Ashraf Alam and Others vs Ashfaque Alam

Mihir Kr. Jha, J.—Heard counsel for the petitioners. In the opinion of this Court, the impugned order rejecting the prayer of the petitioners for grant of maintenance u/s 125 of the Code of Criminal Procedure (Cr.P.C.) only on the ground of lack of territorial jurisdiction by the Family Court, Patna cannot be sustained.

The Court below for this purpose ought to have looked into averments made in paragraph No. 12 of the application filed by the petitioners which would go to show that as a matter of fact after marriage the petitioner were residing with their parents in the house of their father opposite party but when they along their mother were driven away from the house of their father, they were forced to take shelter in their Nanihal i.e. the naihar of their mother, which is at Patna. In fact when this part of their statement was sought to be tested in the cross-examination of the mother of the petitioners but she could not be impeached or discredited. From paragraph No. 4 of her deposition in the Court it would be clear that she had stood by her statement that she alongwith her minor sons and daughter was residing in her Naihar at Phulwarisharif in Patna.

On the basis of such clear averment of the petitioners there was hardly any scope for the Court below to start making any roving enquiry as with regard to the territorial jurisdiction inasmuch as Section 126(1) Cr.P.C. itself lays down the jurisdiction of the Court in the following terms:-

"126. Procedure.-(1) Proceedings u/s 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."

(underlined for emphasis)

The aforementioned provision u/s 126(1) Cr.P.C. therefore read with the evidence on record would make it clear that the proceedings u/s 125 Cr.P.C. at the instance of the minor sons was maintainable even at Patna being the Naihar of the mother of petitioners where they were living (sic-with ?) her after driven away by their father. The touchstone for creating jurisdiction u/s 126(1) is not based on the place of residence of the applicant but the place of residence of either the husband or the wife and therefore the analogy and discussions in the impugned order is apparently in teeth of the provisions u/s 126(1) Cr.P.C.

In that view of the matter, the impugned order is set aside and the matter is remitted back to the court below. Let it be noted that this Court has only gone into the issue of the territorial jurisdiction and therefore, other plea including that the petitioners had become adult and therefore, were not now entitled for grant of maintenance would be definitely required to be gone into by the Court below in accordance with law. In view of the fact that it is the case of the year, 1996 the Court below is directed to conduct the hearing of this case on day to day basis and pass a firm order with regard to grant of maintenance to the petitioners from the date of filing of application, within a period of 3 months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions this Civil Revision application is allowed.