Ra] Kumari Vijh v. Dev Raj Vijh

“ The of the Court delivered

Judgment was by SHINGHAL, «Jr—This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14. 1974, allow-ing the revision application of respondent Dev Raj Viih and dis— missing the appellant’s application dated March 18, 1969, under sec-tion 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.

Appellant Raj Kumari Vijh was married to respondent Dev Raj .

Vrjh in Delhi, in June 1950. It is the admitted case of the parties that they were living separately from 1953. The appellant filed her

gsmr. RAJ KUMARI v. DEV RAJ (Siting/ml, J.) 999 first application for maintenance under section 488 of the Code, in 1955, but it was dismissed. The respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar It Pradesh).

was ultimately dismissed} on appeal on March 29, 1968. In the meantime the appellant filed a suit against the for respondent recovery of her “st-ridhen” in Delhi in 1956. It was decreed on appeal by the Delhi, High Court in_1967, for Rs. 6,458 The /'—. appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife. Nothing came out of it and she filed the present ,.application_under section 48-8 of the Code in the Court of the Delhi Magistrate on March 18, 1969. It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at »—-..,.__ Village Lampur, P. S.

Narela, Delhi, towards the endof December 1968, because the res— pondent visited her there for a settlement and for non—execution of the decree which she had obtained for Rs.

6,458 /— on account of her “stridhan”. It was stated in the application that the parties lived at Lamlpur as husband and wife and there was cohabitation. The appellant prayed for an order allowing her Rs. for 450/— per month maintenance as the respondent had sufficient means but had neglected or refused to maintain her.

The respondent filed a reply on April 29, in 1969 which, accord-ing to the Magistrate, there was no specific denial of the averment that the parties last resided together at An Lampur. objection was however taken that as the earlier application was dismissed on Feb— ruary 2, 1956, the second application was barred the on principle of res judicata. An objection was taken to the jurisdiction of the Delhi Court onthe ground. that the respondent never resided permanently or temporarily in Delhi. We have not found it possible to go through the reply because it has been stated counsel for by the parties that the original record has been destroyed. The Magistrate passed an order for production of evidence. The respondent thereupon prayed that the question of jurisdiction be decided before may recording the evi— denge. That was not agreed to by the magistrate. He made an order on November 19, 1969 that. the of question jurisdiction must await the recording of the evidence on the whole case. The res— pondent did not challenge that order or for apply permission to file an additional reply. On the other he hand, asked for the holding of an identification parade for the of purpose showing that some of the appellant’s witnesses did not even know him. Both the led “W“mfiwu-m. their parties

evidence, although it appears that the did like respondent not to avail of the which

opportunity was given to him to lead evidence t on the merits. He did not even for apply permission to file any ad-ditional reply when theMagistrate recorded tthe appellant’s evidence “w on her' application for maintenance as a whole.

Ultimately the Magistrate made his final order on May 21, 1973. He took the View that there was no denial of specific the appellant’s allegation that the parties last resided together, as 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— ability of the second application because of the dismissal of the first application, was not pressed by the respondent and after referring to the entire evidence in details, he reached the conclusion that he had the jurisdiction to entertain the application, and granted main— tenance allowance at the rate of Rs. 125/- per menth, with effect from March 18, 1969, along with an order regarding the mode of payment of the arrears. The respondent applied for a revision of that order, 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 Code) on the ground that the Delhi Magistrate had no jurisdiction to entertain it. As the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the maintenance allowance, the appellant has come up to this Court by special leave.

In its impugned judgment dated March 14, 1974, the High Court has “recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the View that the Delhi Court had no jurisdiction to entertain the appellant’s application under section 488 of the Code. Counsel for the appellant has ve-hemently urged that the finding of the, High Court is incorrect, but as it is a finding of fact, we shall proceed on the assumption that it does not call fort interference in this appeal. The question how— ever remains whether section 531 of the Code would be applicable to the case? The High Court has held that the section would not be applicable, and that is why it has passed the impugned order for the dismissal of the application of the appellant under section 488 “mm-u. of the Code. The High Court has taken that view for the following reasons,—

(i) The objection as to jurisdiction was raised “right at the

first instance by the husband”.

(ii) The respondent “specifically reserved his right to file a

written reply on merits after the question of jurisdiction was decided”.

(iii) As the respondent had “reserved his right to lead evi—

dence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on dim merits .....

“obvious and failure of 1“ (iv) There was prejudice justice” to

the respondent as he never led evidence on the merits. (v) It Was necessary for the appellant to prove that the res-

pondent had refused and neglected to maintain her. and that “obviously requires an opportunity to be given to 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”.

I 7 SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, L) 1001 (vi) “Before a decision on merits can be given the husband

has the undoubted request (sic) to lead evidence on merits”.

