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2005 DIGILAW 786 (JHR)

Leela Yadav v. State Of Bihar

2005-10-26

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. This application is directed against Order dated 24.01.2000 passed by the Judicial Magistrate, 1st Class, Jamshedpur in Misc. Case No. 92 of 1998 whereby the learned Judicial Magistrate dismissed the petition for maintenance filed under Section 125, Cr PC by the petitioners on the ground that the same was not maintainable. 2. The brief facts are that an application under Section 125, Cr PC was filed before the Chief Judicial Magistrate, Jamshedpur by the petitioners against the opposite party No. 2 herein namely Pradeep Kumar Chaudhary for grant of maintenance in favour of petitioner Nos. 2 and 3 namely Manisha Choudhary and Payal Chaudhary respectively who were the minor daughters of the opposite party No. 2 (Pradeep Kumar Choudhary) born out of the wedlock of the opposite party No. 2 (Pradeep Kumar Choudhary) and Sarika Choudhary (since deceased), the mother of the petitioner Nos. 2 and 3 and the daughter of the petitioner No. 1 namely Smt. Leela Yadav. The petitioner No. 1 is the maternal grand mother (nani) of the petitioner Nos. 2 and 3 who at the time of making application were aged 9 years and 6 years respectively. According to the petitioners, the marriage of Smt. Sarika Choudhary i.e. the daughter of the petitioner No. 1 Smt. Leela Yadav was solemnized with the opposite party No. 2 (Pradeep Kumar Chaudhary) on 19.02.1988, who was an employee of TISCO Tubes Division. Out of their wedlock, two daughters namely Manisha Chaudhary and Payal Choudhary were born who arc the petitioner Nos. 2 and 3 herein respectively. 3. It was alleged that the opposite party No. 2 quarreled with his wife Sarika Chaudhary on 22.06.1998, assaulted her and thereafter, in the next morning on 23.06.1998 he poured kerosene oil on Sarika Choudhary and by pushing her in the kitchen room set her on fire. She was however rescued and was taken to the hospital for treatment. It is said that while she was in serious conditions, she asked her mother i.e. the petitioner No. 1 herein to take charge of her two daughters i.e. the petitioner Nos. 2 and 3 herein and requested her to take their proper care and maintenance as after that, there was nobody to look after them. In course of treatment, Sarika Choudhary died on 28.06.1998 and since thereafter, both the children i.e. the petitioner Nos. 2 and 3 herein and requested her to take their proper care and maintenance as after that, there was nobody to look after them. In course of treatment, Sarika Choudhary died on 28.06.1998 and since thereafter, both the children i.e. the petitioner Nos. 2 and 3 are living with the petitioner No. 1 i.e. their mother grand mother (nani). 4. It was said that the opposite party No. 2 Pradeep Kumar Chaudhary, who was an E.S.S. Employee of the TISCO Tubes Division, was drawing Rs. 5.000/- per month but he was neglecting and not maintaining his two daughters namely petitioner Nos. 2 and 3 and accordingly, the prayer was made for grant of maintenance @ Rs. 500/- per month each for the minor applicant Nos. 2 and 3. The prayer for grant of maintenance was objected to by the opposite party Nos. 2, mainly on the ground that the petition under Section 125. Cr PC was not maintainable, as the petitioner No. 1 had no locus standi to pray for grant of maintenance on behalf of the two minor daughters of the opposite party No. 2 because she was not lawful guardian of those two minors. 5. Learned Judicial Magistrate, by the impugned order, dismissed the petition for maintenance filed by the petitioners on the ground that the grand mother (nani) i.e. the petitioner No. 1 Smt. Leela Yadav was neither the natural guardian nor the lawful guardian nor the legal guardian of the petitioner Nos. 2 and 3 and therefore, she had no locus standi to file petition under Section 125, Cr PC. therefore, the petition under Section 125. Cr PC was not maintainable by her. 6. By the order of this Court, all the three petitioners namely Smt. Leela Yadav. Manisha Choudhary and Payal Choudhary as well as the opposite party No. 2 Pradeep Kumar Chaudhary appeared personally before this Court. On being questioned by this Court the opposite party No. 2 Pradeep Kumar Choudhary stated that he is ready to keep and maintain his two daughters namely the petitioner Nos. 2 and 3 if they live with him only. He further stated that since he is maintaining a big family consisting of his mother and other members and therefore, it is not possible for him to pay maintenance to the petitioner Nos. 2 and 3 separately. The petitioner Nos. 2 and 3 if they live with him only. He further stated