JUDGMENT 1. This revision under Section 397 of the Code of Criminal Procedure has been filed by the petitioner challenging the legality and validity of order dated 5-12-2006 passed in Cri.Misc.Appln. No.79 of 2003 by the learned Judicial Magistrate (First Class), Mangrol, Junagadh District, whereby the petitioner was directed to pay maintenance to his minor son @ Rs.750/- per month from the date of application. 2. Heard learned advocate for the petitioner, Mr.S.V.Parmar, learned advocate for the respondent No.1, Mr.H.R.Prajapati and learned Addl. Public Prosecutor for the respondent No.2-State, Mr.K.P.Raval. 3. It is submitted by Mr.Parmar that nowhere it has come on record that the petitioner at any point of time had neglected and refused to maintain the minor child Aman Munnabhai Vagdani. It is also submitted that for getting custody of the child, the petitioner has filed Civil Misc. Appln.No.130 of 2004 under the Guardian and Wards Act before the Addl. District Judge and Fast Track Court Court at Junagadh. However, said application was rejected vide order dated 12-10-2007. Said order was challenged by him before the High Court wherein this Court was of the view that as the matter was conducted before the trial court under the Guardian and Wards Act and not under the Mohammedan Law, he was directed to approach the court below under the Mohammedan Law. Hence, said application was permitted to be withdrawn. Thereafter, Cri.Misc.Appln.No.14 of 2009 was filed by the present petitioner under the Mohammedan Law before the court below which is pending at present. Hence, according to him, a jurisdictional error has been committed by the trial court in granting maintenance to the minor especially when the petitioner is the natural guardian as the mother is no more alive. Further, a gross illegality has been committed by the trial court in ordering to pay maintenance to minor without considering that the petitioner is always ready and willing to keep minor with him as his natural guardian and he is ready and willing to maintain him as his son. He has also taken me through the deposition of the grandfather of the child-Bahudurbhai Mamadbhai Vadsaria. He has placed reliance upon the following judgments: i. AIR 1986 Supreme Court page 1186 in the case of State of Madhya Pradesh and others Vs. He has also taken me through the deposition of the grandfather of the child-Bahudurbhai Mamadbhai Vadsaria. He has placed reliance upon the following judgments: i. AIR 1986 Supreme Court page 1186 in the case of State of Madhya Pradesh and others Vs. I.Sardar D.K.Jadav, head note (B) of which reads as under: (B) Constitution of India, Art.226 - WRITS - Scope of - Jurisdiction of administrative authority depending on preliminary finding of fact - Correctness of, can be determined by High Court under Article 226. ii. (1979)2 Supreme Court Cases 316 in the case of Bai Tahira Vs. Ali Hussain Fidaalli Chothia and another; and iii. (1992)1 Supreme Court Cases 534 in the case of Shrisht Dhawan (Smt.) Vs. M/s Shaw Brothers. Mr.Parmar relied on paragraph No.19 of the said judgment which reads as under: The invalidity which could vitiate sanction was error in jurisdictional fact at the time of grant of permission, as valid sanction was sine qua non for Controller's jurisdiction. A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, Tribunal or an authority which is a fact which must exist before a Court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject-matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the Court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad [para 19] Relying on the above referred reported judgments, it is submitted by learned advocate, Mr.Parmar that in this case also, the petitioner is the natural guardian of Aman being father and the mother is no more in the world and hence, the petitioner is the only person as the father to get custody of minor Aman and so, question does not arise to grant maintenance to minor son as he is natural guardian (father of minor Aman). It is also submitted that nothing has come on record to show that the petitioner has refused or neglected to maintain Amin and this fact is not considered by the trial court and this is the error of jurisdictional fact and so, the order passed by the trial court is required to be quashed and set aside. 4. Mr.Prajapati, learned advocate for the respondent No.1, however submitted that unnatural death of the mother of the minor child had taken place at the matrimonial home and for which, the present petitioner along with other accused were charge sheeted for the offences punishable under Sections 498-A, 306 and 114 of IP Code and were sent to jail for a considerable time. On conclusion of trial, he was acquitted by the trial court vide judgement and order dated 17-2-2003r passed in Sessions Case No.45 of 2002. Said order of acquittal has been challenged by grandfather of the minor child by filing Cri. Revision Application No.76 of 2003 which is admitted by this Court and is pending for final disposal. It is thus clear that from the date of arrest of the accused i.e 10-4-2002, minor Aman, who was aged two years then and presently aged 9 years, was in the custody of the grandfather and is still in his custody and which has been held by the Court to be legal. When custody of the minor child with the grandfather is held to be legal, it is the bounden duty of the petitioner as a father to maintain his minor child. He has relied on a decision of the Apex Court in the case of Koli Odha Samat Vs. Bai Balu Jeram, reported in 1973 Cri.Law Journal page 1103. It has been held by the Apex Court in paragraph No.3 of the above reported case as under: It is undoubtedly true that sub-section (1) of Section 488 of the Criminal Procedure Code contemplates neglect or refusal to maintain one's own wife or legitimate or illegitimate children, who are unable to maintain themselves. But so far as the minor children, who are not able to maintain themselves are concerned, the law is that wherever they are found, their father is bound to maintain them under the provisions contemplated by Section 488 of the Criminal Procedure Code. But so far as the minor children, who are not able to maintain themselves are concerned, the law is that wherever they are found, their father is bound to maintain them under the provisions contemplated by Section 488 of the Criminal Procedure Code. One reason, which has guided the courts to come to this conclusion is that minor children are never capable of taking a decision and therefore, they are not capable of deciding whether the offer of their father to maintain them provided they stayed with him should be accepted or refused. They are also incapable of deciding who shall have their actual custody. Under these circumstances, if these children are found to be in possession of their mother and if mother unreasonably refuses to reside with her husband, minors cannot be considered liable for the same and their father, who is legally obliged to maintain them, cannot escape from his liability under Section 488 of the Criminal Procedure