Back
High Court Of Himachal Pradesh
C.R.THAKUR
KANWAR DANG - Appellant
Versus
VASUDEO DANG - Respondent
Crlminal Revn. Nos. 62 of 1975 and 13 of 1976
Decided On : 03/25/1976
MAINTENANCE - S. 488, CR. P. C. - JURISDICTION - FATHER'S LIABILITY TO MAINTAIN CHILD IN CUSTODY OF MOTHER - QUANTUM OF MAINTENANCE - DATE OF COMMENCEMENT OF MAINTENANCE.
Fact of the Case:
The petitioner, a minor son, through his mother, filed an application under S. 488, Cr. P. C. for grant of maintenance from his father. The father opposed the application, contending that he was willing to maintain the child if the custody was given to him. The Magistrate granted maintenance to the child from the date of the order, but the father filed a revision petition challenging the jurisdiction of the Court and the quantum of maintenance.
Finding of the Court:
The Court held that the Magistrate had jurisdiction to entertain the application as the child was residing with his mother in the district where the application was filed. The Court also held that the father was liable to maintain the child even though he was in the custody of the mother, and that the quantum of maintenance fixed by the Magistrate was reasonable. The Court further held that the Magistrate had the discretion to order the maintenance to be paid from the date of the order, and that this discretion had not been exercised arbitrarily.
Issues: 1. Whether the Magistrate had jurisdiction to entertain the application for maintenance. 2. Whether the father was liable to maintain the child even though he was in the custody of the mother. 3. Whether the quantum of maintenance fixed by the Magistrate was reasonable. 4. Whether the Magistrate had the discretion to order the maintenance to be paid from the date of the order.
Ratio Decidendi: 1. The Court held that the Magistrate had jurisdiction to entertain the application for maintenance as the child was residing with his mother in the district where the application was filed, relying on sub-s. (8) of Section 488, Cr. P. C. 2. The Court held that the father was liable to maintain the child even though he was in the custody of the mother, relying on the Full Bench judgment in Balbir Singh v. Hardeep Singh 77 Pun LR 727: (1976 Cri LJ 1136) (FB). 3. The Court held that the quantum of maintenance fixed by the Magistrate was reasonable, considering the status and means of the father. 4. The Court held that the Magistrate had the discretion to order the maintenance to be paid from the date of the order, relying on sub-section (4) of S. 488, Cr. P. C.
Final Decision: Both the petitions were dismissed and the order passed by the learned Chief Judicial Magistrate was upheld.
1. In Criminal Revision No. 62 of 1975 the petitioner is the son and the respondent is the father. The petitioner is residing with his mother who has been divorced by the respondent and the petitioner at present is in the custody of the mother and the petitioner through his mother and guardian, filed an application under S. 488 of the Cri. P. C. On 6th of March, 1973 in the Court of the Judicial Magistrate, first class, Simla for grant of maintenance of an amount of Rs. 500/- per month from the date of the application. This application was opposed by the respondent.
2. The learned Magistrate after examining the evidence came to the finding that the petitioner was entitled to maintenance at the rate of Rs. 200/- per month with effect from the date of the order which was passed on 30-6-1975. Against this order Kanwar Dang again filed this present petition and it was prayed that the maintenance instead of 30-6-1975 be ordered to be paid to the petitioner from 5-3-1973 and the amount of maintenance be enhanced from Rs. 200/- per month to Rs. 500/- per month. According to the petitioner the Court below had erred in granting him a meagre amount of Rupees 200/- by way of maintenance and further also erred in granting this amount only from the date of the decision of the application. So this revision was preferred only for enhancement of the amount of maintenance as also to want the same from the date of the presentation of the application.
3. The father, Dr. Vasudev Dang, also preferred a revision petition against the order of the learned Judicial Magistrate before the Sessions Judge on the ground that the learned Magistrate had not taken into account the earnings of the mother of the child. Further that the petitioner had specifically pleaded that he is ever ready and willing to maintain the child provided the custody of the child was given to him, that Dr. Supriya was not willing to give the custody of the child to the natural guardian. Further that there was an offer to maintain the child which was specifically pleaded in the written statement and the effect of the same had not been considered by the learned Magistrate. That there is no reason shown on the record as to why the child is not permitted to live with the petitioner who is the natural guardian, that there is no finding and evidence on the record that the child is unable to maintain itself and lastly the allowance fixed by the learned Magistrate at Rs. 200/- per month is extremely excessive.
4. This revision petition was also ordered to be transferred to this Court by my order dated 22-3-1976 so as to avoid any conflicting decisions and this revision petition has now been registered as Cr. Revision. No. 13 of 1976. Both these petitions shall be disposed of by this single judgment.
5. The brief facts are that Dr. Supriya, the mother of Kanwar Dang was married to the petitioner on 21-6-1966. At that time she was working as House Surgeon at Rajindra Hospital, Patiala which job was to continue till 31-12-1966 but at the instance of her husband Dr. Vasudeva, who at that time was working as a Medical Officer, Indian Red Cross Clinic for Tibetian Refugees, Simla, resigned her job in July, 1966. During her stay in Simla, with her husband, she conceived but due to some ill treatment etc., she left for Patiala in the month of September, 1966. Due to mental shock and as a result of accidental slipping she had to undergo operations of D. and C. twice. When she recovered from the shock, she got employment in the Red Cross Maternity Hospital, Hoshiarpur in December, 1966. When the husband learnt that she had got employment, he started writing letters to her in order to request her to join him with the result that she visited Simla and remained there from 2nd March to 12th March and again on 27th and 28th March 1967 during which period she cohabited with her husband and she conceived, and as a result of this conception, Kanwar Dang was born to Dr. Supriya from the loins of Dr. Vasudev
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
