Gopal vs Nandakishore and Another

J.N. Patel, J.—The applicant is a minor son of the non-applicant No. 1 born out of the wedlock between his mother Geetabai and the non-applicant No. 1.

The applicant through his mother, filed an application for maintenance before the Judicial Magistrate, First Class, 3rd Court at Akola, vide Misc. Criminal Case No. 121 of 1993, on the ground that though his mother Smt. Geetabai has relinquished her right of maintenance in consideration of having received a sum of Rs. 10,000/-, it does not disentitle the applicant from claiming the maintenance. It was also contended that the said deed of relinquishment was got executed by Geetabai under coercion and undue influence, but the said contention is not under examination of this Court. Admittedly, the learned Magistrate found that the non-applicant No. 1 has neglected and refused to maintain the applicant who was at the relevant time aged 5 years and that Geetabai, the mother of the applicant, had no right to relinquish the claim of the applicant by executing the alleged divorce deed or consent letter and found that the applicant is entitled for maintenance at Rs. 100/- per month.

It appears that during the pendency of the application for maintenance, the non-applicant No. 1-father filed Misc. Judicial Case No. 128 of 1993 before the District Judge, Akola, seeking custody of the applicant. This came to be decided on 18.11.1994 in favour of the non-applicant No. 1, directing Smt. Geetabai to hand over custody of the applicant to the non-applicant No. 1-father Nandakishore. The non-applicant No. 1 being aggrieved by the judgment and order dated 31.3.1994 passed by the learned J.M.F.C. in Misc. Cri. Application No. 121 of 1993, preferred a revision in the Court of Sessions at Akola. The learned 3rd Additional Sessions Judge, Akola, partly allowed the revision of the non-applicant No. 1-father by upholding the grant of maintenance at the rate of Rs. 100/- per month from 5.1.1993 till 18.11.1993 and by omitting fraction, had cancelled the order by setting aside, by giving effect from 1.12.1994.

It is the case of the applicant that the learned Additional Sessions Judge could not have passed an order of cancelling maintenance with effect from l.12.1994 as on the date the order came to be passed by the learned Judicial Magistrate, First Class, granting him maintenance, the applicant was in the custody of his mother and in any case, if there was any change in the circumstances, the non-applicant No. 1 ought to have approached the Court of Judicial Magistrate, First Class for modification or annulment of the order, u/s 127 of the Code of Criminal Procedure. It is further submitted that the learned Additional Sessions Judge was swayed away by the order passed in the custody case on 18.11.1994 in granting the relief to the non-applicant No. 1. It is submitted that the learned Additional Sessions Judge though relied on the order dated 18.11.1994 passed by the District Judge in Judicial Case No. 128 of 1993, has curtailed the maintenance with effect from 18.11.1993 to 30.11.1993 which is an error apparent on the face of the record.

It is further submitted that the mother of the applicant has preferred First Appeal before this Court being First Appeal No. 186 of 1995; in custody matter which has been admitted, and on 14.8.1996, an arrangement has been reached between the parties in which the applicant has been allowed to reside with his mother and the non-applicant No. 1 is permitted to visit him on Sunday and other days at the convenient time and, therefore, the applicant continues to reside with his mother and requires maintenance as granted by the learned Magistrate. Therefore, the impugned order passed by the Additional Sessions Judge, Akola, deserves to be quashed and set aside.

It is submitted on behalf of the non-applicant No. 1 that insofar as the error on the part of the Additional Sessions Judge, Akola, is concerned, restricting to the grant of maintenance till 18.11.1993, appears to be a typographical mistake as it ought to have been 18.11.1994, i.e. the date of the order passed by the learned District Judge in M.J.C. No. 128 of 1993. It is submitted that the further operative part of the order makes it clear that the award of maintenance is set aside from 1.12.1994, so it would mean that the grant of maintenance to the applicant was approved by the learned Additional Sessions Judge till 18.11.1994. It is further submitted that as the mother of the applicant failed to hand over the custody of the child to the non-applicant No. 1 in terms of the order passed by the District Judge in M.J.C. No. 128 of 1993, it was her responsibility to maintain the applicant and the applicant could not fetch maintenance with effect from 18.11.1994 as the non-applicant No. 1 was ready to maintain the applicant, if he was given in his custody and, therefore, the order passed by the Additional Sessions Judge does not call for any interference.

Without adverting to the merits of the matter as to whether the applicant is entitled for maintenance in spite of their being a decision that his custody should be with the non-applicant No. 1- father, what this Court finds that the mother of the applicant has preferred first appeal before this Court in which, by an arrangement, the parties have agreed that the child applicant would continue to be in the custody of the mother. Further after passing of the order on 18.11.1994, directing that the child be handed over to the non-applicant No. 1-father, the child continued to be in the custody of the mother. In the peculiar facts and circumstances of the case, it would be proper if the applicant is maintained by the non-applicant No. 1-father. Secondly, the learned Addl. Sessions Judge fell in error while exercising his jurisdiction in revision by cancelling the maintenance allowance when the non-applicant No. 1 had a remedy available u/s 127, Cr. P.C. to seek alteration in the order by virtue of there being a change in the circumstance i.e. the decision of the custody case in favour of the non-applicant under which the child was to be handed over to the non-applicant No. 1 with effect from 19.11.1994 and could have directed the non-applicant No. 1 to take recourse to such remedy.

Therefore, this Court finds that the impugned order deserves to be quashed and set aside and is accordingly quashed and set aside. It is made clear that the parties would be at liberty to take recourse to proper remedy in case there is any change in the circumstance, but till then the applicant would be entitled to the maintenance allowance granted by the Trial Court. Rule is made absolute in the aforesaid term with costs.