ORDER

This criminal revision has been preferred by the petitioner/minor daughter challenging the order dated 05.09.2022 passed by First Additional Principal Judge, Family Court, Jabalpur in MJCR No.74/2019, whereby the Family Court has, in the main application/proceeding under Section 125 of the CrPC, dismissed an application for interim maintenance pendente lite, filed by the petitioner/minor daughter through her next friend (maternal grandmother), on the premise that she is not legal guardian of the petitioner.

2. Learned counsel for the petitioner submits that the petitioner was born on 26.09.2015 and due to illness, her mother had died on 19.05.2018 leaving behind her the petitioner, aged about 3 years only. He submits that due to strained relations between the husband and wife, the respondent/father deserted his wife (i.e. mother of the petitioner), hence she was living separately. He submits that the respondent was not accepting the petitioner as his daughter and alleging that the petitioner was not born out of wedlock of the respondent and his wife. He submits that since maternal grandmother was not in a position to maintain the petitioner properly, therefore, an application under Section 125 of the CrPC was filed by the petitioner on 24.01.2019 through her next friend/maternal grandmother (Nani) and at the same time another application for awarding interim maintenance pendente lite was also filed, which has been dismissed by the impugned order, on the premise that since the maternal grandmother is not a legal guardian of the petitioner duly appointed under the law, therefore, unless the maternal grandmother files appropriate application for taking legal custody of the petitioner, she has no right to file any proceeding on behalf of the petitioner and as such no interim maintenance pendente lite can be granted.

3. Learned counsel for the petitioner/minor daughter submits that since the respondent has admitted the petitioner to be his daughter and that the petitioner is continuously living/residing with her maternal grandmother (Nani) since 19.05.2018 i.e. after death of her mother, therefore, even without following any procedure prescribed under Order XXXII of the CPC, she is entitled to interim maintenance. In support of his submissions, learned counsel for the petitioner placed reliance on the decision of Hon’ble Supreme Court in the case of Nagaiah vs. Chowdamma (Dead) by LRs., AIR 2018 SC 459 (para 9 & 16). With these submissions he prays for setting aside the impugned order and for allowing the instant criminal revision.

4. In turn learned counsel for the respondent/father supports the impugned order and prays for dismissal of the criminal revision. He submits that since the petitioner has not moved any application under Order XXXII Rule 4 of the CPC for appointment of legal guardian, therefore, the Family Court has not committed any illegality in passing the impugned order and in dismissing the application under Section 125 of the CrPC.

5. Heard learned counsel for the parties and perused the record.

6. As has been observed hereinabove, there is no dispute to the fact that the petitioner is legitimate daughter of the respondent. In paragraph 5 of the application under Section 125 of the CrPC, the petitioner has clearly mentioned that after death of her mother i.e. after 19.05.2018, she is in the care and custody of her maternal grandmother and perusal of the reply to the application shows that this fact has not been denied by the respondent. As such it is clear that the petitioner is daughter of the respondent and is living with her maternal grandmother (Nani).

7. In the case of Nagaiah vs. Chowdamma (Dead) by LRs., AIR 2018 SC 459, the Hon’ble Supreme Court has held as under :

“9.7. Agreement or compromise by next friend or guardian for the suit.—(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the pro