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‘resides’ Under Section 126 Crpc To Be Liberally Interpreted: Calcutta High Court

prangya paramita jena ,
  27 May 2024       Share Bookmark

Court :
High Court of Jammu & Kashmir and Ladakh at Srinagar
Brief :

Citation :

Case title:

Masarat Jan vs. Fayaz Ahmad Parray

Date of Order:

17.05.24

Bench:

Hon’ble Justice Mr. Mohammad Yousuf Wani

Parties:

Masarat Jan vs. Fayaz Ahmad Parray

SUBJECT

The object is the application filed by the Petitioner seeking to condone the delay in filing the main Appeal preferred against the Respondent under section 19 of the Family Courts Act, 1984

IMPORTANT PROVISIONS

Limitation Act

  • Section 5: Extension of prescribed period in certain cases.

Family Courts Act, 1984

  • Section 19: Appeal.

Code of Criminal Procedure

  • Section 125: Order for maintenance of wives, children and parents
  • Section 126:  Procedure for proceedings u/s 125

ARGUMENTS ADVANCED BY THE APPELLANT

  • The appellant had filed a petition under section 125 of CrPC before the Trial Court in Srinagar seeking monthly allowance in form of maintenance. The petition had been returned by the Trial Court due to lack of jurisdiction. 
  • The appellant is suffering from illegality and perversity as the learned trial court has not appreciated the law on the jurisdiction and place of trial as a subject: petition; that the learned trial court has failed to appreciate the fact that appellant has been presently residing at her parental home since the start of her matrimonial dispute. 
  • That the petition is maintainable under the provisions of Section 126 of the Code, petition for maintenance can be maintained by a wife against the husband in any District where she or her husband resides.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The respondent submitted that the appellant has shown her residence at Khalmulla, Ganderbal to which the respondent has admitted the same. 
  • Accordingly, the petition was supposed to be filed in District Ganderbal. 

JUDGEMENT ANALYSIS

  • The hon’ble court held that the order passed, suffers from patent illegality and deserves to be set aside. 
  • As per section 7 of the Family Courts Act and section 126 of the CrPC, the learned trial court is competent to hear the maintenance petition. 
  • It will be in the realm of conventional wisdom to say that in matrimonial dispute causing the dissolution of a marriage the wife used to take refuge at her parental house. It was not a case of other civil or criminal nature where the learned trial court could have doubted the fact of present residence of the appellant has been tactfully signaled by her to have invoked a wrong jurisdiction. 
  • Sections 125 & 126 of the Code including rate of maintenance provided for wives, children and parents and the manner of presenting application for maintenance, especially where the application is to be made with regard to the place where the proceedings are to be held are social legislations enacted for assisting the distressed wives, deserted children and shiftless parents. These are also their convenience which has to be taken into consideration while determining the true meanings of Section 126. 
  • These provisions of Section 126 are in parametria with the new provisions of Section 488 Clause (8) on the correction of errors in bonds under the sealed order of the erstwhile repealed State Code of Criminal Procedure – Svt. 1989, was enacted by way of amendment for redressal of the hardships and sufferings of the distressed wives, other forsaken children or neglected parents and such other benches were compelled to seek the relief of maintenance enshrouded in the proceedings at a place of residence of the respondent in his ehability as the husband, father or the son as it were. This could be so in a sense that it might be difficult for a wife to seek a legal redress against her husband in a place where he is physically located. 
  • The expression “resides” occurring in the Section 126 Clause- (1) (b) is needed to be accorded a liberal and logical interpretation to meet the object of the legislation. 
 
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