, (vii) A proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to section 531 of the Code, when an objection has been taken against its maintainability, for otherwise the provision R relating to jurisdiction would become Section nugatory. 5 31 “can cure the infirmity after, the case has been fought on merits.” "

We have examined these but grounds, we are constrained to say that they are not tenable in the facts and} circumstances of this case. Section 531 of the Code reads an follows,— ,_ “531. No finding, sentence or order of any Criminal um Court shall be set aside merely on the ground that the in-quiry, trial or other in the proceeding course of which it was arrived at or passed, took in place a wrong sessions division, district, sub-division or other local unless it area,

appears that such error has in fact occasioned failure a of justice.”

The section therefore relates to defect a of jurisdiction. As has been stated by this Court in Purushottamdas Dalmia v. The State of West Bengal(‘) those are two of types’ jurisdiction of a criminal court, namely, (1) the jurisdiction with to the of respect power the court to try! particular kinds of offences, and (2) its territorial jurisdiction. “W, While the former goes to the root oh the matter and any transgression of it makes the entire trial voiid, the latter is not of a and is perempfOry character curable under section 531 of the Code. Territorial jurisdiction is provided “just as a matter of mind convenience, keeping in

the administrative point of View with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled him against and the convenience of the wit-nesses who have to before the Court”.

appear Sub-section (8) of section 488 in fact provides that proceedings under the section “may be takem against in any person any distribt where he resides or where is, or

be last resided with his wife or, as the case may be, the mother of the illegitimate child.” This therefore is ordinarily the ment as to the of require— filing an application under secti0n 488 within the limits of the jurisdiction of the magistrate concerned.

'So where a magistrate has the “power” to try a particular_appli— cation under section 488, and the controversy relates solely to his terntorial jurisdiction, there should, ordinaril be no reason section 531 of the , why Code should not be applicable to the order by him. It made

has therefore to be examined whether there were any such circumstances in this for case which the High Court could fiably refuse to justi— apply the provisions of section 531- (1) [1962] 2 SCR. 101.

The first reason why the High Court has not given the benefit of section,53l to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent “right at the first instance.” Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the» impression that section '531 of the Code, would, at any rate, validate his order. That, accOrding to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531. Reliance in this connection has been placed on Radharam' v. Rahim SardarG), Sakuntalat v. Thiruma-layya(2), State v. Tavam Naika(3), Sultan Chand v. Yogindra Nat/z Baz (4), and Satwant’Singh v. Smt. jaswam Kaur (5).

As is apparent, section 531 does not entitle a magistrate, who is not a magistrate of the class referred to in sub—section (1) of section 488, to proceed with an application for maintenance. In fact even a DistriCt Magistrate, a Sub-Divisional Magistrate or a. Magistrate of the first class will not be entitled to proceed with such an appli-cation if he knows that the proceedings do not fall within his juris-diction under sub-section (8) of section 488. The true meaning of section 531 is. that while it will not uphold an order passed in pro-ceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when. he knows that he has no such jurisdiction, there is no reason why a magistrate, who is otherwise duly empowered to make an order under sub—section (1) of section 488 of the Code, cannon proceed with an application under that sub-section .for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction. Section 531 cannot thus be said to be inapplicable to a case Where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the proceeding. and the magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. In other words, there is no reason why. in such a case, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdic-tion, unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it. If the magistrate. in this case, had thought of assuming jurisdiction under section 531. he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdiction.

We have gone through the cases which have been cited the by counsel for the respondent. Radharani and another v. Rahim Saidar (supra) was a case where the magistrate proceeded with the trial

(1) A.t.RIT§467:Zicutta 459. (2) (1966) 2 M.L.J. 326.

G3) A.I.R. 1959 Mysore 193. (4) A-I-R-1944 Peshawar

in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction. This is however not So in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making a reference to the entire evidence which was led on the point. Moreover he took note of the fact that the respondent had not, speci-fically dened that he lived at village Lampur with the appellant. This is therefore not a case. where the Magistrate proceeded with the application even though he had the knowledge that it did not fall within his jurisdiction. The same is the position in regard to Sakuntala v. Thirumalayya (supra) and it also cannot avail the res-pondent. We have gone through State v. Tavara Naika (supra). It was not a case under section 488 of the Code. What has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a material irregularity pertaining to jurisdic— tion when it is brought to the notice of the Court before the corn-mencement of the trial. It does not therefore lay down anything different from what has been stated in Rad/761111111. v. Rahim Sardar (supra). It was a case where the accused was committed to a wrong sessions division, and the mistake was corrected because the trial had not commenced. Sultan Chand & another v. Yogindra Nat/z Ba; (supra) was also not a case under section 488 of the Code. It has een held in that case that when the question of jurisdiction has been raised before the trial magistrate, it is his duty to determine the point, otherwise the provisions as regards jurisdiction would never be en~ forced and that section 531 cannot be applied to such a case. As has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, con— sidered the evidence in his order and reached the conclusion that the application was maintainable in his court. This is therefore a difierent case. Satwant Singh v. Smt; Jaswant Kaur (supra) was a case under section 488 of the Code. It has been held there that where the question of jurisdiction had been raised before the trial magistrate, it was his duty to determine the point, and that he can~ not proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction. As has been shown, this was not so in the present case. It would thus appear that the High Court erred in taking the View that section 531 would not be applicable to-this case merely because an objection as to jurisdic-tion was raised by the respondent “right at the first instance.”

