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CR.RA/9720/2007 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 97 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MUNNABHAI
RAJAKBHAI VAGDANI - Applicant(s)
Versus
MINOR
AMAN MUNNABHAI VAGDANI THROUGH HIS MATERNAL GRAND FAT & 1 -
Respondent(s)
=========================================================
Appearance
:
MS
PREETI S PARMAR for
Applicant(s) : 1, MR SV PARMAR for
Applicant(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR HR
PRAJAPATI for Respondent(s) : 1,
MR KP RAVAL, APP for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 22/06/2009
ORAL
JUDGMENT
This
revision under Section 397 of the Code of Criminal Procedure has
been filed by the petitioner challenging the legality and validity
of order dated 5-12-2006 passed in Cri.Misc.Appln. No.79 of 2003 by
the learned Judicial Magistrate (First Class), Mangrol, Junagadh
District, whereby the petitioner was directed to pay maintenance to
his minor son @ Rs.750/- per month from the date of application.
Heard
learned advocate for the petitioner, Mr.S.V.Parmar, learned advocate
for the respondent No.1, Mr.H.R.Prajapati and learned Addl. Public
Prosecutor for the respondent No.2-State, Mr.K.P.Raval.
It
is submitted by Mr.Parmar that nowhere it has come on record that
the petitioner at any point of time had neglected and refused to
maintain the minor child Aman Munnabhai Vagdani. It is also
submitted that for getting custody of the child, the petitioner has
filed Civil Misc. Appln.No.130 of 2004 under the Guardian and Wards
Act before the Addl. District Judge and Fast Track Court Court at
Junagadh. However, said application was rejected vide order dated
12-10-2007. Said order was challenged by him before the High Court
wherein this Court was of the view that as the matter was conducted
before the trial court under the Guardian and Wards Act and not
under the Mohammedan Law, he was directed to approach the court
below under the Mohammedan Law. Hence, said application was
permitted to be withdrawn. Thereafter, Cri.Misc.Appln.No.14 of 2009
was filed by the present petitioner under the Mohammedan Law before
the court below which is pending at present. Hence, according to
him, a jurisdictional error has been committed by the trial court in
granting maintenance to the minor especially when the petitioner is
the natural guardian as the mother is no more alive. Further, a
gross illegality has been committed by the trial court in ordering
to pay maintenance to minor without considering that the petitioner
is always ready and willing to keep minor with him as his natural
guardian and he is ready and willing to maintain him as his son. He
has also taken me through the deposition of the grandfather of the
child-Bahudurbhai Mamadbhai Vadsaria. He has placed reliance upon
the following judgments:
AIR
1986 Supreme Court page 1186 in the case of State of Madhya Pradesh
and others Vs. I.Sardar D.K.Jadav, head note (B) of which
reads as under:
(B)
Constitution of India, Art.226 – WRITS – Scope of – Jurisdiction of
administrative authority depending on preliminary finding of fact –
Correctness of, can be determined by High Court under Article 226.
(1979)2
Supreme Court Cases 316 in the case of Bai Tahira Vs. Ali Hussain
Fidaalli Chothia and another; and
(1992)1
Supreme Court Cases 534 in the case of Shrisht Dhawan (Smt.) Vs. M/s
Shaw Brothers. Mr.Parmar relied on paragraph No.19 of the said
judgment which reads as under:
The
invalidity which could vitiate sanction was error in jurisdictional
fact at the time of grant of permission, as valid sanction was sine
qua non for Controller’s jurisdiction. A jurisdictional fact is one
on existence or non-existence of which depends assumption or refusal
to assume jurisdiction by a Court, Tribunal or an authority which is
a fact which must exist before a Court can properly assume
jurisdiction of a particular case. Mistake of fact in relation to
jurisdiction is an error of jurisdictional fact. No statutory
authority or tribunal can assume jurisdiction in respect of
subject-matter which the statute does not confer on it and if by
deciding erroneously the fact on which jurisdiction depends the
Court or tribunal exercises the jurisdiction then the order is
vitiated. Error of jurisdictional fact renders the order ultra vires
and bad [para 19]
Relying
on the above referred reported judgments, it is submitted by
learned advocate, Mr.Parmar that in this case also, the petitioner
is the natural guardian of Aman being father and the mother is no
more in the world and hence, the petitioner is the only person as
the father to get custody of minor Aman and so, question does not
arise to grant maintenance to minor son as he is natural guardian
(father of minor Aman). It is also submitted that nothing has come
on record to show that the petitioner has refused or neglected to
maintain Amin and this fact is not considered by the trial court
and this is the error of jurisdictional fact and so, the order
passed by the trial court is required to be quashed and set aside.
