MUNNABHAI RAJAKBHAI VAGDANI Vs. AMAN MUNNABHAI VAGDANI

JUDGEMENT

(1.) THIS revision under Sec. 397 of the Code of Criminal procedure has been filed by the petitioner challenging the legality and validity of order dated 5-12-2006 passed in Misc. Cri. Appln. No. 79 of 2003 by the learned Judicial Magistrate (First Class), Mangrol, Junagadh District, whereby the petitioner was directed to pay maintenance to his minor son @ Rs. 750/- per month from the date of application.

(2.) HEARD learned Advocate for the petitioner, Mr. S. V. Parmar, learned advocate for the respondent No. 1, Mr. H. R. Prajapati and learned Addl. Public Prosecutor for the respondent No. 2-State, Mr. K. P. Raval.

(3.) IT is submitted by Mr. Parmar that nowhere it has come on record that the petitioner at any point of time had neglected and refused to maintain the minor child Aman Munnabhai Vagdani. It is also submitted that for getting custody of the child, the petitioner has filed Misc. Civil Appln. No. 130 of 2004 under the Guardian and Wards Act before the Addl. District Judge and fast Track Court at Junagadh. However, said application was rejected vide order dated 12-10-2007. Said order was challenged by him before the High Court wherein this Court was of the view that as the matter was conducted before the trial Court under the Guardian and Wards Act and not under the Mohammedan law, he was directed to approach the Court below under the Mohammedan law. Hence, said application was permitted to be withdrawn. Thereafter, Misc. Cri. Appln. No. 14 of 2009 was filed by the present petitioner under the mohammedan Law before the Court below which is pending at present. Hence, according to him, a jurisdictional error has been committed by the trial Court in granting maintenance to the minor especially when the petitioner is the natural guardian as the mother is no more alive. Further, a gross illegality has been committed by the trial Court in ordering to pay maintenance to minor without considering that the petitioner is always ready and willing to keep minor with him as his natural guardian and he is ready and willing to maintain him- as his son. He has also taken me through the deposition of the grand-father of the child-Bahudurbhai Mamadbhai Vadsaria. He has placed reliance upon the following judgments : (i) AIR 1986 SC 1186 in the case of State of Madhya Pradesh and Ors. v. Sardar D. K. Jadav, head note (B) of which reads as under :