The second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decided. We find that this is clearly a mis— statement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved any such right to file a written reply on the merits at a later stage, after the question of jurisdiction was decidedagainst him. On the other hand, we find that the Magistrate specifically overruled the objection of the respondent, and made an order directing the parties to addutre their evidence on the whole case and specifically rejected

the respondent’s application for deciding the of question jurisdiction in the first instance. The Magistrate has clearly stated that an order was made by him for the production of evidence “in the case", and that he decided to defer a decision of the of question jurisdiction until after the evidence had been recorded as a whole. The Magis-trate has further stated that the did respondent not file his further or additional reply even then. The High Court therefore undoubtedly erred in thinking that the respondentrspecifically reserved his right to file a written reply on the merits later As on. has been shown, no such reservation was permitted by the magistrate, and counsel for the respondent was not able to show how the respondent could uni-laterally make such a reservation for himself. It be may that, in a given case, it may be advisable for a to magistrate confine the evi-dence of the parties, in the first instance, to any preliminary objection relating to jurisdiction, and to decide the controversy on the merits thereafter, but as this was not so in the present case, we are unable to find any justification for the second ground mentioned by the High Court.

The third ground of the High Court is also untenable, for it has refused to apply section 531 on the ground of for prejudice the reason that the respondent had reserved his to right lead evidence on th merits and did not deliberately give that up right. Here agai . counsel for the respondent was unable to show how it could be said that the respondent made such any reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his for application

deciding the question of jurisdiction as a preliminary question and had passed an order for the production of all the evidence in the case. If therefore the respondent in persisted refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in the taking view that he had reserved the right to lead evidence at a later stage.

The High Court has taken the View that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits. But the High Court failed to appreciate that the respondent had to thank himself for that pre-dicament. He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect. He also knew that the Magistrate had called upon the parties to lead all their evidence. The

that order appellant obeyed and examined her witnesses. The

in respondent persisted thinking that, the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it suffi~ cient to. confine his evidence to the of question jurisdiction. So it" he deliberately refrained from his producing evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice. AS it is, Counsel for the respondent has not been able to refer to any application of the respondent, whether oral or documentary, expressing a desire to lead his evidence on the merits. The fact of the matter therefore is that the respondent had decided that he would not lead evidence any on the merits, and con-fined his evidence to the question of jurisdiction. It may be that, as

has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.

The fifth ground mentioned by the High Court is that before an order could be passed under section 488(1) it was necessary to prove that the husband had refused or neglected to maintain his wife, m‘ and that an

required opportunity to be given to the husband to his But the prove

case. argument is futile because the respondent did not set up any defence on the merits. On the other hand, the Magistrate found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had her neglected or had refused to maintain her.

In its sixth ground the High Court has stated that before a deci-sion could be given on the merits, the husband could make a request for permission to lead evidence on merits. It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magis— trate.

Lastly, the High Court has taken the view that a proceeding can-not be maintained by a court which has no jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relat-ing to jurisdiction wotuld become This nugatory. point has already been considered earlier and need not be re—examined.

It is thus quite clear that the Court High committed a serious error of law in refusing to invoke section 531 in the facts and cir-cumstances of this case. It is not in that the controversy Magistrate who took the proceedings, on the appellant’s application under sub— section (1) of section 488, was one of the magistrates mentioned in that sub—section. The raised respondent a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their evidence. He specifically rejected the for application confining the evidence to the question of jurisdiction, or to that try as a preliminary in. issue. It is therefore futile to contend that the Magistrate gave him-mm self jurisdiction by recourse to section 531 of the Code. On the other hand in his final order, he out the set points which arose for consideration on the question of jurisdiction, made a mention, at length, of the entire evidence on that and took into question consi~ deration the conduct of the and the law respondent case as well as the respondent’s reply. All that led him to the conclusion that he had jurisdiction to try the application. There is therefore no_ reason why section 531 should not be held to be to this applicable case. As has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to that there of say was a failure justice, because the respondent did not lend his evidence on the merits. As we have pointed out, he did 'so deliberately and in defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case. The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and -made an order that he shall make a monthly allowance of Rs.‘125/- per mensem for her maintenance.

The appeal is allowed and the impugned order of the High Court dated March 14, 1974, is set aside, with costs.

P.B.Rt \ Appeal allowed.

CIVIL APPELLATE JURISDICTION : Criminal Appeal No. 447 of an. 1.974. . .

(Appeal by Special Leave from the Judgment and Order dated the 14th March 1974 of the Delhi High Court in Criminal Revision Petition No. 61 of 1974.

Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant.

V. C. Mahajan and S. L. Anéja, for respondent.