Supreme Court of India
DAWALSABversusKHAJASAB
- Citation
- 2009 INSC 907
- Decided
- 15 July 2009
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
The Family Court at Bijapur possessed jurisdiction to entertain the Section 125 CrPC maintenance petition, and the dismissal for lack of jurisdiction was erroneous.
Summary
The appellant, an elderly father, filed a petition under Section 125 of the CrPC before the Family Court at Bijapur seeking monthly maintenance of Rs.5,000 from his son, who was employed in Syndagi. The Family Court dismissed the petition, holding it lacked jurisdiction because the son worked in Syndagi, and the High Court affirmed this view. On appeal, the Supreme Court examined the interplay of Section 126(1)(a) of the CrPC, which allows a maintenance proceeding against a person in any district where he is, and Sections 7 and 8 of the Family Courts Act, 1984, which confer jurisdiction on the district Family Court. Since Syndagi falls within Bijapur district, the Court held that the Family Court at Bijapur had proper jurisdiction to entertain the petition. Consequently, the orders of the Family Court and the High Court were set aside and the matter was remanded to the Bijapur Family Court for fresh consideration.
Issues considered
- Whether the Family Court at Bijapur had jurisdiction to entertain a Section 125 CrPC maintenance petition when the respondent worked in Syndagi, a location within the same district.
- Whether Section 126(1)(a) CrPC and Sections 7 and 8 of the Family Courts Act, 1984, together confer jurisdiction on the district Family Court.
Legislation cited
- Code of Criminal Procedure, 1973s. 125, s. 126(1)(a)
- Family Courts Act, 1984s. 7, s. 8
Subjects
maintenanceSection 125 CrPCjurisdictionFamily CourtFamily Courts Act 1984Section 126 CrPCsenior citizencriminal procedure
Judgment
[2009] 10 S.C.R. 1006
A DAWALSAB '\ ....,
v.
KHAJASAB
(Criminal Appeal No. 1236 of 2009)
JULY 15, 2009
B
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
) .
Family Courts Act, 1984 - ss. 7 and 8 - Petition filed by
father under s. 125 CrPC for monthly maintenance from son
c before Family Court, Bijapur - Son working in Syndagi -
Whether the Family Court had jurisdiction to entertain the
petition - Held, Yes - Syndagi also falls within Bijapur district
- Under s.126(1 )(a) CrPC, jurisdiction for filing any
proceeding under s. 125 would be in Bijapur itself where
t
D Family Court for the district is situated - Code of Criminal
Procedure, 1973 - ss. 125 and 126(1).
Appellant is the father of the respondent. He filed
petition under Section 125 CrPC. for payment of monthly
maintenance of Rs.5,000/- from the respondent on the
E
ground that having become old and not having any
source of income, he was unable to maintain himself,
whereas the respondent was employed in Anjuman
College, Syndagi and was well off. The petition was
dismissed by the Family Court, Bijapur on the ground
F that it did not have jurisdiction to entertain the petition
which ought to have been filed in the Court within whose
jurisdiction, the appellant resided. The revision petition
filed by appellant was dismissed by the High Court.
G In appeal to this Court, it was contended that the
High Court proceeded on an erroneous basis in )._ ~
interpreting the provisions of Section 126(1)(a) Cr.P.C.
without taking note of the very initial wordings of Section
126(1) Cr.P.C. which provides that proceedings under
H 1006
DAWALSAB v. KHAJASAB & ANR. 1007
Section 125 Cr.P.C. may be taken against any person in A
. l''---1
any district and qualifies clauses {a), (b) and (c) thereof.
It was submitted that in the instant case, having regard
to the provisions of Sections 7 and 8 of the Family Courts
Act, 1984, the only forum in which application for
maintenance under Section 125 Cr.P.C. could have been B
filed by the appellant was before the Family Court of the
district which was situated at Bijapur and since Syndagi
. ·'( also fell within the district of Bijapur and was subject to
the jurisdiction of the Family Court at Bijapur, the petition
had been rightly filed before the Family Court. It was c
contended that the High Court misconstrued the
provisions of Section 126(1) CrPC without taking note of
the provisions of the Family Courts Act, 1984.
