Holding

A maintenance petition filed by a parent under Section 125 of the CrPC must be presented in the district where the person from whom maintenance is claimed lives; therefore the Siwan court lacked jurisdiction.

Summary

The father filed a petition under Section 125 of the CrPC for maintenance against his son in the Siwan court. The son, who was practicing and residing in Patna, applied for transfer of the case, arguing that Siwan lacked jurisdiction because the maintenance respondent lived elsewhere. The High Court rejected the transfer, but the Supreme Court examined the jurisdictional provisions of Section 126(1) of the CrPC. It held that, unlike the provisions for wives and children, a maintenance claim by a parent must be filed in the district where the person from whom maintenance is claimed resides, and the term "is" refers to the physical presence of that person. Consequently, the Siwan court had no jurisdiction and the case was transferred to the Sessions Division of Patna. The appeal was allowed without any comment on the merits of the maintenance claim.

Issues considered

Whether jurisdiction under Section 126(1)(a) of the CrPC for a maintenance petition filed by a parent is determined by the residence of the claimant or by the residence of the person from whom maintenance is claimed.
Interpretation of the terms "is", "resides" and "last resided" in Section 126(1) of the CrPC.

Legislation cited

Code of Criminal Procedure, 1898s. 488
Code of Criminal Procedure, 1973s. 125, s. 126

Subjects

maintenancejurisdictionSection 125 CrPCSection 126 CrPCparental maintenancetransfer of caseinterpretation of "is"

Judgment

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
E
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
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. ,...
Froin the Judgment and Order dated 12.5.2003 of the Patna High Court
in Cr!. M. No. 871 of 2003.
H
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 sons. While the appellant is son of respondent No.
2 [who is the petitioner claiming maintenance in terms of Section 125 of the
Code of Criminal Procedure, 1973 (in short 'the Code')], the other respondents c
are appellant's step brothers.

The factual background projected by the parties need not be noted in
detail as the pristine question involved is one of law relating to jurisdiction
in terms of Section 126 of the Code where an application can be filed. The
application was filed by the respondent No. 2 - father in the Court of Chief D
Judicial Magistrate, Siwan. The appellant filed an application for transfer of
the case from Siwan to Patna alleging that an influential politician was behind
the litigation, and he would not get justice if the case is tried at Siwan as he
could not even arrange a lawyer to represent him. According to him, the
Court at Siwan has no jurisdiction to entertain the application because the
E
appellant lives in Patna and is practising as a lawyer. The Patna High Court
rejected the application for transfer primarily on the ground that the alleged
apprehensions of the petitioner were not established. The question relating to
jurisdiction was not specifically adverted to.

In support of the appeal, learned counsel for the appellant submitted F
that the question relating to jurisdiction was specifically urged before the
High Court. It was clearly stated that the appellant resides at Patna and the
Court at Siwan could not have entertained the application. In addition to the
other aspects like inability to get lawyer, the question of jurisdiction was
specifically urged. With reference to the language of Section 126 it is submitted
that the respondent no. 2 had filed the petition before the Siwan Court claiming G
that he resides within the jurisdiction of the said court. It is not his residence
which would determine the jurisdiction, but the place where the person from
,~
"' whom he claims maintenance i.e. present appellant resides.

In response, learned counsel for the respondents submitted that the
H
938 SUPREME COURT REPORTS [20041 3 S.C.R.

A allegations of political influence having been discarded by the High Court in ,,
a transfer petition, it was not open to the present appellant to raise the question
of jurisdiction.

Though the impugned order relates to a transfer petition, the question
of jurisdiction appears to have been specifically raised before the High Court.
B In normal course we would have remitted the matter to the High Court for
a decision on that aspect; but considering the relationship of the parties and
as rightly submitted by learned counsel for the respondents the importance of
the question, we think it appropriate to examine the question of jurisdiction.

c to (8)Section 126 of the Code is in essence a repetition of Section 488 (6)
of the Code of Criminal Procedure, 1898 (in short the 'old Code').
Section 488 of the old Code corresponding to Section 126 so far as relevant
read as follows:-

"Proceedings under this section may be taken against any person
in any district where he resides or is, or where he last resided with
D
his wife, or, as the case may be, the mother of the illegitimate child."