Code on the ground that he would maintain them provided they are put in his custody. The question as to who is better entitled to the custody of minors, is not relevant for the purposes of deciding the rights of the minors to get maintenance under Section 488 of the Code. Therefore, even if the minors are found in the actual custody of the wife, who refuses to stay with her husband, the husband is, nonetheless, obliged to provide them maintenance contemplated by Section 488 of the Code. This view is fortified even by the scheme of the section, because, reference to the first proviso which is attached to sub-section (3) of Section 488 of the Code, shows that the Legislature has contemplated only the offer made by the husband to maintain his wife, and the ground of the wife for her refusal to stay with her husband. This proviso significantly omits the consideration of the offer made by the father to the minor children to reside with him. In view of the aforesaid law laid down by the Apex Court in the reported judgment, it is submitted by Mr.Prajapati that the question of custody of the minor is not material for deciding the right enforceable under Sec.488 of Cr.P.C and hence, the petitioner is obliged to pay maintenance to his minor child wherever he is residing. 5. In view of the aforesaid law laid down by the Apex Court in the reported judgment, it is submitted by Mr.Prajapati that the question of custody of the minor is not material for deciding the right enforceable under Sec.488 of Cr.P.C and hence, the petitioner is obliged to pay maintenance to his minor child wherever he is residing. 5. This Court has gone through the impugned order passed by the trial Court as well as the judgments relied on by the learned advocates appearing for the respective parties. 6. It is an admitted position that Cri.Misc.Appln. No.134 of 2001 was filed by the deceased Noorjahan (mother of the minor) under Sec.125 of Code of Criminal Procedure. No doubt, the matter was settled between the parties and thereafter, she went to her matrimonial home. However, within short span of time, she committed suicide by taking poison on 10-4-2002. Hence, complaint for the offence punishable under Secs. 498-A, 306 and 114 of IP Code was filed against the present petitioner and other accused and the petitioner was sent to judicial custody. At the end of trial, he was acquitted by the trial Court. Same has also been challenged in the High Court which is also pending. 7. It is clear from the above that before the death of Noorjahan, she was compelled to leave the matrimonial home because of the alleged torture committed by the accused and other family members. She then filed application under Sec.125 of the Cr.P.C. for her maintenance and also for the maintenance of her minor son. 8. Merely because settlement had taken place between the parties and she went with minor, it could not be said that petitioner was ready and willing to keep Noorjahan and minor son voluntarily. As mentioned above, within no time, she committed suicide which speaks volume about the conduct of the present petitioner. Merely because he has been acquitted by the court, it cannot be said that he has a willingness to maintain minor son. It is an undoubted fact that minor was born and brought up by his grandfather when he was two years old and now he is aged about 9 years. Merely because he has been acquitted by the court, it cannot be said that he has a willingness to maintain minor son. It is an undoubted fact that minor was born and brought up by his grandfather when he was two years old and now he is aged about 9 years. In such circumstances, it can be easily said that the petitioner had neglected and refused to maintain minor son as it is admitted by the grandfather in his deposition that it was conveyed by him to take the custody of the minor. 9. It appears from the record that Cri.Misc.Appln.No.130 of 2004 was also filed by the petitioner under the Guardian and Wards Act against his father-in-law for getting custody of the minor child Aman. However, said application was dismissed by the learned Addl. District Judge and 2nd Fast Track Court, Junagadh vide order dated 12-10-2007. When said order was challenged by him before the High Court, this Court was of the view that since the matter was conducted before the trial court under the Guardian and Wards Act and not under the Mohammedan Law, he was directed to approach the court below under the Mohammedan Law. Said application was then permitted to be withdrawn. The petitioner then preferred Cri.Misc.Appln.No.14 of 2009 under the Mohammedan Law before the court below which is pending adjudication. It is thus clear that minor son Aman is with grandfather and is maintained by him. Hence, it is the bounden duty of the petitioner being the father to pay maintenance as ordered by the court below. 10. It has been held by the Apex Court in Koli Odha Samat (supra) that the question as to who is better entitled to the custody of minors is not relevant for the purposes of deciding the rights of the minors to get maintenance under Section 488 of the Code. Therefore, even if the minors are found to be in the actual custody of the wife, who refuses to stay with her husband, the husband is obliged to provide them maintenance contemplated by Section 488 of the Code wherever the minors are staying. In the present case, custody of the minor has not been given by the court below to the petitioner. The minor is presently residing with the grandfather which is held by the court to be legal. In the present case, custody of the minor has not been given by the court below to the petitioner. The minor is presently residing with the grandfather which is held by the court to be legal. In such circumstances also, the petitioner is obliged to pay maintenance to his minor son even though he is not staying with him. It is to be noted that till the date of filing of this revision application and orders passed therein, the petitioner did not even take care to provide any fund for the maintenance of his son nor has he shown any bona fide intention indicating that he is ready and willing to deposit any amount towards his maintenance. Merely by filing application under the Guardian and Wards Act or under the Mohammedan Law stating few words that he is inclined to get custody of the minor is not sufficient to show that he is ready to discharge his duty as father in maintaining his child. This also clearly and distinctly shows that he has neglected and refused to maintain the child. 11. In view of the above, there is no substance in the submission made by learned advocate for the petitioner, Mr.Parmar that the trial court has committed a jurisdictional error in view of the fact that the petitioner as a father has never refused and neglected to maintain the minor Aman or to keep his custody. As this Court does not see any substance in this revision application, the same deserves to be dismissed. 12. This revision application is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated. 13. Office is directed to send back the record and proceedings forthwith.