Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 961 (JHR)

Md. Guizar Mian @ Guizar Mian v. Zohra Khatoon

2008-08-20

JAYA ROY, M.Y.EQBAL

body2008
Order This appeal has been placed before this Bench for deciding the maintainability of this appeal under Section 19 of the Family Courts Act. 2. The respondent filed an application before the Principal Judge, Family Court, Hazaribagh under Section 125 Cr.P.C. claiming maintenance from the respondent. The case of the respondent is that she was earlier married with the elder brother of the appellant and after his premature death she was again solemnized marriage with the appellant in the year 1973 and, thereafter, both started living together. Out of the wedlock three children were born. Respondent's further case is that appellant again contacted second marriage with one Rabiya Khatoon and started neglecting the respondent and her children. The case was contested by the appellant on various grounds. Both oral and documentary evidences were adduced by both the parties. The Family Court after discussing and considering the entire evidences, recorded a finding that appellant is the husband of respondent and he contacted second marriage and started neglecting the respondent and her children. Accordingly, the application for maintenance filed under Section 125. Cr.P.C. was finally disposed of directing the appellant to pay a sum of Rs. 2,000/- (two thousand) per month to the respondent as maintenance allowance. 3. On the question of maintainability, learned counsel for the appellant submitted that against the impugned order, the appellant filed criminal revision before this Court being Criminal Revision No. 845 of 2007 but the same was permitted to be withdrawn by order 13.6.2008, as the learned Judge did not incline to entertain criminal revision. By the aforesaid order the said criminal revision was dismissed as withdrawn with a liberty to seek relief under the provisions of law. Learned counsel appearing for the appellant submitted that in the aforesaid premises, appellant had no option but to again move this Court by preferring appeal under Section 19 of the Family Courts Act. 4. Section 7 of the Family Courts Act confers power upon the Family Court to exercise all jurisdictions exercisable by any District Court or any subordinate Civil Court under any law for the time being in force. Section 7 reads as under:- "7. 4. Section 7 of the Family Courts Act confers power upon the Family Court to exercise all jurisdictions exercisable by any District Court or any subordinate Civil Court under any law for the time being in force. Section 7 reads as under:- "7. Jurisdictivn.-(1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a District Court or, as the case may be such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature namely:- (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment." 5. From bare perusal of sub-section (2) of Section 7 of the Act, it is manifestly clear that in addition to jurisdiction conferred by sub-section (1), the Family Court shall also exercise jurisdiction which is exercisable by a Magistrate under Chapter IX of the Code of Criminal Procedure relating to order for maintenance of wife children and parents. 6. Section 19 of the Act lays down the provision of appeal which reads as under:- 19. Appeals.-(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family Court to the High Court, both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this subsection shall apply to any appeal pending before a High Court on any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991]. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. [(4) The High Court may, of its. own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chap. IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order not being an interlocutory order, and as to the regularity of such proceeding.] [(5)] Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. [(6)] An appeal preferred under subsection (1) shall be heard by a Bench consisting of two or more Judges." 7. [(6)] An appeal preferred under subsection (1) shall be heard by a Bench consisting of two or more Judges." 7. Sub-Section (4) of Section 19 of the Act specifically provides a revisional jurisdiction to the High Court to call for and examine any record to see the legality or propriety of the order passed by the Family Court under Chapter IX of the Code of Criminal Procedure. The question as to whether revision will lie against the order passed by the Family Court under Section 125 Cr.P.C. is no longer res integra. 8. In the case of II Nasreen Begum @ Nasreen Khatoon vs. State of Jharkhand & Ors." [ (2005)3 JCR 371 (Jhr.)[: 2005(3) JLJR 690 ], a Division Bench of this Court in an appeal filed against the order of maintenance passed by the Family under Section 125 Cr.P.C. held as under:- 2. Chapter V of the Family Courts Act 1984 which contains Section 19 provides for appeals and Revisions against the orders of the Family Court. Section 19(1) provides for appeal as a matter of right from every judgment or order, not being an interlocutory order, of a family Court to the High Court both on facts and on law. In our view, under the said provision, the question of hearing an appeal under Order XLI, Rule 11, CPC would not arise. On the other hand, sub-section (4) of Section 19 makes special provision for revision either suo mota or otherwise by the High Court in respect of orders passed under Chapter IX of the Code of Criminal Procedure in which Section 125 is included. 3. It appears to have been the intention of the Legislature that against the orders passed under Section 125, Cr.PC revision would lie and not an appeal as indicated in Section 19 (1) of the aforesaid Act. In our view, subsection (4) of Section 19 is a special provision with regard to the orders passed under Chapter IX of the Code of Criminal Procedure. 4. In such circumstances, we agree with the department that this appeal is not maintainable and that it should have been filed as a revision. We, therefore, grant liberty to the appellant/applicant to convert the present appeal into a revision. 4. In such circumstances, we agree with the department that this appeal is not maintainable and that it should have been filed as a revision. We, therefore, grant liberty to the appellant/applicant to convert the present appeal into a revision. The learned Advocate is given liberty to take such steps as may be necessary to convert the same and the department is directed to take steps pursuant thereto." 9. In our considered opinion also, appeal does not lie against the order passed by Family Court under Section 125 Cr.P.C. as the same is revisable by the High Court under Section 19(4) of the Act. 10. We, therefore, hold that this appeal is not maintainable. However, having regard to the facts of the case, we permit the appellant to convert this appeal into a criminal revision. After making necessary correction, the Office will register the memo of appeal as Criminal Revision and place it before the appropriate Bench.