JAYESH RAMNIKLAL POPAT Vs. BHARTIBEN JAYESHBHAI POPAT

JUDGEMENT

(1.) * * * *

(2.) In the instant case, the application for maintenance was filed on 17th September 1990. The same came to be dismissed for non-appearance of applicantmother on 25th September 1992. It was ordered to be restored on file on 18th March 1993. Application for maintenance is filed for two minors also. Both the minors appear to be twins, aged 11 months old only on the date of the application. It will be relevant to state at this stage that it is the duty of the father to maintain his own minor children. It is not the choice of the minor children to choose whether to stay with the father or the mother. Till they are minors, they are entitled to stay with the mother and the mother is entitled to keep them in her custody. It is clear eleven months old children are neglected or refused to be maintained by the father. The question, therefore, is if an application is filed for and on behalf of the minors can such an application be dismissed by the learned Magistrate for no fault on their part and for the fault of the guardian like mother in the present case. In my opinion, when an application for maintenance is filed for the minors through its guardians, it was the duty of the Court to protect the interest of the minors before dismissing the application for default. If the natural guardian refuses to prosecute the application for maintenance either directly by so stating before the Court or indirectly by remaining absent from Court, it was the duty of the Court to appoint Nazir or some officer of the Court as guardian of minor and prosecute that application. In view of this state of affairs the order dismissing the application for maintenance on behalf of the minors is without jurisdiction, and authority and should be treated as nonest and the Court should have proceeded further with the application for the minors, as if no such dismissal order is passed. Ordinarily, the Court is the guardian of the minors, destitutes etc. and their welfare is taken care of. In case of finding that the mother has acted against the interest of minors, be it by remaining absent in the proceedings, the Court could not have passed any order on the application of the minors without removing the mother as the guardian and appointing someone else as the guardian of the minor children.

(3.) Keeping in mind this fact situation it is now to be considered whether the impugned order is legal and proper. It is true that there is no provision in the Code for restoration of an application dismissed for default. Mr. Kakkad has relied on a judgment in the case of Maj. Genl. A. S. Gauraya v. S. N. Thakur, (AIR 1986 SC 1440) that the Supreme Court has specifically held as under :