minal Appeal No 143 of 1961
Appeal by special leave from the judgment and order dated May 22 1961 of the Punjab High Court Chandigarh in Criminal Revision No 1448 of 1960
section K Kapur for the appellants
Harnam Singh Chadha and Harbans Singh for the respondent
February 13
The judgment of the Court was delivered by SUBBA RAO J
This appeal by special leave raises the question of true construction of section 4888 of the Code of Criminal Procedure
Jagir Kaur the first wife of jaswant Singh was married to him in 1930
Tile said jaswant Singh 76 was employed in the police force in Africa
The Maklawa ceremony took place about 7 years after the marriage when the respondent was away In Africa
Thereafter the first appellant was taken to her mother in law s house and after living there for a few years she returned to her parental house
5 or 6 years thereafter jaswant Singh came to India on 5 months  leave and the couple lived in jaswant Singh s or his mother s house at Hans Kalan it is not clear to whom the house belongs for a period of 5 months and thereafter jaswant Singh left for Africa
Before going to Africa jaswant Singh married another wife and took her with him to Africa
After 5 or 6 years he came back to India on leave and took the first appellant also to Africa
There she gave birth to a daughter the second appellant
As disputes arose between them he sent her back to India promising to send her money for her maintenance but did not lo so
In the year 1960 he came back to India
It is also in evidence that he had purchased property in Ludhiana District for Rs 25000 
When he was admittedly in India the first appellant filed a petition under section 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate Ludhiana within whose jurisdiction the respondent was staying at that time
The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant who was a minor claiming maintenance at Rs 200 per month for both of them on the ground that the respondent deserted them and did not maintain them
The respondent filed a counter affidavit denying the allegations and pleading that the said court had no on the ground that he never resided within its district nor did he last reside with the first appellant in any place within itsjurisdiction
The learned Magistrate held that the petitioner appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the 77 husband and wife last resided together in the District of Ludhiana
On the merits he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs 100 per month and for the daughter at the rate of Rs 50 per month
The respondent preferred a revision against that order to the Additional Sessions judge Ludhiana and the learned Addi tional Sessions judge agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision
The husband preferred a revision to the High Court of Punjab against that order
The High Court disagreed with both the lower Courts on the question of jurisdiction
It held that the husband s permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein
On that view it set aside the order of the learned Additional Sessions judge and dismissed the petition
Hence the present appeal
Mr Kapur learned counsel for the appellants contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under section 488 of the Code of Criminal Procedure was filed by the first appellant and therefore the learned Magistrate had territorial jurisdiction to entertain the application
In any view he argued the respondent submitted to the jurisdiction of the Magistrate and therefore he could no longer question the validity of his order on the ground of want of jurisdiction
On the other hand the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein
At the outset we must say that the first appellant did not raise the plea of submission 78 either in the pleadings or in any of the three Courts below
The question is a mixed question of fact and law
This Court will not ordinarily allow such questions to be raised for the first time before it and we do not see in this case any exceptional circumstances to depart from that practice
We cannot therefore permit the first appellant to raise this belated plea
The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under section 488 of the Code of Criminal Procedure
The question turns upon the interpretation of the relevant provisions of section 4888 of the Court which demarcates the jurisdictional limits of a Court to entertain a petition under the said section
Section 488 8 of the Code reads  Proceedings under this section may be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child
The crucial words of the sub section are resides is and where lie last 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 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
79 The first word is resides
A wife can file a petition against her husband for maintenance in a Court in the District where he resides
The said word has been subject to conflicting judicial opinion
In the Oxford Dictionary it is defined as  dwell permanently or for a considerable time to have one s settled or usual abode  to live in or at a particular lace
The said meaning therefore takes in both a permanent dwelling as well as a temporary living in a place
It is therefore capable of different meanings including domicile in the strictest and the most technical sense and a temporary residence
