed out, deliberately and in defiance of the order of the him to lead his

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Magistrate calling upon evidence the whole The cannot in fact be heard

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respondent to raise the of when the uncontroverted and

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question prejudice well established facts the Magistrate found that the respondent

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who had sufficient and had neglected to maintain his person

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and -made an order that he shall make allowance of wife, monthly

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per mensem for her maintenance. Rs.‘125/- The is allowed and the impugned order of the High Court

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appeal dated March 14, 1974, is set aside, with costs. P.B.Rt Appeal allowed.

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