Kapur, J.:— This was a case referred by me to a Division Bench to decide as to the effect of section 531 of the Criminal Procedure Code.
2. The wife Kaushalya Devi brought an application under section 488 of the Criminal Procedure Code against her husband and claimed maintenance. She alleged that after the partition of the country she and her husband lived in village Mahal and then in village Bhaini Basarke in District Amritsar where her parents were also residing, but they did so in a separate house of their own and she gave birth to a son there. The father as a witness stated that the respondent, i.e the husband, was employed in Meerut and that the girl was in the village but whenever the husband I could he used to come and stay in the village with his wife during the holidays. No doubt, the wife stated that she went to live with the husband in Meerut and was residing in the village at the time the application was made, but that is not conclusive in order to decide the meaning of the words “where he last resided with has wife.”
3. If the wife was residing in the village in the house where the husband was visiting her, it cannot be said that he did not reside with his wife in the village. The house where the wife was residing in this particular case must be taken to be the marital house and it is not impossible for a person to have more than one dwelling place (see Sopia Orde v. Alexander Skinner . I.L.R 3 All. 91.. Even a place of temporary residence is within the meaning of the word “resides”. It is true that “resides” implies something more than a mere brief or flying visit but in this case the wife was residing in the village and the husband who was employed outside, i.e in Meerut, used to come to the village and the husband and the wife lived together as such. In my opinion, that would amount to “resides” within the meaning of the words as used in section 488 of the Criminal Procedure Code.
4. And even if they did not, section 531 of the Criminal Procedure Code would be a complete answer to the case set up by the petitioner. The section runs as follows:—
“No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.”
5. It is not shown that there is any prejudice. In Sitram Kalwar v. Sukia Kalwarin . A.I.R 1929 Cal. 336., it was held that merely because the case was brought in the district of 24 Parganas while the husband and wife last resided together in Calcutta is not a ground for setting aside the order as it would come within section 531 of the Criminal Procedure Code, and the same view saw taken in Maung Paik v. Ma Ohn Sint . A.I.R 1939 Rang. 210., in circumstances which were similar to those in Sitram Kalwar's case.
6. In a Single Bench judgment of Bhandari, C.J Mehnga Mal v. Raj Kumari . Criminal Revision No. 779 of 1955., the same view was taken in a matter under section 488 which was an identical case in circumstances as the one in the present case and it was held that under section 531, Criminal Procedure Code, no order of any Criminal Court can be set aside merely on the ground of jurisdiction as to the place of enquiry or trial unless it appears that an error as to jurisdiction has resulted in failure of justice. The petitioner has submitted that the amount claimed is excessive. I am unable to agree with this submission. He is receiving Rs. 120/- and his wife and a child have been given a maintenance of Rs. 45/- a month. I would therefore dismiss the petition and discharge the rule.
7. Falshaw, J.:— I agree.
13. Petition dismissed.