Whichever meaning is given to it one thing is obvious and it is that it does not include a causal stay in or a flying visit to a particular place
In short the meaning of the word would in the ultimate analysis depend upon the context and the purpose of a particular statute
In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense
The purpose of the statute would be better served if the word resides was understood to include temporary residence
The juxtaposition of the words is and  last resided in the sub Section also throws light on the meaning of the word resides
The word  is as we shall explain later confers jurisdiction on a Court on the basis of a causal visit and the expression last resided about which also we have something to say indicates that the Legislature could not have intended to use the word resides in the technical sense of domicile
The word resides cannot be given a meaning different from the word resided in the expression  last resided and therefore the wider meaning fits in the setting in which the word resides appears
A few of the decisions cited at the Bar may be useful in this context
In Santpoornam vs N Sundaregan 1 it was held that the word resides implied something more than 1  80 a brief visit
but not such continuity as to amount to a domicile
In Khairunissa vs Bashir Ahmed 1 on a consideration of the relevant authorities it wits pointed out that a casual or a flying visit to a place was excluded from the scope of the word resides
A full Bench of the Allahabad High Court in Flowers vs Flowers 2 expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not
covered by the word resides
In Balakrishna vs Sakuntala Bai 3 it was held that the expression reside implied something more than stay and implied some intention to remain at a place and not merely to pay it a casual visit
In Charan Das vs Surasti Bai 2 it was held that the sole test on the question of residence was whether a party had animus manendi or an intention to stay for an indefinite period at one place and if he had such an intention then alone could he be said to reside there
The decisions on the subject are legion and it would be futile to survey the entire field
Generally stated no decision goes so far as to hold that resides in the sub section means only domicile in the technical sense of that word
There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place
They agree that there shall be animus manendi or an intention to stay for a period the length of the period depending upon the circumstances of each case
Having regard to the object sought to be achieved the meaning implicit in the words used and the construction placed by decided cases thereon we would define the word resides thus  a person resides in a place if he through choice makes it his abode permanently or even temporarily  whether a person has chosen to make a particular place his abode depends upon the facts of each case
Some illustra tions may make our meaning clear  i A living in 1 Bom
2 All
3 AIR 1942 Mad
4 AIR 1940 Lah
449 81 a village goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two
2 A a tourist goes from place to place during his peregrinations and stays for a few days in each of the places he visits A a resident of a village who is suffering from a chronic disease goes along with his wife to a town for medical treatment takes a house and lives there for about 6 months
4 A a permanent resident of a town goes to a city for higher education takes a house and lives there alone or with his wife to complete his studies
In the first two cases A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits
It cannot therefore be said that he resides in the places he visits
In the last two illustrations though A has a permanent house elsewhere he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other his temporary abode or residence
In the last two cases it can be said that though he is not a domicile of those places he resides in those places
The cognate expression last resided takes colour from the word  resides used earlier in the sub section
The same meaning should be given to the word  resides and the word  resided that is to say if the word resides includes temporary residence the expression last resided means the place where the person had his last temporary residence
But it is said that even on that assumption the expression can only denote the last residence of the person with his wife in any part of the world and that it is not confined to his last residence in any part of India
If the words where he last resided with his wife are construed in vacuum the construction suggested by the learned counsel for the respondent may be correct but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the 82 Code of Criminal Procedure
Section 2 1 of th Code extends the operation of the Code to the whole of India except the States of Jammu  Kashmir that is to say the provisions of the Code including section 488 8 thereof have operation only throughout the territory of India except the States of Jammu  Kashmir
If so when sub section
8 of section 488 of the Code prescribing the limits of Jurisdiction speaks of the last residence of a person with his wife it can only mean his last residence with his wife in the territories of India
It cannot obviously mean his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court
It would therefore be a legitimate construction of the said expression if we held that the district where be last resided with his wife must be a district in India
