Patna High Court
Hari Shankar Shah vs State Of Bihar And Ors. on 20 December, 2004
Equivalent citations: II(2005)DMC446
Author: M.L. Visa
Bench: M.L. Visa
ORDER M.L. Visa, J.
1. Heard learned Counsel appearing on behalf of the petitioner opposite party No. 2 and the learned A.P.P.
2. The petitioner has filed this application for transferring the Maintenance Case No. 185(M) of 2002 filed by opposite party No. 2, father of the petition, against the petitioner under Section 125 of the Code of Criminal Procedure (for short 'Cr.P.C.') pending in the Court of Sub-Divisional Judicial Magistrate, Bhojpur at Ara to any other Court to competent jurisdiction at Patna.
3. The case of the petitioner is that his father, opposite party No. 2 has filed a maintenance case against him in the Court of Chief Judicial Magistrate, Bhojpur at Ara under Section 125, Cr.P.C. which was numbered as 185 (M) of 2002 and which has been transferred to the Court of Sub-Divisional Judicial Magistrate, Bhojpur at Ara for disposal. According to the petitioner, he is a State Government employee and has been posted at Patna for several years where he is residing and the maintenance case filed by opposite party No. 2 against him is not maintainable in the light of provisions of Section 126 of the Cr.P.C. Prayer has been made for transferring the aforesaid maintenance case from Bhojpur to Patna.
4. Opposite party No. 2 has appeared and has opposed the prayer of the petitioner by filing a counter affidavit stating therein that no doubt, the petitioner is residing at Patna for couple of years but the job of the petitioner is transferable, therefore, the maintenance case has been filed in native Court of his permanent residence. The further case of opposite party No. 2 is that four other cases including the case under consideration are pending in different Courts at Bhojpur at Ara where the petitioner is appearing on dates fixed in the cases and opposite party No. 2 is an old person aged about 65 years and unable to move freely from one place to another. Prayer has been made for dismissing the application of the petitioner by refusing his prayer for transferring the maintenance case from Bhojpur to Patna.
5. As stated above, the fact that the petitioner is an employee at Patna where he is residing is admitted by opposite party No. 2 in paragraph 6 of the counter affidavit. Learned Counsel for the petitioner by relying upon a decision of the Supreme Court in the case of Vijay Kumar Prasad v. State of Bihar and Ors., II (2004) CCR 152 (SC) : 2004 (3) Supreme 134, has submitted that under Section 126, Cr.P.C. a case for maintenance under Section 125, Cr.P.C. has to be filed where the person from whom the maintenance is claimed, is present and the benefit which has been given to wife and children for initiating this proceeding at the place where they reside has not been given to a father.
6. The argument advanced on behalf of learned Counsel for opposite party No. 2 that the petitioner is on transferable job, therefore, the maintenance case has been filed at Bhojpur which is the home district of the petitioner does not help the case of opposite party No. 2 for choosing the place for filing the maintenance case, according to his own convenience, when admittedly at the time of filing of maintenance case the petitioner was posted at Patna and not at Bhojpur. It is not the case that case of opposite party No. 2 for maintenance will follow the petitioner wherever he will be transferred. In the case of present nature the Forum for filing the case has to be selected at the time of filing of the case where the person from whom the maintenance is claimed, living at that time.
7. The present case is squarely covered by the aforesaid judgment relied upon by the learned Counsel for the petitioner.
8. In the result, this application is allowed. Maintenance Case No. 185 (M) of 2002 pending in the Court of Sub-Divisional Judicial Magistrate, Bhojpur at Ara is ordered to be transferred to Patna. The learned Chief Judicial Magistrate, Bhojpur at Ara will recall the case from the Court of Sub-Divisional Judicial Magistrate, Bhojpur at Ara and after taking permission from the learned District Judge, Bhojpur at Ara will transfer the record to District Judge, Patna and the District Judge, Patna will take necessary steps for transfer of the case to any other competent Court at Patna.