Mr.Prajapati,
learned advocate for the respondent No.1, however submitted that
unnatural death of the mother of the minor child had taken place at
the matrimonial home and for which, the present petitioner along
with other accused were charge sheeted for the offences punishable
under Sections 498-A, 306 and 114 of IP Code and were sent to jail
for a considerable time. On conclusion of trial, he was acquitted by
the trial court vide judgement and order dated 17-2-2003r passed in
Sessions Case No.45 of 2002. Said order of acquittal has been
challenged by grandfather of the minor child by filing Cri. Revision
Application No.76 of 2003 which is admitted by this Court and is
pending for final disposal. It is thus clear that from the date of
arrest of the accused i.e 10-4-2002, minor Aman, who was aged two
years then and presently aged 9 years, was in the custody of the
grandfather and is still in his custody and which has been held by
the Court to be legal. When custody of the minor child with the
grandfather is held to be legal, it is the bounden duty of the
petitioner as a father to maintain his minor child. He has relied on
a decision of the Apex Court in the case of Koli Odha Samat Vs.
Bai Balu Jeram, reported in 1973 Cri.Law Journal page 1103. It
has been held by the Apex Court in paragraph No.3 of the above
reported case as under:
It
is undoubtedly true that sub-section (1) of Section 488 of the
Criminal Procedure Code contemplates neglect or refusal to maintain
one’s own wife or legitimate or illegitimate children, who are
unable to maintain themselves. But so far as the minor children, who
are not able to maintain themselves are concerned, the law is that
wherever they are found, their father is bound to maintain them
under the provisions contemplated by Section 488 of the Criminal
Procedure Code. One reason, which has guided the courts to come to
this conclusion is that minor children are never capable of taking a
decision and therefore, they are not capable of deciding whether the
offer of their father to maintain them provided they stayed with him
should be accepted or refused. They are also incapable of deciding
who shall have their actual custody. Under these circumstances, if
these children are found to be in possession of their mother and if
mother unreasonably refuses to reside with her husband, minors
cannot be considered liable for the same and their father, who is
legally obliged to maintain them, cannot escape from his liability
under Section 488 of the Criminal Procedure Code on the ground that
he would maintain them provided they are put in his custody. The
question as to who is better entitled to the custody of minors, is
not relevant for the purposes of deciding the rights of the minors
to get maintenance under Section 488 of the Code. Therefore, even if
the minors are found in the actual custody of the wife, who refuses
to stay with her husband, the husband is, nonetheless, obliged to
provide them maintenance contemplated by Section 488 of the Code.
This view is fortified even by the scheme of the section, because,
reference to the first proviso which is attached to sub-section (3)
of Section 488 of the Code, shows that the Legislature has
contemplated only the offer made by the husband to maintain his
wife, and the ground of the wife for her refusal to stay with her
husband. This proviso significantly omits the consideration of the
offer made by the father to the minor children to reside with him.
In
view of the aforesaid law laid down by the Apex Court in the
reported judgment, it is submitted by Mr.Prajapati that the
question of custody of the minor is not material for deciding the
right enforceable under Sec.488 of Cr.P.C and hence, the petitioner
is obliged to pay maintenance to his minor child wherever he is
residing.
This
Court has gone through the impugned order passed by the trial Court
as well as the judgments relied on by the learned advocates
appearing for the respective parties.
