Moti Ram vs Ist Addl. District Judge and Others

Palok Basu, J.—The short question involved in this writ petition is whether the petition u/s 125 Cr.P.C. filed by the contesting opposite party Smt. Triveni can be entertained at Bareilly and also whether the child Km. Saraswati said to have born out of a wedlock of Moti Ram, petitioner and Smt. Triveni, opposite party can claim maintenance without herself being impleaded as an applicant in the said application.

The short facts are that applicant Moti Ram was married to Smt. Triveni and out of the said wed-lock two daughters were born. This marriage, according to the allegations in the writ petition u/s 125 Cr.P.C., was performed in Bareilly. Thereafter husband and wife were living in Pilibhit. After a long passage of time Smt. Triveni was allegedly turned out along with the children from the house of Moti Ram in Pilibhit with the result she was forced to come at Bareilly with the children. In the meantime no efforts were made by Moti Ram to send for Smt. Triveni and the daughter nor did he take any step to maintain them. Consequently, the opposite party filed a petition u/s 125 Cr.P.C. before the Magistrate concerned in Bareilly with the prayer that a composite maintenance allowance of Rs. 125/- be paid for her and her child Km. Saraswati.

An objection appears to have been taken by the petitioner Moti Ram relating to the proceedings. It is argued that the Courts at Bareilly will have no jurisdiction and that without impleading the child as an applicant herself. Smt. Triveni could not claim maintenance allowance on her behalf. Further argument is that a composite prayer for the two persons, mother and the child was illegal.

All the three arguments raised by Sri K.G. Srivastava, learned Counsel for the petitioner are fallacious. Section 126 Cr.P.C. itself says that the place where either of the parties is residing could be a place where proceedings u/s 125 Cr.P.C. may be initiated. The averments in the application a clear enough to indicate that the marriage had taken place in Bareilly and though the petitioner had taken Smt. Triveni in his house in Pilibhit but after desertion by him she came along with the child to live with her father in Bareilly and, therefore, it quite obvious that Bareilly Courts will have jurisdiction to go into merits of the case.

As regards the second argument that mother could not claim maintenance allowance on behalf of the child some more facts may be examined here. It has been found by the Courts below on the objection of the petitioner that in earlier civil litigation between Smt. Triveni and Moti Ram, it has been held by the civil courts that the marriage between them was void because of an earlier marriage of the petitioner Moti Ram with another lady. The result, therefore, is that though the child Km. Saraswati has seen the world as a result of marital unity between the two that is the petitioner Moti Ram and the opposite party Smt. Triveni, yet this marital unity cannot stand the scrutiny of law and to be declared as void. This places the child in the category of a legitimate child and legitimately living with the mother. Therefore, it will be doing violance to the language used u/s 125 Cr.P C. if it is held that the mother could not maintain the application for maintenance on behalf of her minor child living with her. The language used in Section 125 Cr.P.C. does not admit of such distinction as is being argued by Sri Srivastava, learned Counsel for the petitioner. It is true that in such cases when the time for passing the final order comes and if the Magistrate makes up his mind to award maintenance to the child and mother both he may make a distinction for awarding specific amount to each of them. But since in the instant case the question of paying any amount to Smt. Triveni does not arise because of the civil courts finding existing between the parties, the amount, if any to be paid by the Magistrate could relate only to Km. Saraswati and not Smt. Triveni. For this reason the third argument need not to be decided.

In view of the aforesaid discussion this writ petition has on merits and is accordingly dismissed. Interim order dated 27.2.1990 is vacated. costs of this petition shall be borne by the parties.