that since he is maintaining a big family consisting of his mother and other members and therefore, it is not possible for him to pay maintenance to the petitioner Nos. 2 and 3 separately. The petitioner Nos. 2 and 3 namely Manisha Choudhary and Payal Choudhary. who are now aged about 16 years and 13 years respectively, appeared personally before this Court and stated that they are not ready to live with their father because he never cared for them since the death of their mother and he had no love and affection and attachment towards them. They specifically stated that they are living with their maternal grand mother (nani) and they want to live in future with her only. 7. Section 125, Cr PC is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. The provisions under Section 125, Cr PC is not to be utilized for defeating the rights conferred by the legislature on destitute women, children or parents who are the victims of social environment as has been held by the Supreme Court in the case of Dwarlka Prasad Satpathy v. Bidyut Prava Dixit and Anr., . From the facts stated hereinabove. as well as the pleadings of the parties in the Court below, the facts which are not disputed are as follows : (a) The petitioner Nos. 2 and 3 arc the daughters of opposite party No. 2 born out of wedlock of the opposite party No. 2 and Sarika Choudhary. the daughter of petitioner No. 1; (b) Sarika Choudhary died unnatural death on 28.06.1998 and since thereafter the petitioner Nos. 2 and 3 are living with their maternal grand mother i.e. the petitioner No. 1 and; (c) Up-till now. the opposite party No. 2. i.e. the father of the petitioner Nos. 2 and 3 has not claimed the custody and guardianship of the petitioner Nos. 2 and 3. 9. In my view, the learned Judicial Magistrate has committed grave illegality in dismissing the petition under Section 125, Cr PC filed by the petitioners on the ground that the petitioner No. 1 was not the natural guardian or the lawful guardian of the petitioner Nos. 2 and 3. Therefore, the petition filed by her on behalf of the petitioner Nos. 2 and 3 was not maintainable. 2 and 3. Therefore, the petition filed by her on behalf of the petitioner Nos. 2 and 3 was not maintainable. The learned Judicial Magistrate failed to appreciate that the petitioner Nos. 2 and 3 were also the applicant before him and they had also prayed for grant of maintenance in their favour but since they were minors and they were living under the care and guardianship of their maternal grand mother and therefore, the application under Section 125, Cr PC was filed through their maternal grand mother Smt. Leela Yadav. Therefore, the learned Magistrate was absolutely wrong in rejecting the petition on the aforesaid ground. 10. The stand of the opposite party No. 2, as stated by him before this Court on his personal appearance is that only if the petitioner Nos. 2 and 3 i.e. his daughters live with him then he is ready to keep and maintain them properly whereas, the two daughters i.e. the petitioner Nos. 2 and 3 have categorically stated before this Court that they do not want to live with their father opposite party No. 2 but they want to live with their maternal grand mother i.e. the petitioner No. 1. They have further that their father i.e. the opposite party No. 2 has never cared for them after the death of their mother and he has never shown any concern. 11. The question of custody is a matter of Civil Court and not of Criminal Court. The right conferred under Section 125, Cr PC for maintenance is not dependent on guardianship. The maintenance to children living with either the mother or even the grand mother, cannot be refused on the ground that either the mother or the grand mother are not the natural guardian, lawful guardian or the legal guardian. In view of my discussions and findings above, the impugned order cannot be sustained and as such, the revision application is allowed and the impugned order passed by the Court below is set aside. Since the learned Court below has dismissed the petitioner under Section 125, Cr PC not on its merit but, on the technical ground and therefore, the matter is remitted back to the Court below for a fresh decision in accordance with law within a period of three months from the date of receipt/production of a copy of this order. Since the learned Court below has dismissed the petitioner under Section 125, Cr PC not on its merit but, on the technical ground and therefore, the matter is remitted back to the Court below for a fresh decision in accordance with law within a period of three months from the date of receipt/production of a copy of this order. The Court below shall not grant any unnecessary adjournment to either of the parties.