ANANDRAO MAROTRAO KHARABE Vs. MADHURI ANANDRAO KHARABE

JUDGEMENT

(1.) RULE. By consent rule is made returnable forthwith.

(2.) BY this revision the applicant-husband seeks to quash and set aside the order dated 26-11-2001 passed below Exh. 14 in Petition No. E-30/2001 pending on the file of the Family Court, Nagpur. By the impugned order, the Family Court has rejected a preliminary objection relating to his jurisdiction and held that he has jurisdiction to entertain petition under section 127 of Cri. P. C. The main argument which was made on behalf of the applicant was that an application under section 127 can only be entertained by the same Magistrate who had passed the order in an application under section 125 Cri. P. C. The contention is that, the use of words, "the Magistrate" used in section 127 of the Cri. P. C. must mean "the Magistrate" who has passed the order granting maintenance under section 125 Cri. P. C. My attention is drawn to the fact that in section 125 Cri. P. C. the word used are "a Magistrate". The argument is that any Magistrate of the First Class can pass an order under section 125 of Cri. P. C. in view of the words, "a Magistrate", but since different words, "the Magistrate" have been used in section 127 that must necessary mean that the legislature contemplated that an order under section 127 be passed by the very same Magistrate. The reliance has been placed by the applicants on a judgment of this Court in the case of (Vitthalrao v. Ratnaprabha)1979 Bom. C. R. 249 : 1978 Mh. L. J. 393. This case decided by M. D. Kamdi, J. , was held to be per incuriam by another judgment of this Court in the case of (Savitribai v. Vitthalrao)1986 Mah. L. R. 27. In the later case the order under section 125 was passed by the J. M. F. C. , Shrirampur, but the beneficiary filed an application under section 127 Cri. P. C. at Aurangabad, it was held that the Court at Aurangabad has jurisdiction.

(3.) ONE more judgment of this Court in the case of (Prabhakar v. Karuna)1988 B. M. C. 355 decided by G. G. Loney, J. , takes the same view as has been taken in (1988 Mh. L. J. 27) In this case, it has been categorically held that the words "the Magistrate" cannot mean "same Magistrate" and the "same Court". It has been held in this case that under the scheme of the Act, the application under sections 125 and 127 of Cri. P. C. are to be decided by the Magistrate, First Class who are having co-extensive jurisdiction.