Allowing the appeal, the Court
... >f D
HELD:1.1. The wordings have been interpreted by
the High Court and the Family Court to mean that the
petition ought to have been filed in Syndagi where the
respondent was working. Both the Family Court Judge
- and the High Court appear to have missed the fact that
an application under Section 125 Cr.P.C. has to be taken
against any person in any district where the person is.
E
~
In the instant case, Syndagi also falls within Bijapur
district. Accordingly, under Section 126(1)(a) Cr.P.C., the
jurisdiction for filing any proceeding under Section 125 F
would be in Bijapur itself where the Family Court for the
district is situated and since Syndagi is within the said
district. [Para 8) [1011-B-D]
1.2. The petition had been rightly filed before the
Family Court at Bijapur, which is situated in Bijapur, since G
.. 1 under Section 8(b) of the Act the magistrate's jurisdiction
under Chapter IX Cr.P.C. has been excluded. Reading the
opening words of Section 126(1) Cr.P.C. with Section
7(2)(a) of the Family Courts Act, 1984, it is quite clear that
H
1008 SUPREME COURT REPORTS [2009] 10 S.C.R.
A it was the Family Court at Bijapur which had the
jurisdiction to entertain the petition filed by the appellant
under Section 125 Cr.P.C. [Para 9] [1012-D-E]
1.3. The orders passed by the Family Court and the
High Court are set aside and the matter is remanded to
8
the Family Court at Bijapur for fresh consideration in
accordance with law. [Para 10] [1012-F-G]
Vijay Kumar Prasad v. State of Bihar 2004 (5) SCC 196 ) .
and Jagir Kaur v. Jaswant Singh AIR 1963 SC 1521, referred
C to.
Case Law Reference :
2004 (5) sec 196 referred to Para 4
D AIR 1963 SC 1521 referred to Para 4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1236 of 2009.
From the Judgment & Order dated 12.03.2008 of the High
E Court of Karnataka at Bangalore in Revision Petition (FC) No.
27 of 2007 (Crl. Misc.)
Girish Ananthamurthy and P.P. Singh for the Appellants.
Shankar Divate for the Respondent.
F
The order of the Court was delivered by
ALTAMAS KABIR, J. 1. Leave granted.
2. This appeal is directed against the judgment and order
G dated 12th March, 2008, passed by the Karnataka High Court
in Revision Petition (FC) No.27/2007 (Crl. Misc.) dismissing "" ....
the same. The said revision petition had been filed against the
order passed by the learned Judge, Family Court at Bijapur,
on 9th February, 2007, in Crl. Misc. No.187 of 2004, dismissing
H
DAWALSAB v. KHAJASAB & ANR. 1009
[ALTAMAS KABIR, J.]
the petition filed by the appellant under Section 125 Cr.P.C. A
•--.i
3. The appellant is the father of the respondent and had
filed the aforesaid petition under Section 125 Cr.P.C. for
payment of monthly maintenance of Rs.5,000/- from the
respondent on the ground that having become old and not B
having any source of income, he was unable to maintain
himself, whereas the respondent was an employee of the
Anjuman College, Syndagi and was well off. The said petition
• 'i
was dismissed as indicated hereinabove.
4. In the revision filed by the appellant before the High c
Court, the High Court was of the view that the learned Family
Judge had not committed any error of law or material irregularity
which would warrant interference with the impugned order. The
High Court proceeded on the basis that the learned Family
~;-,, Judge had rightly held that it did not have jurisdiction to entertain D
the petition which ought to have been filed in the Court within
whose jurisdiction the appellant was resided. Reliance was
placed on a decision of this Court in Vijay Kumar Prasad v.
