Jaswinder Singh and anr. vs Paramjit Kaur

B.S. Yadav, J.

The facts leading to this petition are that Paramjit Kaur respondent, wife of Jaswinder Singh has filed an application under section 125 of the Code of Criminal Procedure for maintenance for herself & for her minor son Bantu aged 21/2 years. That application has been filed against the husband as well as his father Jagjit Singh. Both have now filed the present petition under Section 482 of the Code of Criminal Procedure for quashing the proceedings so far as Jagjit Singh is concerned on the ground that under section 125 of the Code of Criminal Procedure fatherinlaw is not bound to pay any maintenance. It is further alleged that the said Bantu is residing with Jaswinder Singh and Paramjit Kaur''s application for his custody was dismissed by this Court on 5.5.1983 and it was held that it was in the interest and welfare of the child that he should remain in the custody of his father and, therefore, she cannot claim any maintenance for Bantu and her prayer for maintenance qua Bantu should also be quashed.

The learned counsel for the respondent admitted that under section 125 of the Code of Criminal Procedure fatherinlaw was not bound to pay maintenance to his daughterinlaw or her son. He argued that Jagjit Singh had been made a party because the husband of the Paramjit Kaur is joint with his father and while assessing the amount of maintenance for her, the assets of the joint family will have to be considered. He further argued that in the petition no prayer has been made against Jagjit Singh and he has been made a party so that he might supply the list of joint Hindu family properties. I am of the opinion, that when Jagjit Singh is not liable to pay any maintenance to Paramjit Kaur, he should not have been made a party to the proceedings. It will be unnecessary harassment to him if he is forced to attend the hearings of the case. In case Paramjit Kaur wants the list of the joint Hindu family properties then she can examine her fatherinlaw as a witness. Therefore, as far as Jagjit Singh is concerned, there can be no denying the fact that thecontinuance of the proceedings against him will be an abuse of the process of the Court.

The learned counsel for the petitioners further argued that vide order dated 5th May, 1983 passed in Criminal Writ No. 126 of 1983 Mst. Paramjit Kaur v. Shri Jaswinder Singh and others, S.C. Mittal J. had held that it was difficult to hold that the welfare of Bintu (in the present proceedings his name has been referred as Bantu) requires that his custody be made over to Paramjit Kaur. It may be mentioned here that Bantu is residing with his father Jaswinder Singh and the above titled Writ Petition was filed by Paramjit Kaur for the custody of the child. The learned Judge dismissed that petition.

The learned counsel for the respondent argued that the learned Judge in that order had remarked that the judgment would not affect or prejudice the rights of Paramjit Kaur to approach the appropriate Court for obtaining appropriate orders of custody or guardianship of Bantu under the Guardianship and Wards Act and, therefore, if in future Bantu comes in the custody of Paramjit Kaur in appropriate proceedings on in appeal against the above order then she would have to file another petition for maintenance regarding Bantu and it will lead to multiplicity of proceedings. At this stage we are not concerned what would happen in future. The question to be seen is whether Paramjit Kaur can claim any maintenance regarding Bantu while he is not residing with her and on the other hand is residing with its father. The obvious answer is in the negative. Jaswinder Singh cannot be asked to pay compensation to Paramjit Kaur while he himself is maintaining the child.

The learned counsel for the respondent argued that section 125 of the Code of Criminal Procedure does not speak about the custody of a child while considering the question of maintenance for him. This argument has been noticed just to reject. If the child is in the custody of its father then the question of neglecting or refusing to maintain it does not arise and, therefore, the clear inference is that in proceedings under section 125 of the Code of Criminal Procedure the question of the custody of the child is material. The learned counsel for the respondent has cited Kuppal Krishtappa v. Premaleelamani, minor by mother, A.I.R. (29) 1942 Madras 705. The facts of that case are not applicable to the present case. In that case the husband and the wife had separated and a compromise was arrived at that time under which the wife was to get hand worth Rs. 400/ for her maintenance and a house to live in. It was also a term of the compromise that the child would be brought up by its father and get it married. Afterwards the husband sent a notice to the wife telling her that she should return the child or he would not be responsible for its maintenance or its marriage. The wife replied that she was under no obligation to return the child and that he must be maintain it. Eventually the wife filed an application for an allowance of Rs. 50/ as maintenance of the child. The Magistrate ordered payment of Rs. 10/ P.M. In the revision filed by the husband, one of the grounds taken was with regard to the custody of the child and his right to refuse the maintenance unless the child was returned to his care. It was remarked :

Whatever may be the correct construction of the settlement deed, it seems to me clear that as long as the child is with mother, the mother must be given sufficient to maintain the child. If the father has a right to the custody of the child, he can at any time institute proceedings for the purpose. An adult can be coerced into coming into proper custody by refusing maintenance; but a child has no such choice; it must remain with whatsoever takes it. So that it would be improper for the Court to refuse maintenance for the child merely because it was of opinion that the petitioner had no right to the custody of the child."

The above remarks only show that even if the custody of the child with one of the spouses is improper, even then the spouse having the custody of the child, can apply for maintenance. It was nowhere held that even if the child was not in the custody of the wife, she could claim maintenance for it. In proceedings under section 125 of the Code of Criminal Procedure, legality or illegality about the custody of the child need not be gone into. The question to be considered is whether the wife, who claims maintenance for the child, is having custody of the child or not. If it is not in her custody then she cannot claim maintenance for it.

For the reasons given above, I allow the present petition and quash the proceedings so far as Jagjit Singh is concerned as well as regarding Paramjit Kaur''s prayer for maintenance for Bantu. The application under section 125 of the Code of Criminal Procedure will continue against Jaswinder Singh so far as the prayer of Paramjit Kaur regarding maintenance to her is concerned.

The parties have been directed to appear in the trial Court on the date fixed in the case.

Pettition alllowed.