IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1236     OF 2009 (ARISING OUT OF SLP (CRL) NO.4589 OF 2008)

Dawalsab … Appellant

Versus

Khajasab … Respondent

O R D E R

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal is directed against the judgment  

and order 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 the petition filed by  

the appellant under Section 125 Cr.P.C.  

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 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  was  dismissed  as  indicated  

hereinabove.   

4. In the revision filed by the appellant before  

the High 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  

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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  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 :-

“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 resides, or  

(c) where he last resided with his wife, or  as the case may be, with the mother of  the illegitimate child.”

    This Court took note of the words “resides”,  

“is” and “where he last resided” with his wife.  

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In  the  said  decision,  while  taking  notice  of  

another decision of this Court in the case of  

Jagir Kaur v. Jaswant Singh [AIR 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 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.

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 wordings of Section 126(1) Cr.P.C. which  

provides  that  proceedings  under  Section  125  

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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 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  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.   

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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.  

8. The only question which we are called upon  

to consider is whether the learned Family Judge  

as  also  the  High  Court  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 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 against any person in  

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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 Family Court for the district is  

situated  and  since  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 :-

“7.  Jurisdiction. – (1) …………………………………………………………………………………………

(2) Subject to the other provisions of  this Act, a Family Court shall also have  and exercise -

(a) the  Jurisdiction  exercisable  by  a  Magistrate  of  the  first  class  under  

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Chapter  IX  (relating  to  order  for  maintenance  of  wife,  children  and  parents)  of  the  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  to  the  facts  of  this  case  is  also  

extracted hereinbelow :-

“8. Exclusion  of  jurisdiction  and  pending  proceedings  -  Where a  Family  Court   has   been  established  for  any  area –

(a) …………………………………………………………………………… (b) no magistrate shall, in relation to such  

area, have or exercise any jurisdiction  or powers under Chapter IX of the Code  of Criminal Procedure, 1973 (2 of 1974);

(c) ……………………………………………………………………………

9. In the instant case, it is the Family Court,  

therefore,  which  has  jurisdiction  to  entertain  

the petition filed by the appellant. The petition  

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had been rightly filed before the Family Court at  

Bijapur,  which  is  situated  in  Bijapur,  since  

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 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.   The  

decision cited on behalf of the respondent did  

not have occasion to consider these aspects of  

the matter which are peculiar to the facts of  

this case.

10.   Having regard to the above, we allow the  

appeal and set aside the orders passed, both by  

the Family Court and the High Court, and remand  

the matter to the Family Court at Bijapur for  

fresh consideration in accordance with law.   

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11.   The costs of this appeal is assessed at  

Rs.25,000/- which is to be paid to the appellant  

by the respondent.   

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated:15.07.2009

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