State of Bihar [2004 (5) SCC 196], wherein, after considering
the provisions of Section 125 Cr.P.C., under which the E
appellants were also entitled to apply for maintenance, this
Court took note of the provisions of Section 126 Cr.P.C. which
~
are also relevant for our purpose and are extracted hereinbelow
-
F
"126. Procedure - Proceedings under Section 125 may be
taken against any person in any district -
(a) where he is, or
(b) where he or his wife r~sides, or G
,,,_ J . (c) where he last resided with his wife, or as the case
' of the illegitimate child."
may be, with the mother
This Court took ·note of the words "resides", "is" and
' "where he last resided" with his wife. In the said decision, H
1010 SUPREME COURT REPORTS (2009] 10 S.C.R.
A while taking notice of another decision of this Court in the
case of Jagir Kaur v. Jaswant Singh [Al R 1963 SC 1521], \. .
this Court held that the expression "is" has to be applied
to the place where the person from whom maintenance is
sought is normally available and cannot be construed to
B be a mere fleeting presence.
5. Relying on the said decision, the High Court held that
the appellant was not entitled to maintain the revision petition
before the Family Court at Bijapur, since the respondent was ••
working in the Anjuman College at Syndagi.
c
6. Appearing for the appellant, Mr. Girish Ananthamurthy,
learned Advocate, submitted that the High Court had
proceeded on an erroneous basis in interpreting the provisions
of Section 126(1 )(a) Cr.P.C. without taking note of the very initial
D wordings of Section 126(1) Cr.P .C. which provides that
proceedings under Section 125 Cr.P.C. may be taken against
~ -
any person in any district (emphasis supplied] and qualifies
clauses (a), (b) and (c) thereof. Learned counsel submitted that
in the instant case having regard to the provisions of Sections
E 7 and 8 of the Family Courts Act, 1984, the only forum in which
the application for maintenance under Section 125 Cr.P.C.
could have been filed by the appellant was before the Family
Court of the district which was situated at Bijapur. Accordingly,
since Syndagi also fell within the district of Bijapur and was
"
F subject to the jurisdiction of the Family Court at Bijapur, the
petition had been rightly filed before the learned Judge of the
Family Court. Learned counsel urged that the High Court had
misconstrued the provisions of Section 126(1) Cr.P.C. without
taking note of the provisions of the Family Courts Act, 1984.
G 7. On behalf of the respondent, Mr. Shankar Divate,
learned Advocate, attempted to justify the decision of the High
Court on the same lines on which the High Court had passed
.._ -·
its order.
H 8. The only question which we are called upon to consider
DAWALSAB v. KHAJASAB & ANR. 1011
[ALTAMAS KABIR, J.]
is whether the learned Family Judge as also the High Court A
"t~
were correct in determining the question of jurisdiction on the
basis of the expression used in Section 126(1)(a) Cr.P.C.
without taking into consideration the provisions of Sections 7
and 8 of the Family Courts Act, 1984, or the opening words of
Section 126(1) Cr.P.C. The wordings have been interpreted by B
the High Court and the Family Court to mean that the petition
ought to have been filed in Syndagi where the respondent (son
." of the appellant) was working. Both the learned Family Court
Judge and the High Court appear to have missed the fact that
an application under Section 125 Cr.P.C. has to be taken c
against any person in any district where the person is. In the
instant case, Syndagi also falls within Bijapur district.
Accordingly, under Section 126(1)(a) Cr.P.C., the jurisdiction
for filing any proceeding under Section 125 would be in Bijapur
itself where the Fami!y Court for the district is situated and since
>'r D
Syndagi is within the said district. Furthermore, as far as the
jurisdiction of the Family Court with regard to civil matters is
concerned, the same is set out in Section 7(1) of the Family
Courts Act, 1984. Sub-section (2) of Section 7 provides for the
jurisdiction of the Family Courts with regard to relevant criminal
matters and reads as follows :- E
"7. Jurisdiction. -
( 1) .............................................
(2) Subject to the other provisions of this Act, a Family F
Court shall also have and exercise -
(a) the Jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the G
-~). Code of Criminal Procedure, 1973; and
(b) such other jurisdiction as may be conferred on it by
any other enactment."
~
- Section 8(b) of the above Act which is also relevant H
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