ORDER
D.V. Shylendra Kumar, J.
1. This is a most frivolous writ petition abusing the jurisdiction of this Court under Article 227 of the Constitution of India,
2. Petitioner is the husband of the first respondent and father of the second respondent. Respondent Nos. 1 and 2 had filed a Miscellaneous Petition under the provisions of Section 125 of the Code of Criminal Procedure [for short the Code”) seeking for maintenance in Crl. Misc. No. 155/2003 before the II Addl. Family Court at Bangalore. The said petition was ordered in terms of the order dated 19-2-2004 (copy at Annexure-C] awarding monthly maintenance of Rs. 1,000/- in favour of each of the respondents during the lifetime of the petitioner and till the second respondent – daughter gets married.
3. This order has not been made subject matter of any appeal However, it appears the petitioner had failed a Crl. Miscellaneous No. 191/2004 under Section 126 of the Code which continues to remain pending on the file of the very court.
4. It further transpires that in the miscellaneous petition, the family court had granted an order of stay of arrest warrant that bad been issued in the execution proceedings that had been levied by the respondents in the main Cr. Misc. No. 191/2004. It appears that the order of stay staying the issue of arrest warrant has not been so extended beyond 17-4-2006. It is at this stage the writ petitioner has approached this Court questioning the discretion of the family court in not extending the stay of the arrest warrant beyond 17-4-2006 which will have the effect of the arrest warrant being executed and the petitioner being incarcerated.
5. Sri Gangadharappa, learned Counsel for the petitioner has put forth several contentions. It is urged that the learned Judge of the Family Court has not followed requisite procedure as contemplated under the proviso to Sub-sections (3), (4) and (5) of Section 125 of the Code before issue of the arrest warrant; that the petitioner had made offers to maintain the respondents if they should come and live with him; that the family court lacks jurisdiction to pass the order of maintenance as it was not a competent court in the light of the provisions of Sections 7 and 8 of the Family Courts Act, 1964 [for short the Act”].
6. The argument regarding the family court not following the procedure contemplated under Section 125 of the Code before the issue of arrest warrant is an argument without airy basis and not supported by any material or conduct of the petitioner. It is more an empty offer only to postpone the evil date and to escape the consequences of the maintenance order. The petitioner has not shown any bonafides in filing this writ petition. The present writ petition arises during the pendency of the execution proceedings in the maintenance petition that was ordered in the year 2004. The execution proceedings were also levied during the year 2004. The petitioner neither appeared during the proceedings of the main petition nor during the proceedings in the execution of the order passed in the main petition but has come to the court only when arrest warrant was sought to be executed through the Police.
7. Sri Murthy, learned Counsel appearing for the respondents submits that the respondents had to make herculean efforts to have the petitioner served in the execution proceedings and that the petitioner had avoided any service of notice of any mode and it became inevitable for taking out arrest warrant in the name of the petitioner for satisfaction of the maintenance order.
8. Developments clearly indicate that the petitioner is unwilling person to provide for any maintenance in favour of the respondents. So far as non-compliance with the procedure to be followed before issue of arrest warrant is concerned, I am fully satisfied that the issue of arrest warrant by the executing court for executing the order of maintenance is in consonance with the required procedure. It has been issued only after maintenance order was not satisfied and as a last resort by the family court.
9. In so for as question of jurisdiction is concerned, the Family Court has jurisdiction in the matter in terms of Sub-section 2 of Section 7 of the Act If a petition for maintenance under Section 125 of the Code could have been maintained before any court of I Class Magistrate in the area, the Family Court necessarily has the jurisdiction and in fact the jurisdiction of the Magistrate of Class-I is removed and conferred on the family court This position is achieved in terms of the language of Section 8 of the Act In fact, a combined reading of Sub-section (2) of Section 7 and 8 of the Act makes it very clear that the maintenance petition under Section 125 of the Code could not have been filed before the Magistrate of the I-Class but only before the family court
10. In terms of Section 126(1) of the Code, which reads as under
126. Procedure- (1) 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
a petition under Section 125 of the Code should have been filed before a court having jurisdiction at a place where the person against whom the proceedings are taken or within the court in whose jurisdiction the wife resides etc.
11. In terms of Section 126(1)(b) of the Code, the petition, if a family court had not been established, could have been presented before the court of Magistrate of First Class at Bangalore city, in view of the fact that the claimants-petitioners resided at No 12, 1st ‘A’ Main, Sbivanagara, West of Chord Road, Bangalore-10. It is this jurisdiction of the Court of Magistrate of First Class that is conferred on the family court in terms of the provisions of Section 8 of the Act Therefore, the petition as filed under Section 125 of the Code by the respondents in this writ petition was very much tenable before the Family Court and accordingly contention regarding want of jurisdiction is liable to be rejected.
12. I do not find any merit for interference in the matter under Article 226/227 of the Constitution of India, either on foots or in law. The writ petition is dismissed accordingly.