HARIHAR MOHAPATRA Vs. DEBASIS MOHAPATRA

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash the criminal proceeding vide M.C. No. 67 of 2013 filed under Sec. 125, Cr. P.C , 1973by the present opposite party on the file of learned S.D.J.M., Chhatrapur by setting aside the impugned order dated, 18.07.2016 passed by the said Court.

(2.) The present opposite parties No 1 and 2 represented through their material grandfather are the sons of the present petitioner The present petitioner along with his family members was arrestee in a case with the allegation of murder of the wife of the petitioner. The present two opposite parties, minor children of the present petitioner were left in custody of the;r maternal grandfather by the Police. Thereafter, the maternal grand-father of the opposite parties filed the proceeding under Sec. 125, Cr. PC. claiming maintenance for the children from the petitioner-father. In the said proceeding, the learned Trial Court awarded an interim maintenance @ Rs 3,500.00 per month against the present petitioner in favour of the opposite parties. The said order of interim maintenance was challenged before this Court in CRLMP No 666 of 2014, which was disposed of on 201.2016 with the specific directions that the maternal grand-father of the opposite parties shall hand over the custody of the children to the petitioner within a stipulated period if the petitioner does not come forward to take over such custody then the opposite parties shall continue to stay with their maternal grand-father and shall be entitled to get interim maintenance till final disposal of the main proceeding under Sec. 125, Cr. P.C., 1973 It was also ordered that if the maternal grand-father failed to hand over the custody of the children to the petitioner-father, the order of interim maintenance would be stayed till final disposal of the proceeding under Sec. 125, Cr P.C , 1973In the said order, this Court also fixed the specific date and mode of compliance of the aforesaid order. Thereafter, the direction for handing over the custody of the children was not carried 'out by the maternal grand-father of the children who instead filed an application for custody of those children. The present petitioner moved an application before the trial court Court submitting that he was willing to take back his children to his custody and the maternal grand-father having failed to comply the direction of this Court in handing over their custody, there remained no question to be decided that the petitioner either refused or neglected to maintain his children so as to justify the claim of maintenance under section 125 of the Cr. P.C., 1973 Hence, it was submitted that the proceeding being not maintainable, should be dropped. Some case laws and observation of the Honourable Apex Court as well as of different high Courts were also relied upon on behalf of the petitioner in support of his contentions before the Trial Court.

(3.) The learned Trial Court by the impugned order dated 18.07.2016 rejected the said application with the observation that question of maintainability of the proceeding cannot be decided at this is stage before taking up hearing of the case. It was further observed that thus at, as to the proof of neglect or refusal to maintain the minor children is to be decided alter nearing of the proceeding. It was submitted by the learned counsel for the petitioner that since it remained admitted on record that the maternal grand-father of the children did not hand over the custody of the children to the present petitioner despite the willingness of the petitioner coupled with the direction of this Court, there remained nothing to be decided by the learned Trial Court since the basic arid primary requirements like refusal or neglect to maintain, the required causes of action under Sec. 125,Cr. P.C. are absolutely absent. The case laws as placed before the Trial Court have also been placed before this Court.