In In re Drucker No 2 Basden Ex Parte the words or in any other place out of England in sub section
6 of section 27 of the Bankruptcy Act 1883 fell to be construed
The words were wide enough to enable a Court in England to order that any person who if in England would be liable to be brought before it under the section shall be examined in any place out of England including a place not within the jurisdiction of the British Crown
The Court held that the words must be read with some limitation and the jurisdiction conferred by that section does not extend to places abroad which are not within the jurisdiction of the British Crown
Wright J rejecting the wider construction sought to be placed on the said words observed at p 211  It seems to me that that restriction in prima facie necessary
It is impossible to suppose that the Legislature intended to empower the Court to order the examination of persons in 1 83 foreign countries  for instance in France or Germany In Halsbury s Laws of England Vol 36 3rd edn at p 429 it is stated    the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance and with no other conduct
In other words the extent of a statute and the limits of its application are prima facie the same
 It may be mentioned that the said observations are made in the context of Parliament making a law in respect of a part of the territory under its legislative jurisdiction
If it has no power at all to make a law in respect of any foreign territory the operation of the law made by it cannot obviously extend to a country over which it has no legislative control
It is therefore clear that section 4888 of the Code when it speaks of a district where a person last resided with his wife can only mean where he last resided with his wife in any district in India other than Jammu  Kashmir
 The third expression is the word is
It is inserted between the words resides and last resided
The word therefore cannot be given the same meaning as the word resides or the expression last resided bears
The meaning of the word is apparent if the relevant part of the subsection is read
It reads  Proceedings under this section may be taken against any person in any district where he  is   The verb is  connotes in the context the presence or the existence of the person in the district when the proceedings are taken
It is much wider than the word resides it is not limited by the animus manendi 84 of the person or the duration or the nature of his stay
What matters is his physical presence at a particular point of time
This meaning accords with the object of the chapter wherein the concerned section appears
It is intended to reach a person Who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country but returns to that district or a neighbouring one on a casual or a flying visit
The wife can take advantage of his visit and file a petition in the district where he is during his stay
So too if the husband who deserts his wife has no permanent residence but is always on the move the wife can catch him at a convenient place and file a petition under section 488 of the Code
She may accidentally meet him in a place where he happens to come by coincidence and take action against him before lie leaves the said place
This is a salutary provision intended to provide for such abnormal cases
Many illustrations can be visualized where the utility of that provision can easily be demonstrated
To summarize  Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose
Section 488 prescribes alternative forums to enable a deserted wife or a helpless child legitimate or illegitimate to get urgent relief
Proceedings under the section can be taken against the husband or the father as the case may be in a place where he resides permanently or temporarily or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated
Let us now apply the said principles to the instant case
To recapitulate the relevant facts  the respondent was born in India in Ludhiana District he was married to the first appellant in the year 1930 he migrated to Africa and took up a job there 85 as a police officer he came back to India in or about 1943 and lived with the first appellant in a house at Hans Kalan for about 5 months and thereafter he left again for Africa 5 or 6 years thereafter he again came to India on leave and took her to Africa where she gave birth to a daughter the appellant was sent back to India and she was staying in Ludhiana District with the child the respondent s mother is staying in the aforesaid village in the same district and it is also not disputed that the respondent has purchased property worth Rs 25000 in Ludhiana District in the name of his minor children by his second wife when the petition was filed he was admittedly in the district of Ludhiana indeed notice was served on him in that district he filed a counter affidavit obtained exemption from personal appearance at the time of hearing and thereafter left for Africa
It is not necessary in this case to express our opinion on the question whether on the said facts the respondent resides in India but we have no doubt that he last resided in India
We have held that temporary residence with animus manendi will amount to residence within the meaning of the provisions of the sub section
When the respondent came to India and lived with his wife in his or in his mother s house in village Hans Kalan he had a clear intention to temporarily reside with his wife in that place
