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Madhya Pradesh High Court · body

2017 DIGILAW 361 (MP)

Prashant Shrivas v. Nisha Shrivas

2017-03-10

VIJAY KUMAR SHUKLA

body2017
ORDER 1. Heard on admission. 2. By this writ petition filed under Article 227 of the Constitution of India the plaintiff has challenged the legal propriety of the order dated 19.6.2015 passed by the Principal Judge, Family Court Sagar in MJC No.107/13 whereby the application for grant of interim maintenance filed by the respondent No.1/wife has been allowed and the petitioner-husband has been directed to pay Rs.5,000/- per month to the respondent No.1 and Rs.3,000/- per month to the respondent No.2 from the date of the order. The main contention of the petitioner is that the objection regarding jurisdiction of the Family Court was pending for consideration before the Court of law and, therefore, the trial Court ought not to have passed any order of maintenance in favour of the respondents and hence, the order impugned suffers from illegality. 3. The factual expose adumbrated in a nutshell, is that the respondent No.1/wife filed an application under section 125 of the Code of Criminal Procedure [for brevity `the Code'] for grant of maintenance before the Family Court at Sagar. Notice was issued to the petitioner and he raised an objection regarding jurisdiction of the application to be adjudicated at Sagar. After rejecting the objection during pendency of the said application, the trial Court by order dated 19.6.2015 passed an order for grant of maintenance. The petitioner initially filed an application under section 482 of the Code vide Miscellaneous Criminal Case No.3931/2014 before this Court which was disposed of on 26.3.2015 directing the Principal Judge, Family Court to decide the application dated 16.4.2014 challenging jurisdiction of that Court expeditiously. The objection filed by the petitioner was rejected by order dated 20.3.2015 regarding jurisdiction of the Family Court, Sagar. Assailing the said order dated 20.3.2015, a writ petition forming the subject-matter of Writ Petition No.6565/2015 was filed. The said petition was disposed of by this Court quashing the order passed by the Family Court and directing it to decide the objection preferred by the petitioner afresh in accordance with law within a period of one month from the date of receipt of the certified copy of the order. 4. The said petition was disposed of by this Court quashing the order passed by the Family Court and directing it to decide the objection preferred by the petitioner afresh in accordance with law within a period of one month from the date of receipt of the certified copy of the order. 4. As per order passed by this Court, the Family Court, Sagar by order dated 2.9.2015 again considered the objection of the petitioner regarding jurisdiction and rejected the said objection holding that the Court at Sagar has got the jurisdiction to decide the application filed by the respondent under section 145 of the Code. Being aggrieved by the said order the petitioner again assailed the same before this Court by filing Writ Petition No.18090/2015 which was dismissed by order dated 12.7.2016 referring to the judgment rendered by the apex Court in Vijay Kumar Prasad v. State of Bihar [(2004)5 SCC 196], in the following terms : “8. In the case at hand, the facts as borne out from record establish that when the application under section 125 of the Code was preferred by respondent-wife, she was residing at Sagar. The findings when tested on the anvil of cogent material facts on record, cannot be faulted with as would warrant any indulgence. 9. Consequently, the petition fails and is dismissed. No costs.” 5. Thus, the order passed by the trial Court has been held by this Court to be within its jurisdiction and rejection of the objection of the petitioner regarding jurisdiction has been upheld. Submission of the petitioner that the Family Court at Sagar ought not to have passed the order of interim maintenance till the issue of jurisdiction was finally adjudicated by the Court of law sans merit. It is to be noted from the date of objection raised by the petitioner as regards maintainability of the case at Sagar was rejected on 20.3.2015 and thereafter interim maintenance was awarded on 19.6.2015. There was no any order passed by any Higher Court restraining the trial Court from passing the order of interim maintenance. Further, rejection of the objection of the petitioner regarding jurisdiction of the Court at Sagar has also been upheld by this Court while dismissing the Writ Petition No.18090/2015 by order dated 12.7.2016. There was no any order passed by any Higher Court restraining the trial Court from passing the order of interim maintenance. Further, rejection of the objection of the petitioner regarding jurisdiction of the Court at Sagar has also been upheld by this Court while dismissing the Writ Petition No.18090/2015 by order dated 12.7.2016. Thus, there is no force in the contention of the petitioner that the trial Court ought not to have considered the application for interim maintenance till the issue was decided. 6. I do not find any illegality or perversity of approach in the order impugned in the present writ petition granting interim maintenance to the wife and daughter, respondents herein. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh and another v. MCD [ (2010)9 SCC 385 and Shalini Shetty v. Rajendra S. Patil [ (2010)8 SCC 329 ]. 7. Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey and another v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another [ 2004(2) MPHT 14 ], held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is pavailable to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby. 8. 8. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld.