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2011 DIGILAW 1117 (RAJ)

Mohammed Rafique v. Barkat

2011-05-24

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—Aggrieved by the order dated 13.07.2010 passed by the Family Court, Jodhpur, whereby the learned Judge has directed the petitioner to pay a maintenance of Rs.2,000/- per month, the petitioner has sought the refuge of this Court. 2. The learned counsel for the petitioner has raised a single contention before this Court, namely under Section 7 of the Family Courts Act, 1894, the Family Court does not have the jurisdiction to entertain an application filed under Section 125 Cr.P.C. In order to buttress this contention, the learned counsel has relied upon the case of Shahidul Haq Chisti vs. Smt. Rana Nahid & Anr. (AIR 2010 (NOC) 1101 (Raj.) = 2011(2) RLW 1187). 3. On the other hand, the learned counsel for the respondent has relied upon the case of Shabana Bano vs. Imran Khan (2010 (1) Civil CC 40 (S.C.) = 2010(1) RLW 566 (SC)) in order to buttress his contention that the Family Court does have the jurisdiction to entertain an application filed under Section 125 Cr.P.C. 4. Heard the learned counsel for the parties and perused the case law cited at the Bar. 5. Section 7 of the Act is as under :- 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 suit and proceedings of the following nature, namely : (a) a suit or proceeding between the parties to a marriage for decree of a 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 the 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 this Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment. 6. A bare perusal of the said provision clearly reveals that the Family Court would have the jurisdiction in respect of “suits and proceedings in the nature to referred in explanation”. According to sub-clause (f) of the Explanation “a suit or proceeding for maintenance” can be heard by the Family Court. The words “suits or proceedings for maintenance” have not been limited by specifying as to the maintenance under a specific law. Thus, the words “suit or proceedings for maintenance” would have to be given the widest interpretation to include maintenance under any law in force for the time being. Therefore, the contention raised by the learned counsel for the petitioner that sub-clause (f) of the Explanation debars the hearing of an application under Section 125 Cr.P.C., is clearly untenable. 7. Thus, the words “suit or proceedings for maintenance” would have to be given the widest interpretation to include maintenance under any law in force for the time being. Therefore, the contention raised by the learned counsel for the petitioner that sub-clause (f) of the Explanation debars the hearing of an application under Section 125 Cr.P.C., is clearly untenable. 7. Moreover, in the case of Shabana Bano (supra), this issue was dealt with by the Apex Court after analysing the existence of sub-clause (f) of the Explanation, mentioned above. The Hon'ble Supreme Court was of the opinion that the Family Courts would certainly have the jurisdiction to hear an application filed under Section 125 Cr.P.C. Therefore, the judgment in the case of Shahidul Haq Chisti (supra) was impliedly over-ruled by the case of Shabana Bano (supra). Therefore, the case of Shahidul Haq Chisti (supra) does not come to the rescue of the petitioner. Keeping in mind the ratio laid down in the case of Shabana Bano (supra), the contention raised by the learned counsel for the petitioner is unacceptable. Hence, this petition is devoid of any merit; it is, hereby, dismissed.