RAJESH KUMAR AND OTHERS Vs. SH. HANS RAJ

JUDGEMENT

(1.) BY his order dated 31st January, 1969, passed under section 488 of the Code of Criminal Procedure (old), Judicial Magistrate 1st Class, Ludhiana, allowed maintenance to Kaushalya Devi and her minor sons Rajesh Kumar and Ramesh Kumar and her minor daughter Anita at the rate of Rs. 30/ -, Rs. 20. Rs. 20/ - and Rs. 15/ - per month, respectively I after Hans Raj, husband of Kaushalya Devi, applied under section 25 of the Guardians and Wards Act and succeeded in getting the custody of Anita in Court on 23rd October, 1969. He was able to get the custody of Rajesh Kumar and Ramesh Kumar also through the Guardian Court on 25th February, 1970. The present application under section 489 of the Code of Criminal Procedure, out of which this revision petition has arisen, was filed by him on the allegations that he was wrongfully deprived of the custody of the three children by Kaushalya Devi therefore, he was under no obligation to maintain them He even went to the extent of levelling a charge of kidnapping them and succeeded in getting her convicted of the same but in appeal she was acquitted In reply to the application Kaushalya Devi refuted the allegations. The parties led evidence. Upon a consideration of the entire matter, Judicial Magistrate 1st Class, Ludhiana, by his order dated 21st June, 1971, cancelled the order pissed against Hans Raj under section 488 of the Code. Feeling aggrieved, the three children moved the Sessions Court, Ludhiana. The Second Additional Sessions Judge, Ludhiana, by his order dated 2nd January, 1973, dismissed the revision petition filed by Rajesh Kumar and Ramesh Kumar but has made a recommendation of this Court that so far as Anita minor is concerned, the order passed by the Magistrate depriving her of the maintenance be set aside. This order will also dispose of Criminal Revision No. 880 of 1973 filed by Rajesh Kumar and Ramesh Kumar.

(2.) SECTION 89 (2) of the Code of Criminal Procedure provides that where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. The crux of the matter in this case is the effect of the order passed by the competent Civil Court directing that custody of the three children above -named be given to their father Hans Raj. As said above, he actually succeeded in having their custody. Later, they vent over to their in mother Kaushalya Devi and they were in her custody even in the course of the present proceedings. Their Learned Counsel invited ray attention to order Exhibit R. 2 dated 28th April, 1971, passed on the application of Kaushalya Devi for being declared their guardian. A perusal thereof shows that counsel for Hans Raj did not object to her keeping them in her custody but as regards her claim to it the same was hotly contested and her application was dismissed by the Guardian Judge, Ludhiana. In Exhibit R. 2 there is nothing to indicate that the previous order Exhibit P.A. of the Guardian Court appointing Hans Raj as the guardian of the three minor children was in any way interfered with. That being so, his right to have their custody remained unaffected. Learned Counsel for Hans Raj placed reliance on a Division Bench decision of the Bombay High Court in Ebrahim Mahomed Mukri v. Khurshedbhai Ebrahim Mukri, A.I.R. 1941 Bom. 267, in which it was held that if the civil Court makes an order under which the children cease to reside with the mother, and if the father is then willing to provide for their maintenance, he can apply to the Magistrate under section 489 of the Code of Criminal Procedure to modify his previous order passed under section 48 of the Code Respectfully agreeing with this view, I find that in this case so far as the two sons Rajesh Kumar and Ramesh Kumar are concerned, no case is made out to interfere with the decision of the two Courts in as much as their father Hans Raj had not only an order of a competent civil Court to have their custody but also he tried his best to maintain them. For certain reasons beyond his control they went over to the mother. Their revision petition (Criminal Revision No. 880 of 1973) is accordingly dismissed.