Dawalsab vs Khajasab

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."

This Court took note of the words "resides",

"is" and "where he last resided" with his wife. 4 In the said 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.

5. Relying on the said 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 Syndagi.

6. 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.

Accordingly, 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.

6

7. 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.

8. 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.

Sub-section (2) of Section 7 provides for the

jurisdiction of the Family Courts with regard to

relevant criminal matters and reads as follows :-

"7. Jurisdiction. -

(1) ......................................................................................................

(2) 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."

Section 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) .......................................................................................

(b) no 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);

(c) .......................................................................................

9. 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.

10. 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 with law. 10

11. 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)

________________J.

(CYRIAC JOSEPH) New Delhi Dated:15.07.2009