Allahabad High Court
Smt. Durgawati Devi vs Muktinath Tiwari on 29 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1113
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH These petitions have been filed by the wife for transfer of proceedings under Section 125 (3) Code of Criminal Procedure (hereinafter referred as Cr.P.C. 1973,) and Section 127 Cr.P.C bearing Case No. 119 of 2015, Smr. Durgawati Devi Vs. Muktinath Tiwari and Case No. 118 of 2015, Smt. Durgawati Devi Vs. Muktinath Tiwari respectively from the Principle Judge Family Court, Faizabad to the court of Principle Judge Family Court, Ambedkar Nagar.
During the Course of argument a question arose as to whether an application under Section 24 of the Code of Civil Procedure, 1908 (herein after referred as C.P.C.) would be maintainable for transfer of proceedings under Section 125 and 127 Cr.P.C. 1973, or not? This query had been put to the learned counsel for the applicant by the Court vide its order dated 07.02.2020.
When the matter was taken up for hearing, thereafter, learned counsel for the applicant relied upon a decision of the Supreme Court reported in (2004) 5 SCC 196; Vijay Kumar Prasad Vs. State of Bihar and others; wherein it had been held that proceedings under Section 125 Cr.P.C were of Civil nature. He contended that proceedings in question being of a civil nature, transfer application under Section 24 CPC would be maintainable before this Court. He also relied upon decision of a Co-ordinate Bench of this Court in the case of Mohammad Nadeem Vs. State of U.P. and other in Criminal Revision No. 98 of 2015 and connected matters wherein it had been held that judgments and orders passed by the Family Court would be subject to the remedy provided under Section 19 of the Family Courts Act, 1984 and not the remedy available under the Criminal Procedure Code, 1973 or the Code of Civil Procedure, 1908 and it will be deemed to be a Civil Court for the purpose Section 19 of the Act, 1984. Based on it he submitted that there is no difficulty in maintaining an application under Section 24 CPC for transfer of the proceedings pending before the Family Court, under Section 125 and 127 Cr.P.C. 1973, as it is deemed to be a Civil Court. Relying upon the same decision he contended that against an order passed by the Family court, a petition under Section 482 Cr.P.C would not be maintainable, as the Family Court is deemed to be a Civil Court and not a Criminal Court subordinate to High Court within meaning of 482 Cr.P.C. 1973, Therefore, according to him, for this reason also an application under Section 24 C.P.C would be maintainable.
The Family Courts Act, 1984 (herein after referred as Act, 1984) was enacted by the Parliament to provide for the establishments of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. For the purposes of the issue involved in this application Section 7 and 10 of the Act, 1984 are relevant as they deal with jurisdiction and procedure generally, respectively. Section 7 dealing with jurisdiction reads 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 aw for the time being in force in respect of suits and proceedings of the nature referred to in the Explananation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court, as the case may be, such subordinate civil court for the area to which the jurisdictionof 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 of proceeding for an order or injunction in circumstances arising out of a mutual relationship;
(e) a suit of proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit of 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.
Section 10 dealing with procedure generally to be followed in the Family Courts reads as under:-
" 10. Procedure generally.-- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other."
On a bare perusal of Section 7(1) the Court finds that the Family Court, subject to other provisions of the said Act, has been vested with jurisdiction exercisable by any District Court or any Sub-ordinate 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 for this purpose it is deemed to be a District Court or as the case may be such sub-ordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Clause (a) to (g) mentions about the suits and proceedings referred in Section 7(1)(a). Clause (f) of the explanation to Section 7(1) refers to suit or proceeding for maintenance. The suit or proceeding for maintenance referred in Clause (f) however is distinct from the proceedings for maintenance under Section 125 and 127 of Chapter IX Cr.P.C. 1973, This is evident from the fact that the latter proceedings are separately dealt with and are separately mentioned in Sub-section 2 of Section 7. Therefore, reference to suit or proceedings for maintenance in Clause (f) of the explanation to Section 7 (1) appears to be a reference to such proceedings under the Hindu Adoption and Maintenance Act, 1956 or the Hindu Marriage Act, 1955. If the said provision included the proceedings for maintenance under Section 125 and 127 then the legislature would not have mentioned the latter proceedings separately under Sub-section 2 of Section 7.
