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2010 DIGILAW 1244 (AP)

Razia Begum v. Mohd Iqbal

2010-12-10

SAMUDRALA GOVINDARAJULU

body2010
JUDGMENT 1. This revision is filed questioning the impugned order dated 08-06-2010 passed by the Additional Metropolitan Sessions Judge for trial of JHCBBC-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad, in SR No. 1094 of 2010 in MC No.89 of 2010 rejecting the petition filed by sister against brother for temporary injunction restraining the brother from alienating house property mentioned in the schedule by any means. The lower court rejected the application filed by the petitioner/sister in limine on the ground that the petition filed by the petitioner on the ground that MC No. 89 of 2010 filed by the petitioner was one under Section 125 Cr.P.C. and that therefore, provisions of C.P.C will not apply to it. 2. It is contended by the petitioner’s counsel that the order passed by the lower court is erroneous in as much as the petitioner filed the proceeding before the lower court under Section 7(1)(f) of the Family Courts Act, 1984 ( in short, the Act) and not under Section 125 Cr.P.C. For appreciating the contention of the petitioner’s counsel, a reference to Section 7 of the Act becomes relevant and it reads as follows: “7. Jurisdiction - 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 purposes 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 suit 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 or 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.” 3. Sub-Sections (1) & (2) of Section 7 of the Act deal with jurisdiction of the Family Court. It does not deal with rights and liabilities of the parties before the Family Court. Rights and liabilities of the parties depend on their personal laws well as civil and criminal laws applicable to them. The petitioner filed MC No. 89 of 2010 in the lower court under Section 7(1)(f) of the Act by affixing court fee stamp of Re.1/- on it. The petitioner’s counsel contends that explanation (f) to Section 7(1) of the Act confers jurisdiction on the family court on relationship not only a suit or other proceedings for maintenance and that the petitioner framed the petition in the lower court as the proceeding and not as a suit for maintenance and therefore, the petitioner need not pay court fee as in a suit. When questioned under what provision the proceeding was instituted by the petitioner in the lower court, the petitioner’s counsel stated that the petitioner initiated the proceedings in view of the right conferred on her to claim maintenance from her brother under Muslim Personal Laws. Thus, the petitioner wants the lower court to enforce Muslim Personal Laws in the Proceeding before the lower court. Then, he has to necessarily file a suit under Section 9 of C.P.C for enforcing the said right conferred on the petitioner under Muslim Personal Law by way of praying relief of maintenance against her brother. For filing a suit under Section 9 of C.P.C, claiming maintenance, the petitioner has to pay necessary court fee in the proceeding before the lower court. Without doing so, the petitioner cannot claim that she filed the proceeding in the lower court under explanation (f) to Section 7(1) of the Act. 4. As per Section 7(2) of the Act, the family court exercises jurisdiction by a Magistrate of the First Class under Chapter IX of Cr.P.C. In this case, though the petitioner filed MC No. 89 of 2010 in the lower court under Explanation (f) to Section 7(1) of the Act, it is virtually, a petition filed under Section 7(2) of the Act. This conclusion is inevitable having regard to the type of proceeding assigned in the petition as MC (Maintenance Case) and court fee of Re.1/- paid thereon. This is not a proceeding under Section 7(1) explanation (f) of the Act because the petitioner did not frame petition as a suit under Section 9 of C.P.C and the petitioner did not pay court fee under the relevant provision of the A.P. Court Fees and Suits Valuation Act, 1956. Thus, the impugned order passed by the lower court is legal and proper. 5. The petitioner’s counsel submitted that he may be permitted to amend the frame of the Proceeding in the lower court as suit and to pay court fee payable as a suit for maintenance. The petitioner is at liberty to approach the lower court with appropriate petition in that regard, in which event, the lower court would pass an order on merits after giving opportunity to the respondents to file counter and after hearing both the parties. The petitioner is at liberty to approach the lower court with appropriate petition in that regard, in which event, the lower court would pass an order on merits after giving opportunity to the respondents to file counter and after hearing both the parties. In case, the petitioner is permitted to amend frame of the petition as a suit, then the lower court may address for transfer of amended proceeding from that court to the family court in City Civil Court, Hyderabad. 6. Subject to the above observation, the revision petition is dismissed. No costs.