GOPAL Vs. NANDAKISHORE

JUDGEMENT

(1.) THE applicant is a minor son of the non -applicant No. 1 born out of the wedlock between his mother Geetabai and the non -applicant No. 1.

(2.) THE applicant through his mother, filed an application for maintenance before the Judicial Magistrate, First Class, 3rd Court at Akola, vide Misc. Criminal Case No. 121 of 1993, on the ground that though his mother Smt. Geetabai has relinquished her right of maintenance in consideration of having received a sum of Rs. 10,000/ -, it does not disentitle the applicant from claiming the maintenance. It was also contended that the said deed of relinquishment was got executed by Geetabai under coercion and undue influence, but the said contention is not under examination of this Court. Admittedly, the learned Magistrate found that the non -applicant No. 1 has neglected and refused to maintain the applicant who was at the relevant time aged 5 years and that Geetabai, the mother of the applicant, had no right to relinquish the claim of the applicant by executing the alleged divorce deed or consent letter and found that the applicant is entitled for maintenance at Rs. 100/ - per month. 2. It appears that during the pendency of the application for maintenance, the non -applicant No. 1 -father filed Misc. Judicial Case No. 128 of 1993 before the District Judge, Akola, seeking custody of the applicant. This came to be decided on 18.11.1994 in favour of the non -applicant No. 1, directing Smt. Geetabai to hand over custody of the applicant to the non -applicant No. 1 -father Nandakishore. The non -applicant No. 1 being aggrieved by the judgment and order dated 31.3.1994 passed by the learned J.M.F.C. in Misc. Cri. Application No. 121 of 1993, preferred a revision in the Court of Sessions at Akola. The learned 3rd Additional Sessions Judge, Akola, partly allowed the revision of the non -applicant No. 1 -father by upholding the grant of maintenance at the rate of Rs. 100/ - per month from 5.1.1993 till 18.11.1993 and by omitting fraction, had cancelled the order by setting aside, by giving effect from 1.12.1994.

(3.) IT is further submitted that the mother of the applicant has preferred First Appeal before this Court being First Appeal No. 186 of 1995; in custody matter which has been admitted, and on 14.8.1996, an arrangement has been reached between the parties in which the applicant has been allowed to reside with his mother and the non -applicant No. 1 is permitted to visit him on Sunday and other days at the convenient time and, therefore, the applicant continues to reside with his mother and requires maintenance as granted by the learned Magistrate. Therefore, the impugned order passed by the Additional Sessions Judge, Akola, deserves to be quashed and set aside.