He did not go to that place as a casual visitor in the course of his peregrinations
He came there with the definite purpose of living with his wife in his native place and he lived there for about 6 months with her
The second visit appears to be only a flying visit to take her to Africa
In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate Ludhiana
That apart it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him
Thee said Magistrate had jurisdiction 86 to entertain the petition as the said proceedings can be taken against any person in any district where he is
We therefore  hold that the First Class Magistrate Ludhiana had jurisdiction to entertain the petition under section 488 8 of the Code
The next question relates to the quantum of maintenance to be awarded to the appellants
The Magistrate on a consideration of the entire evidence having regard to the salary of the respondent and the value of the property he purchased awarded maintenance to the wife at the rate of Rs 100 per month for herself and at the rate of Rs 50 per month for the maintenance of her minor child
The Additional Sessions judge on a reconsideration of the evidence accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him
The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court
that is why the only question argued before the High Court was that of jurisdiction
As we have held that the view accepted by the High Court was wrong we set aside the order of the High Court and restore that of the Magistrate First Class Ludhiana
In the result the appeal is allowed
Appeal allowed


Summary:
The respondent who was born in the Ludhiana District was married to the first appellant
He took up a job in Africa and after staving there for some time he came to India and stayed with his wife for 5 months He then went to Africa and after staying there for 5 or 6 years came to India and took the appellant with him to Africa and a daughter was born to them there
The appellant was sent back with the child and she was staying in the District of Ludhiana with the child
It is admitted that the respondent had bought property worth Rs 25000 in that District and that the petition for maintenance was filed by the appellant and the notice was served on him while the respondent was in that District
The respondent filed a counter affidavit obtained exemption from personal appearance it the time of hearing of that petition and thereafter left for Africa
74 The 1st Class Magistrate Ludhiana held that he had jurisdiction to entertain the petition filed by the appellant under section 488 of the Code of Criminal Procedure 1898 as the appellant and the respondent had last resided in the District Ludhiana
He awarded for the wife s maintenance at the rate of Rs 100 per month and for the daughter at the rate of Rs 50 per month
A revision petition filed by the respondent before the Additional Sessions judge was rejected
But the High Court holding that the 1st Class Magistrate had no jurisdiction to entertain the petition allowed the revision petition filed by the respondent
The present appeal is by way of special leave granted by this Court
The main contention on behalf of the appellants before this Court was that the respondent having last resided with his wife in the District of Ludhiana and he having been there at the time when the petition tinder section 488 was presented the Magistrate had jurisdiction to entertain the petition
It was further contended that the respondent having submitted to the jurisdiction of the Magistrate could not question his jurisdiction
Held that Ch
XXVI of the Code of Criminal Procedure providing for maintenance of wife and children intends to serve a social purpose
Section 488 prescribes alternative forums to enable a deserted wife or a helpless child legitimate or illegitimate to get urgent relief
Proceedings under the section can be taken against the husband or the father as the case may be in a place where he resides permanently or temporarily or where lie last resided in any District in India or where he happens to be at the time the proceedings are initiated
The expression resides implied something more than a brief visit but not such continuity as to amount to domicile
Sampoornam vs N Sandaram  referred to
A casual or flying visit to a place for a temporary purpose was not covered by the word residence
Khairunnissa vs Baskir Ahmad Bom
781 Flowers vs Flowers 1910 1
R 32 All
203 and Balakrishna vs Sakuntala Rai A 1
R  referred to
The sole test on the question of residence was whether a party had animus manendi or an intention to stay for an in definite period at the place
75 Charan Das vs Surasti Bai A 1
R referred to
The appellant not having raised the plea of submission to jurisdiction either in the pleadings or in any of the courts below will not in the absence of special circumstances be allowed to raise it before this Court
Where a legislature has no power to make laws in respect of any territory the operation of the law made by it cannot extend to that territory
The facts and circumstances of the case show that the respondent last resided with his wife in a place within the jurisdiction of the First Class Magistrate Ludhiana and that he was in a place within the jurisdiction of the Magistrate on the date when the appellant filed her application for maintenance against him
In re Druker No 2 Basden Ex Parte referred to