Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 508 (ORI)

Harihar Mohapatra v. Debases Mohapatra

2018-05-04

J.P.DAS

body2018
JUDGMENT J.P. DAS, J . - This is an application under Section 482 of the Code of Criminal Procedure with a prayer to quash the criminal proceeding vide M.C. No. 67 of 2013 filed under Section 125, Cr.P.C. by the present opposite party on the file of learned S.D.J.M., Chhatrapur by setting aside the impugned order dated, 18.07.2016 passed by the said Court. 2. The present opposite parties no.1 and 2 represented through their maternal grand-father are the sons of the present petitioner. The present petitioner along with his family members was arrested in a case with the allegation of murder of the wife of the petitioner. The present two opposite parties, minor children of the present petitioner were left in custody of their maternal grand-father by the Police. Thereafter, the maternal grand-father of the opposite parties filed the proceeding under Section 125, Cr.P.C. claiming maintenance for the children from the petitioner-father. In the said proceeding, the learned trial Court awarded an interim maintenance @ Rs. 3,500/- per month against the present petitioner in favour of the opposite parties. The said order of interim maintenance was challenged before this Court in CRLMP No. 666 of 2014, which was disposed of on 22.01.2016 with the specific directions that the maternal grand-father of the opposite parties shall hand over the custody of the children to the petitioner within a stipulated period. If the petitioner does not come forward to take over such custody, then the opposite parties shall continue to stay with their maternal grand-father and shall be entitled to get interim maintenance till final disposal of the main proceeding under Section 125, Cr.P.C. It was also ordered that if the maternal grand-father failed to hand over the custody of the children to the petitioner-father, the order of interim maintenance would be stayed till final disposal of the proceeding under Section 125, Cr.P.C. In the said order, this Court also fixed the specific date and mode of compliance of the aforesaid order. Thereafter, the direction for handing over and taking over the custody of the children was not carried out by the maternal grand-father of the children who instead filed an application for custody of those children. Thereafter, the direction for handing over and taking over the custody of the children was not carried out by the maternal grand-father of the children who instead filed an application for custody of those children. The present petitioner moved an application before the trial Court submitting that he was willing to take back his children to his custody and the maternal grand-father having failed to comply the direction of this Court in handing over their custody, there remained no question to be decided that he petitioner either refused or neglected to maintain his children so as to justify the claim of maintenance under Section 125 of the Cr.P.C. Hence, it was submitted that the proceeding being not maintainable, should be dropped. Some case laws and observation of the Hon’ble Apex Court as well as of different High Courts were also relied upon on behalf of the petitioner in support of his contentions before the trial Court. 3. The learned trial Court by the impugned order dated 18.07.2016 rejected the said application with the observation that question of maintainability of the proceeding cannot be decided at this stage before taking up hearing of the case. It was further observed that the fact as to the proof of neglect or refusal to maintain the minor children is to be decided after hearing of the proceeding. It was submitted by the learned counsel for the petitioner that since it remained admitted on record that the maternal grand-father of the children did not handover the custody of the children to the present petitioner despite the willingness of the petitioner coupled with the direction of this Court, there remained nothing to be decided by the learned trial Court since the basic and primary requirements like refusal or neglect to maintain, the required causes of action under Section 125, Cr.P.C. are absolutely absent. The case laws as placed before the trial Court have also been placed before this Court. 4. The position of law is not in dispute that the question as to whether a proceeding under Section 125, Cr.P.C. is maintainable or not so as to grant relief to the applicant is a matter which must be decided by the Magistrate when such question is raised before proceeding to consider about granting or relief to the accused persons. 4. The position of law is not in dispute that the question as to whether a proceeding under Section 125, Cr.P.C. is maintainable or not so as to grant relief to the applicant is a matter which must be decided by the Magistrate when such question is raised before proceeding to consider about granting or relief to the accused persons. It has also been the observation of the Hon’ble Apex Court that in a proceeding under Section 125, Cr.P.C. there must be proof of neglect to maintain and refusal to maintain by the husband or father to his wife or begotten children. In the instant case, the learned trial Court has not given any finding adverse to the position of law, but has observed that the question shall be decided after hearing the parties. As it appears the learned trial Court has felt that only because the maternal grand-father did not hand over the custody of the children to the petitioner as per direction of this Court, it could not have been held that the petitioner never refused or neglected to maintain his children. In my considered view, the observation of the learned trial Court as impugned, is not that illegal or perverse so as to be interfered with in the peculiar circumstances of the case. The question of maintainability has been kept pending to be decided as per observation of the learned trial Court and it could not have been decided as a preliminary issue like a civil proceeding, and to drop the entire proceeding without reaching a conclusive finding that the petitioner has neither refused nor neglected to maintain his children is never the position of law. 5. Apart from that, while assailing the order of interim maintenance, it was also raised before this Court as observed in the order of this Court dated 22.01.2016 that the father being lawful guardian of the children and being willing to maintain them, the maternal grand-father had no authority to keep the custody of children and therefore and application under Section 12, Cr.P.C. was not maintainable. As quoted herein before, it has been specifically observed by this Court that if the petitioner does not come forward to take over custody of the children, they shall continue to stay with their maternal grand-father and shall be entitled to get interim maintenance till final disposal of the main proceeding under Section 125, Cr.P.C. It was further observed that if the maternal grand-father failed to produce the children as directed, then it would be deemed that he was not willing to hand over the children to their own father and in such an event, the order of interim maintenance would be stayed till final disposal of the Section 125, Cr.P.C. proceeding. It was also observed that if the father fails to appear to take over the custody of the children, then the main proceeding under Section 125, Cr.P.C. shall stand stayed till the interim order of maintenance was fully complied with. Thus, as I understood, after considering the submissions of the parties and the circumstances, continuance of the proceeding under Section 125, Cr.P.C. till its logical end was the view of this Court, while passing the order dated 22.01.2016 despite the question of maintainability having been raised before it. In such circumstances, I am of the view that the proceeding should be finally disposed of as to the maintainability thereof and the entitlement of the parties. 6. Accordingly without expressing any opinion on the merits of the claim and counter-claim of the parties, this application is disposed of directing learned trial Court to complete the proceeding at the earliest preferably within a period six months hence and both the parties are directed to co-operate for the said purpose. The CRLMC is disposed of accordingly. CRLMC disposed of.