Vs. Khajasab  INSC 1217 (15 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO.1236 OF 2009 (ARISING OUT OF SLP
(CRL) NO.4589 OF 2008) Dawalsab ... Appellant Versus Khajasab ... Respondent O
R D E R ALTAMAS KABIR, J.
This appeal is directed against the judgment and order dated 12th
March, 2008, passed by the Karnataka High Court in Revision Petition (FC)
No.27/2007 (Crl. Misc.) dismissing the same. The said revision petition had
been filed against the order passed by the learned Judge, Family Court at
Bijapur, on 9th February, 2007, in Crl. Misc. No.187 of 2004, dismissing the
petition filed by the appellant under Section 125 Cr.P.C.
The appellant is the father of the respondent and had filed the
aforesaid petition under Section 125 Cr.P.C. for payment of monthly maintenance
of Rs.5,000/- from the respondent on the ground that having become old and not
having any source of income, he was unable to maintain himself, whereas the
respondent was an employee of the Anjuman College, Syndagi and was well off.
petition was dismissed as indicated hereinabove.
In the revision filed by the appellant before the High Court, the
High Court was of the view that the learned Family Judge had not committed any
error of law or material irregularity which would warrant interference with the
impugned order. The High Court proceeded on the basis that the learned Family
Judge had rightly held that it did not have jurisdiction to entertain 3 the
petition which ought to have been filed in the Court within whose jurisdiction
the appellant was resided. Reliance was placed on a decision of this Court in
Vijay Kumar Prasad v. State of Bihar [2004 (5) SCC 196], wherein, after
considering the provisions of Section 125 Cr.P.C., under which the appellants
were also entitled to apply for maintenance, this Court took note of the
provisions of Section 126 Cr.P.C. which are also relevant for our purpose and
are extracted hereinbelow :- "126. Procedure - Proceedings under Section
125 may be taken against any person in any district - (a) where he is, or (b)
where he or his wife resides, or (c) where he last resided with his wife, or as
the case may be, with the mother of the illegitimate child."
Court took note of the words "resides", "is" and
"where he last resided" with his wife.
4 In the sand decision, while taking notice of another decision of
this Court in the case of Jagir Kaur v. Jaswant Singh [AIR 1963 SC 1521], this
Court held that the expression "is" has to be applied to the place
where the person from whom maintenance is sought is normally available and
cannot be construed to be a mere fleeting presence.
Relying on the sand decision, the High Court held that the
appellant was not entitled to maintain the revision petition before the Family
Court at Bijapur, since the respondent was working in the Anjuman College at
Appearing for the appellant, Mr. Girish Ananthamurthy, learned
Advocate, submitted that the High Court had proceeded on an erroneous basis in
interpreting the provisions of Section 126(1)(a) Cr.P.C. without taking note of
the very initial wordings of Section 126(1) Cr.P.C. which provides that
proceedings under Section 125 5 Cr.P.C. may be taken against any person in any
district [emphasis supplied] and qualifies clauses (a), (b) and (c) thereof.
Learned counsel submitted that in the instant case having regard to the
provisions of Sections 7 and 8 of the Family Courts Act, 1984, the only forum
in which the application for maintenance under Section 125 Cr.P.C. could have
been filed by the appellant was before the Family Court of the district which
was situated at Bijapur.
since Syndagi also fell within the district of Bijapur and was subject to the
jurisdiction of the Family Court at Bijapur, the petition had been rightly
filed before the learned Judge of the Family Court. Learned counsel urged that
the High Court had misconstrued the provisions of Section 126(1) Cr.P.C.
without taking note of the provisions of the Family Courts Act, 1984.
On behalf of the respondent, Mr. Shankar Divate, learned Advocate,
attempted to justify the decision of the High Court on the same lines on which
the High Court had passed its order.
The only question which we are called upon to consider is whether
the learned Family Judge as also the High Court were correct in determining the
question of jurisdiction on the basis of the expression used in Section
126(1)(a) Cr.P.C. without taking into consideration the provisions of Sections 7
and 8 of the Family Courts Act, 1984, or the opening words of Section 126(1)
Cr.P.C. The wordings have been interpreted by the High Court and the Family
Court to mean that the petition ought to have been filed in Syndagi where the
respondent (son of the appellant) was working. Both the learned Family Court
Judge and the High Court appear to have missed the fact that an application
under Section 125 Cr.P.C. has to be taken against any person in 7 any district
where the person is. In the instant case, Syndagi also falls within Bijapur
district. Accordingly, under Section 126(1)(a) Cr.P.C., the jurisdiction for
filing any proceeding under Section 125 would be in Bijapur itself where the
Family Court for the district is situated and since Syndagi is within the said
district. Furthermore, as far as the jurisdiction of the Family Court with
regard to civil matters is concerned, the same is set out in Section 7(1) of
the Family Courts Act, 1984.
(2) of Section 7 provides for the jurisdiction of the Family Courts with regard
to relevant criminal matters and reads as follows :- "7. Jurisdiction. -
Subject to the other provisions of this Act, a Family Court shall also have and
exercise - (a) the Jurisdiction exercisable by a Magistrate of the first class
under 8 Chapter IX (relating to order for maintenance of wife, children and
parents) of the Code of Criminal Procedure, 1973; and (b) such other jurisdiction
as may be conferred on it by any other enactment."
8(b) of the above Act which is also relevant to the facts of this case is also
extracted hereinbelow :- "8. Exclusion of jurisdiction and pending
proceedings - Where a Family Court has been established for any area - (a)
magistrate shall, in relation to such area, have or exercise any jurisdiction
or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
In the instant case, it is the Family Court, therefore, which has
jurisdiction to entertain the petition filed by the appellant. The petition 9
had been rightly filed before the Family Court at Bijapur, which is situated in
Bijapur, since under Section 8(b) of the Act the magistrate's jurisdiction
under Chapter IX Cr.P.C. has been excluded. Reading the opening words of Section
126(1) Cr.P.C. with Section 7(2)(a) of the Family Courts Act, 1984, it is quite
clear that it was the Family Court at Bijapur which had the jurisdiction to
entertain the petition filed by the appellant under Section 125 Cr.P.C. The
decision cited on behalf of the respondent did not have occasion to consider
these aspects of the matter which are peculiar to the facts of this case.
Having regard to the above, we allow the appeal and set aside the
orders passed, both by the Family Court and the High Court, and remand the
matter to the Family Court at Bijapur for fresh consideration in accordance
The costs of this appeal is assessed at Rs.25,000/- which is to be
paid to the appellant by the respondent.
________________J. (ALTAMAS KABIR)