Section 125 deals with various categories of persons who can claim
maintenance. Sections 125 and 126 of the Code appear in Chapter IX which
carries the heading "Order for maintenance of wives, children and parents".
E Section 125(1)(d) relates to the father or the mother, unable to maintain
himself or herself.

Section 126(1) which is relevant for the purpose of this case reads as
·follows:
F "Proceedings under section 125 may be taken against any person
in any district -
(a) where he is, or
(b) where he or his wife resides, or
G (c) where he last resided with his wife, or as the case may be, with
the mother of the illegitimate child."

The position of law relating to proper jurisdiction was highlighted by ,, ~
'
this Court in Mst. Jagir Kaur and Anr. v. Jaswant Singh, AIR (1963) SC
1521 as follows:
H
V.K. PRASAD v. STATE OF BIHAR [PASA YAT . .I.) 939

~ > "The words of the sub-section are, "resides", "is" and "where he last A
resided with his wife". Under the Code of 1882 the Magistrate of the
District where the husband or father, as the case may be, resided only
had jurisdiction. Now the jurisdiction is wider. It gives three alternative
forums. This in our view, has been designedly done by the Legislature
to enable a discarded wife or a helpless child to get the much needed
and urgent relief in one or other of the three forums convenient to
B
them. The proceedings under this section are in the nature of civil
proceedings, the remedy is a summary one and the person seeking
that remedy, as we have pointed out, is ordinarily a helpless person.
So the words should be liberally construed without doing any violence
to the language." c
As noted in the above said judgment the crucial expression for the
purpose of jurisdiction in respect of a petition which is filed by a father is
not where "parties reside" and "is".

It is to be noted that Clauses (b) & (c) of sub section (1) of Section 126 D
relate to the wife and the children under Section 125 of the Code. The benefit
given to the wife and the children to initiate proceeding at the place where
y they reside is not given to the parents. A bare reading of the Section makes
it clear that the parents cannot be placed on the same pedestal as that of the
wife or the children for the purpose of Section 126 of the Code.
E
The basic distinction between Section 488 of the old Code and Section
126 of the Code is that Section 126 has essentially enlarged the venue of
proceedings for maintenance so as to move the place where the wife may be
residing at the date of application. The change was thought necessary because
of certain observations by the Law Commission, taking note of the fact that
often deserted wives are compelled to live with their relatives far away from
F
the place where the husband and wife last resided together. As noted by this
Court in several cases, proceedings under Section 125 of the Code are of
civil nature. Unlike clauses (b) and (c) of Section 126(1) an application by
the father or the mother claiming maintenance has to be filed where the
person from whom maintenance is claimed lives. G
As has been noted in Jagir Kaur 's case (supra) the expression "is"
" cannot be given the same meaning as the word "reside" or the expression
~
"the last resided". 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 H
~

f
'
940 SUPREME COURT REPORTS [2004) 3 S.C.R.

A the particular point of time. No finding has been recorded by the High Court
on this particular aspect which needs a factual adjudication. The stand of the
appellant is that he practises in Patna and was not present in Siman physically
when the application was filed for maintenance. Respondent No. 2- father
has indicated about the son practising in the Patna High Court. Obviously if
B his son was practising at the time of presentation of petition in the Patna High
Court, he could not have been physically present at Siwan, whatever extended
meaning may be given to the expression "is". In view of this the position is
clear thatthe Court at Sim an has no jurisdiction to deal with the petition. One
thing may be noted, which can clear lot of cobwebs of doubt. The expression
"is" cannot be construed to be a fleeting presence, though it may not necessarily
C for considerable length of time as the expression "resides" may require.
Although the expression normally refers to the present, often it has a future
meaning. It may also have a past signification as in the sense of "has been".
(See F.S. Gandhi (Dead) by LRs. v. Commissioner of Wealth Tax, Allahabad,
AIR (1991) SC 1866. The true intention has to be contextually culled out.

D In the circumstances we direct the transfer of the case to the Sessions
Division of Patna, with the direction that the learned Session Judge may pass
appropriate orders so that the matter can be placed before the court of
competent jurisdiction. We make it clear that we have not expressed any
opinion on the merits of the case and/or on the truth or otherwise of the
E allegations relating to political influence or pressure as alleged.

We allow the appeal to the extent indicated.

R.P. Appeal allowed.