The Uttarakhand High Court held that a claim for maintenance under Section 125 of the Code of Criminal Procedure, 1973 can be entertained where the wife or the person seeking maintenance resides genuinely, even if her permanent home lies elsewhere, rejecting the notion that mere absence of permanent residence ousts jurisdiction. The Court set aside the Family Court, Nainital’s order dismissing the application for lack of territorial jurisdiction and remitted the matter for fresh consideration.
Background & Facts
The Dispute
The revisionists, Sumaiya and her minor child, filed an application for maintenance under Section 125 of the Code of Criminal Procedure, 1973 before the Principal Judge, Family Court, Nainital, asserting that they were residing with Sumaiya’s maternal aunt at Nainital. The respondent, Amir, contended that the proceedings were instituted mala fide to harass him and that the proper forum for the maintenance claim was Delhi, where the marriage was solemnized and the child was born.
Key Facts
- The marriage of Sumaiya and Amir was solemnized at Delhi and their child was born there.
- Sumaiya, along with her minor child, resided with her maternal aunt at Nainital for about two months prior to filing the maintenance application and continued to reside thereafter.
- The application under Section 125 CrPC was filed before the Principal Judge, Family Court, Nainital.
- The Family Court, Nainital, dismissed the application on 12 November 2025 as not maintainable, holding that Sumaiya’s permanent residence was at Delhi.
- The revisionists contended that the residence at Nainital was genuine and not colourable.
- The respondent argued that the proceedings were instituted to harass and that the matrimonial home remained at Delhi.
Procedural History
- 12.11.2025: Order passed by learned Principal Judge, Family Court, Nainital in Misc. Criminal Case No.90 of 2024 dismissing the Section 125 CrPC application for lack of territorial jurisdiction.
- Date unspecified: Criminal revision preferred before the Uttarakhand High Court challenging the aforesaid order.
- 06.10.2026: Judgment delivered by Hon’ble Alok Mahra, J., allowing the revision, setting aside the impugned order and remitting the matter.
Relief Sought
The revisionists sought quashing of the Family Court’s order, a direction to consider the maintenance application on its merits, and award of costs.
The Legal Issue
The central question was whether, under Section 126(1) of the Code of Criminal Procedure, 1973, the requirement of ‘residence’ for invoking jurisdiction in a Section 125 CrPC proceeding equates to permanent residence, or whether a genuine and substantive residence, absent any permanent home, suffices to sustain jurisdiction.
Arguments Presented
For the Appellant/Petitioner
The revisionists contended that Section 126(1) CrPC uses the term ‘resides’ and does not impose a permanent residence condition; they relied on the statutory language to argue that their stay at Nainital with maternal aunt constituted a genuine residence, sufficient to confer jurisdiction upon the Family Court, Nainital. They emphasized that the mere fact of their parental and matrimonial home being at Delhi could not, absent a finding of sham or colourable residence, defeat the jurisdiction otherwise available under the statute.
For the Respondent/State
The respondent argued that the application was filed mala fide to harass him, pointing out that the marriage and the child’s birth occurred at Delhi, and that the matrimonial home remained there. It was submitted that the revisionists had merely set up a temporary stay at Nainital to create jurisdiction, and that such a colourable residence ought to disentitle them from invoking the jurisdiction of the Family Court, Nainital.
The Court's Analysis
The Court began by noting that Section 126(1) CrPC merely specifies the place where proceedings under Section 125 CrPC may be taken and does not prescribe that the wife or the person claiming maintenance must establish ‘permanent residence’ at the place where the proceedings are instituted. The expression ‘resides’ employed in the statutory provision cannot be equated, as a matter of law, with ‘permanent residence’.
The Court observed that the mere absence of permanent residence, by itself, is not sufficient to oust the jurisdiction otherwise conferred by the statute. However, where a person sets up a temporary or fictitious residence solely to confer jurisdiction upon a particular Court, without genuine intention to reside there, such conduct may disentitle the person from invoking that jurisdiction.
Applying these principles, the Court examined the pleadings and found that the revisionists had resided with their maternal aunt at Nainital for about two months prior to filing the application and had continued to reside thereafter, with an intention to continue residing there. There was no allegation or evidence that the stay was sham, fictitious or merely colourable.
The Court held that the lower court erred in proceeding principally on the premise that the permanent residence of the revisionist was at Delhi, which did not accord with the plain language and scope of Section 126(1) CrPC. Consequently, the impugned order could not be sustained in law.
“The mere absence of permanent residence, by itself, is not sufficient to oust the jurisdiction otherwise conferred by the statute.”
The Court therefore allowed the criminal revision, set aside the order dated 12.11.2025 passed by the learned Principal Judge, Family Court, Nainital, and remitted the matter to that Court to consider and decide the application under Section 125 CrPC on its own merits, after affording due opportunity of hearing to both parties.
The Verdict
The Criminal Revision was allowed. The order dated 12 November 2025 passed by the learned Principal Judge, Family Court, Nainital in Misc. Criminal Case No.90 of 2024, which had dismissed the maintenance application under Section 125 CrPC for lack of territorial jurisdiction, was set aside. The matter was remitted to the Family Court, Nainital, to consider and decide the application on its merits, in accordance with law, after providing both parties an opportunity to be heard. No monetary relief or costs were awarded in the judgment.
What This Means For Similar Cases
Residence Need Not Be Permanent
The judgment clarifies that residence for the purpose of Section 126(1) CrPC does not require permanence; a genuine and substantive stay, even if temporary, suffices to attract jurisdiction. Practitioners should therefore focus on the nature and intention behind the residence rather than merely the duration or the existence of a permanent home elsewhere.
- Look for evidence of actual stay, intention to continue, and connection to the place.
- Duration alone is not decisive; even a short-term genuine residence can suffice.
Genuine Intent Determines Jurisdiction
The Court emphasized that a residence set up solely to confer jurisdiction, without genuine intention to reside, is colourable and may be disregarded. Thus, when challenging jurisdiction, the opposing party must demonstrate that the residence is sham or fictitious; mere absence of permanent residence is insufficient.
- Examine whether the residence was arranged primarily for litigation advantage.
- Look for lack of personal belongings, absence of family, or immediate departure after filing.
Burden of Showing Sham Residence Lies on the Party Challenging Jurisdiction
The onus to prove that a residence is colourable or sham rests on the party objecting to jurisdiction. Absent such proof, the Court will uphold the jurisdiction based on the asserted residence. This shifts the evidentiary burden and prevents premature dismissal of maintenance claims on jurisdictional grounds.
- The party asserting lack of jurisdiction must lead evidence of sham residence.
- Mere allegations of ulterior motive, without proof, will not succeed.