Now as per Sub-section 2, a Family Court, subject to other provisions of the Act, shall have and exercise also as jurisdiction exercisable by the Magistrate of first class under Chapter IX (relating to order for maintenance of wife children and parents of the Code of Criminal Procedure,1973) and such other jurisdiction as may be conferred on it by any other mention. The distinction between the two jurisdictions, one mentioned in Section 7(1) and the other in Sub-section 2 of Section 7, is thus clear from the scheme of the Act itself. Now the question is as to what is the procedure to be applied to these two jurisdiction and to the proceedings arising there from especially in the context of transfer of proceedings under Section 125 and 127 Cr.P.C. 1973 pending before the Family Court i.e. whether an application under Section 24 CPC will apply or an application under Section 407 Cr.P.C. will apply or for that matter any other remedy would be available in this regard. In this context when the Court peruses Section 10, which describes the procedure generally to be followed by the Family Court, it is revealed that Sub-section 1 thereof, which is subject to other provisions of the Act and the Rules, says that the provisions of the C.P.C. 1908 and of any other law for time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973), before a Family Court, and for the purposes of application of the C.P.C., a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Now the said provision itself makes it very clear that the C.P.C. applies to suits and proceedings other than the proceedings under Chapter IX of the Cr.P.C. Thus Cr.P.C,1973 is excluded from application to suits and proceedings referred in Section 10(1) which is obviously a reference to the suits and proceedings mentioned in Section 7(1) read with clause (a) to (g) of the explanation to it.
Sub-section 2 of Section 10, which is again subject to the other provisions of the Act and the Rules, says that the provisions of the Cr.P.C. or the rules made thereunder, shall apply to the proceedings under Chapter IX Cr.P.C before a Family Court. Thus Cr.P.C applies to proceedings under Chapter IX. It being so, a logical corollary of it is that, for the transfer of any proceedings under Section 125 and 127 Cr.P.C. 1973, which fall under Chapter IX Cr.P.C. 1973,, the Cr.P.C, 1973 applies. Section 407 Cr.P.C. 1973, contains a provision which empowers the High Court to transfer any particular case from a Criminal Court subordinate to it its authority to any other criminal Court of equal or superior jurisdiction. The High Court may either act either on the report of the lower Court or on the application of the party interested or on its own initiative. In the instant case a transfer is being sought from the Family Court, Faizabad to the Court of Principle Judge Family Court, Ambedkar Nagar that is outside the sessions division have an application will lie before the High Court.
Now from the bare perusal of Section 10 (1), it is evident that the Family Court is deemed to be a Civil Court for the purposes of suits and proceedings governed by the C.P.C and not for the purposes of proceedings under Chapter IX of the Cr.P.C, as has already been discussed herein above. So far as proceedings under Chapter IX of the Cr.P.C. are concerned, the Family Court exercises jurisdiction exercisable by the Magistrate of the first class under the Code of Criminal Procedure, therefore, this Court is of the view that Section 407 would clearly apply for transfer of proceedings under Section 125 and 127 Cr.P.C. 1973, as they are contained in Chapter IX, Cr.P.C. 1973.
The contention of the learned counsel for the petitioner that application under Section 24 C.P.C would be maintainable in the facts and circumstances of the case is thus unacceptable.
The fact that the proceedings under Section 125 Cr.P.C have been held by the Supreme Court to be essentially of a Civil nature does not make much of a difference so far as applicability of the provisions of CPC or Cr.P.C to such proceedings are concerned as this is an aspect which is governed by the provisions contained in the Act, 1984 itself as already discussed. As per Sub-section 2 of Section 10 in the Code of Criminal Procedure applies to proceedings under Section 125 and 127 Cr.P.C. The Counsel could not point out any other provisions in the Act or the Rules, in the Act, 1984 or the rules made thereunder if any, which could persuade the Court to take any other view of the matter.
Even as per the judgment in Mohammad Nadeem (Supra) provisions of CPC have not been made applicable to proceedings under Chapter IX and there is nothing therein which could persuade this Court to hold otherwise. The ratio of the said judgment on the issue as to whether an appeal would lie under Section 19 of the Act, 1984 or remedy under the provisions of any other law for the time being in force like Cr.P.C., CPC and Hindu Marriage Act is available, does not have any bearing so far as the question involved in this application is concerned. The question here is as to whether, for transfer of proceedings under Section 125 and 127, C.P.C will apply or Cr.P.C will apply. From a bare perusal of Sub-section 2 of Section 10, as already discussed, and for the reasons already given in the Cr.P.C. which applies and it contains a provision for transfer of such proceedings under Section 407 thereof.
In the aforesaid case of Nadeem as there was a specific remedy against the orders of the Family Court by way of an appeal under Section 19 (1) of the Act, 1984, therefore, the provisions of the CPC and the Cr.P.C were held to be inapplicable but the said reasoning does not apply in this case in view of the unambiguous provision of the Act, 1984 itself in this regard, as noted hereinabove, which permits the applicability of Cr.P.C. to proceedings under Chapter IX Cr.P.C. This is also the view taken by a co-ordinate Bench of this Court in the Case of Durga Prasad Vs. Family Judge, Bareilly, 98 (33) ALR 537.
In view of the aforesaid discussion, it is not necessary to go into the question as to whether remedy will lie under Article 227 of the Constitution of India as suggested by some of the learned Counsels, as this would be the case only if there was no remedy available in the Cr.P.C. 1973.
In view of the above these applications/petitions under Section 24 C.P.C are not maintainable and are accordingly dismissed but with liberty to seek other appropriate remedy available in law and without prejudice to the same.