It
is an admitted position that Cri.Misc.Appln. No.134 of 2001 was
filed by the deceased Noorjahan (mother of the minor) under Sec.125
of Code of Criminal Procedure. No doubt, the matter was settled
between the parties and thereafter, she went to her matrimonial
home. However, within short span of time, she committed suicide by
taking poison on 10-4-2002. Hence, complaint for the offence
punishable under Secs. 498-A, 306 and 114 of IP Code was filed
against the present petitioner and other accused and the petitioner
was sent to judicial custody. At the end of trial, he was acquitted
by the trial Court. Same has also been challenged in the High Court
which is also pending.
It
is clear from the above that before the death of Noorjahan, she was
compelled to leave the matrimonial home because of the alleged
torture committed by the accused and other family members. She then
filed application under Sec.125 of the Cr.P.C. for her maintenance
and also for the maintenance of her minor son.
Merely
because settlement had taken place between the parties and she went
with minor, it could not be said that petitioner was ready and
willing to keep Noorjahan and minor son voluntarily. As mentioned
above, within no time, she committed suicide which speaks volume
about the conduct of the present petitioner. Merely because he has
been acquitted by the court, it cannot be said that he has a
willingness to maintain minor son. It is an undoubted fact that
minor was born and brought up by his grandfather when he was two
years old and now he is aged about 9 years. In such circumstances,
it can be easily said that the petitioner had neglected and refused
to maintain minor son as it is admitted by the grandfather in his
deposition that it was conveyed by him to take the custody of the
minor.
It
appears from the record that Cri.Misc.Appln.No.130 of 2004 was also
filed by the petitioner under the Guardian and Wards Act against his
father-in-law for getting custody of the minor child Aman. However,
said application was dismissed by the learned Addl. District Judge
and 2nd Fast Track Court, Junagadh vide order dated
12-10-2007. When said order was challenged by him before the High
Court, this Court was of the view that since the matter was
conducted before the trial court under the Guardian and Wards Act
and not under the Mohammedan Law, he was directed to approach the
court below under the Mohammedan Law. Said application was then
permitted to be withdrawn. The petitioner then preferred
Cri.Misc.Appln.No.14 of 2009 under the Mohammedan Law before the
court below which is pending adjudication. It is thus clear that
minor son Aman is with grandfather and is maintained by him. Hence,
it is the bounden duty of the petitioner being the father to pay
maintenance as ordered by the court below.
It
has been held by the Apex Court in Koli Odha Samat (supra)
that the question as to who is better entitled to the custody of
minors is not relevant for the purposes of deciding the rights of
the minors to get maintenance under Section 488 of the Code.
Therefore, even if the minors are found to be in the actual custody
of the wife, who refuses to stay with her husband, the husband is
obliged to provide them maintenance contemplated by Section 488 of
the Code wherever the minors are staying. In the present case,
custody of the minor has not been given by the court below to the
petitioner. The minor is presently residing with the grandfather
which is held by the court to be legal. In such circumstances also,
the petitioner is obliged to pay maintenance to his minor son even
though he is not staying with him. It is to be noted that till the
date of filing of this revision application and orders passed
therein, the petitioner did not even take care to provide any fund
for the maintenance of his son nor has he shown any bona fide
intention indicating that he is ready and willing to deposit any
amount towards his maintenance. Merely by filing application under
the Guardian and Wards Act or under the Mohammedan Law stating few
words that he is inclined to get custody of the minor is not
sufficient to show that he is ready to discharge his duty as father
in maintaining his child. This also clearly and distinctly shows
that he has neglected and refused to maintain the child.
In
view of the above, there is no substance in the submission made by
learned advocate for the petitioner, Mr.Parmar that the trial court
has committed a jurisdictional error in view of the fact that the
petitioner as a father has never refused and neglected to maintain
the minor Aman or to keep his custody. As this Court does not see
any substance in this revision application, the same deserves to be
dismissed.
This
revision application is accordingly dismissed. Rule is discharged.
Interim relief granted earlier stands vacated.
Office
is directed to send back the record and proceedings forthwith.
(M.D.SHAH,J.)
radhan/
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