HARI NATH TILHARI, J.

( 1 ) THIS revision petition under Sec. 19 (4) of the Family Court Act (as amended by Act No. 59 of 1991) arises from the judgment and order dt. 15-4-1998 passed by Smt. Rathnakala, II Addi. Principal Judge, Bangalore, in Miscellaneous case No. 480/96 whereby the learned subordinate court has overruled the objections raised by the present revision petitioner to the maintainability of the application for maintenance under Sec. 125 of the Code of Criminal Procedure and has held that the petition under Sec. 125 was maintainable.

( 2 ) THE facts of the case in the nutshell are that the minor children of the revision petitioner filed the claim for maintenance under Sec. 125 of Code of Criminal Procedure against their mother who has been working as a woman police constable in Dlsoor Gate Mahila Police Station, Bangalore. A preliminary objection was raised on behalf of the present revision petitioner who was respondent before the Court below to the effect that the application for maintenance was not maintainable against the mother who is a female. The contention was to the same effect as has been raised here. The contention raised before the Court below was that Sec. 125 of the Code of Criminal Procedure only fastens the liability and make the petition under Sec. 125 maintainable against a male and not against a female including the mother and as such, the application under Sec. 125 should have been rejected. The learned Court below considered the matter and opined that the contention raised on behalf of the present revision petitioner i. e. respondent before it was without substance and rejected that contention and held that there was no bar for petitioners in the matter of their proceeding against their mother. As such, the petitioners mother has come up before this Court by revision under Sec. 115 of CPC.

( 3 ) IT has been contended, as a preliminary objection, on behalf of the respondents, that the petition is under Sec. 115 and was not maintainable.

( 4 ) IT is one of the trite principles of law that if a petition is maintainable under a correct provision of law or powers are vested under a correct provision of law, then those powers can be exercisable by the Court and the reference to a wrong provision of law will not make the application to be not maintainable nor will make the order illegal. As such, even if revision is not maintainable under Section 115, real course open to the person affected by the order, could be under Section 19 of Family Court's Act. I propose to deal with this question whether revision is maintainable under Section 19 itself or not. But, before I proceed, I may also make a reference to the contention raised by the learned counsel for the revision petitioner on, merits. Learned counsel for the petitioner contended that a perusal of language of Sec. 125 leads to that in Section 125 expression persont has to be read as referring to a male. It may refer to a husband it may refer to a father of the minor child. But person is not to be taken as to refer to the wife or to the mother of the minor children. He made reference to use of expression hist used in clauses (a), (b), (c) and (d) to Sec. 125 and to the use of expression father with that of expression minor female child used in the proviso and on that basis learned counsel for the petitioner Sri. M. C. Ramachandra contended that a perusal of Sec. 125 per se reveals that application for maintenance filed by the minor children against the mother was not maintainable. He made a reference to a decision of Gujarat High Court in the case of Rajkumari v. Yashodadevi. 4 (a ). On behalf of the respondents Sri. M. B. Nanjunde Gowda submitted that the present revision petition is misconceived and is not maintainable even under Sec. 19 itself. Learned counsel contended that the order in question is not a final order. It is in the nature of an inter-locutary order and final order is yet to be passed in the case. Learned counsel for the respo

Click Here to Read the rest of this document