Roy, J.:— This is a reference by the learned Sessions Judge of Kumaun recommending that an order dated 4-2-1955 passed by a learned Magistrate in proceedings under Sec. 488, Cr. P.C be set aside and Smt. Jaswant Kaur be directed to seek her remedy in proper court.
2. An application was filed by Smt. Jaswant Kaur against her husband, Satwantsingh under Sec. 488, Cr. P.C claiming maintenance. In employed in the Navy and as residing in Bombay. No allegations were made showing how the Naini Tal court where the application was filed had jurisdiction to entertain the application. Notice of the application was served on Satwantsingh at Ludhiana in the Punjab. Satwantsingh denied the allegations made by Jaswant Kaur and he contended that he was always willing to take her back to his house and to keep and maintain her as his wife.
3. And he further contended that he had filed a suit for restitution of conjugal rights against her in the Court of the Senior Sub-Judge of Delhi within whose jurisdiction he was residing. Satwantsingh further contended that the Nainital court had no jurisdiction to entertain the application under Sec. 488, Cr. P.C The learned Magistrate held that the Nainital court had jurisdiction, and further held that the wife was entitled to get Rs. 30/- per month for her maintenance while she was living apart from him. The point of jurisdiction was in my opinion wrongly decided by the Magistrate.
4. Sub-sec. (8) of Sec. 488 lays down that proceedings under the section may be taken against any person in any district where he resides or is, or where he last resided with his wife. The application of the wife should, therefore, have been filed at Delhi where the husband resided or at the place where the husband last resided with the wife. It was conceded that on the date of the application, the husband was not residing in the district of Nainital. It was also conceded that the last place where the husband and the wife resided together was Delhi. Jaswant Kaur admitted this in very clear terms in her own statement. It was, however, contended on her behalf that since the husband used casually to visit the wife at Haldwani and Nainital in March and April, 1952, that fact gave the Nainital court jurisdiction over the matter. A casual visit of the nature, even if conceded, would not amount to “residing” within the meaning of that term under sub-sec. (8) of Sec. 488. The dictionary meaning of the word “reside” is:—
“To dwell permanently or for a considerable time; to have ones settled or usual abode; to live in or at a particular place.”
5. Flying or casual visits cannot, therefore, amount to residence. The meaning of the word “reside” was considered by a Bench of this Court in Rifaqatullab Khan v. Emperor A.I.R 1947 All. 4. and it was observed that the word meant: to live or to have a dwelling place or an abode.” The mere fact that a person visited a place occasionally or casually would not amount to such residence. If a husband went to his father-in-law's place in course of his attempt to persuade his wife to go back to his home, it could not be said that the husband had been residing in his father-in-law's house. Moreover, the occasional visits in this case took place about two years before the application was filed. It was therefore evident that the learned Magistrate had no jurisdiction to entertain the case and the entire proceedings in this court were null and void.
6. The application of Sec. 531 of the Code cannot be invoked in the present case where the question of jurisdiction had been raised before the Trial Magistrate, but was wrongly overruled by him. Where the question of jurisdiction had been raised before the Trial Magistrate it was his duty to determine the point, otherwise the provisions as regards jurisdiction given in the Criminal Procedure Code would never be enforced. Sec. 531 cannot be applied to such a case. Sec. 531 does not entitle a Magistrate to proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction. It does not in fact confer jurisdiction on the Magistrate.
7. Under the circumstances I accept the reference and set aside the order dated 4-2-55 passed by the Magistrate with direction to Smt. Jaswant Kaur that she may seek her remedy in the court having jurisdiction.
8. Reference accepted.