Allahabad High Court
Mohammad Nadeem vs State Of U.P. & Another on 31 March, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. 21 AFR
Reserved
1- Case :- CRIMINAL REVISION No. - 98 of 2015
Revisionist :- Mohammad Nadeem
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Suhail Kashif
Counsel for Opposite Party :- Govt. Advocate
And
2- Case :- U/S 482/378/407 No. - 490 of 2015
Applicant :- Vechu
Opposite Party :- The State Of U.P And Ors.
Counsel for Applicant :- Parijaat Belaura
Counsel for Opposite Party :- Govt. Advocate
And
3- Case :- U/S 482/378/407 No. - 745 of 2015
Applicant :- Abdul Lateef
Opposite Party :- The State Of U.P Thru Secy., Home Deptt., And Anr.
Counsel for Applicant :- Prashansa Singh
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Vishnu Chandra Gupta,J.
Order
1. The moot preliminary legal question for determination before this Court is:
Whether the judgements and orders passed by Family Court are subject to remedy provided under Section 19 of Family Courts Act, 1984 or under the provisions of any other law for the time being enforce like; Criminal Procedure Code,1973, Code of Civil Procedure,1908 and Hindu Marriage Act etc?
2. The short reference of the Judgement and orders under challenge would be necessary to determine the aforesaid question.
3. By means of Criminal Revision No.98 of 2015 under Section 397/401 Criminal Procedure Code,1973 (For short 'Cr.P.C'), the revisionist has prayed for quashing of the impugned judgement and order dated 20.1.2015 passed by the learned Principal Judge, Family Court, Barabanki in Case No. 438 of 209, Aasiya Khatoon Vs. Mohammad Nadeem under Section 3, Muslim Woman (Protection of Rights on Divorce)) Act, 1986 (for short ''Act 1986'), whereby the application moved by opposite party no. 2 Smt. Aasiya Khatoon under section of 3 of Act, 1986 has been allowed for payment of Mehar (dower) of Rs. 21,000/- and towards expenses during iddat period Rs. 17,500/- to the opposite party no. 2 within one month from the date of order.
4. In Criminal Misc. Case No. 490 of 2015 (U/s section 482 Cr.P.C), the petitioner has prayed for quashing of the order dated 21.10.2014 passed by the Principal Judge, Family Court, Barabanki in Criminal Misc. Case No. 1225 of 2013, Ram Lal and another Vs. Vechu, whereby the application of opposite party No.2 and 3 under section 125 Cr.P.C. has been partly allowed for payment of maintenance of Rs. 3000/- per month to the opposite party no. 2 and Rs. 3000/- per month to opposite party no. 3 till her marriage takes place.
5. In Criminal Misc. Case No. 745 of 2015 (U/s 482 Cr.P.C), the petitioner has prayed for quashing of order dated 13.11.2014 passed by the Principal Judge, Family Court, Barabanki in Criminal Misc. Case No. 2217 of 2014 Smt. Momina Vs. Abdul Lateem, whereby the application under section 125 Cr.P.C. moved by opposite party No.2 and 3 has been partly allowed for payment of maintenance of Rs. 2000/- per month by the petitioner to the opposite party no. 2, Smt. Momina and Rs. 1000/- per month to Km. Mosina opposite party no.3, till she attains majority.
6. Since common question of law is involved in these petitions, the aforesaid question is being disposed of by a common order.
7. I have heard the learned Counsel for the parties and also the State Counsel and perused the material placed before this Court.
8. It is not in dispute that all the orders assailed in these petitions/revision were passed by the Family Courts. All these orders are the final orders deciding the application under section 125 Cr.P.C. or application under section 3 of Act, 1986. The Family Courts Act,1984 (hereinafter referred to as 'FC Act') is a self contained code which contains remedy against the Judgement/decree/order passed by the Family Court as contained in section 19 of the FC Act.
9. Section 7 of the F.C.Act specifies that Family Court shall 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 of sub section (1). It is also mentioned in this section that Family Court 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. Section 7 is quoted below for ready reference;
" 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, 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 of proceeding for an order or injunction in circumstances arising out of a marital 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."
10. Section 8 of F.C.Act excludes the jurisdiction of any other court in respect of jurisdiction which could be exercised by the Family Court and thus a provision has been made that all the proceedings pending on the date of commencement of the Act or from the date of constituting a Family Court in the area, shall stand transferred to the Family Court. Section 8 of F.C. Act is quoted herein below;
8. Exclusion of jurisdiction and pending proceedings.--Where a Family Court has been established for any area,--
(a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),--
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
11. Section 10 of the F.C Act prescribes general procedure,which is also quoted below:
" 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."
12. According to it, subject to provisions of F.C.Act and the rules, the provisions of the Code of Civil Procedure and of any other law for the time being in force, shall apply to the suits and proceedings before a Family Court and for the said purpose of the code, the Family Court shall be deemed to be a civil court and shall have all the powers of such court.
13. So far as proceedings under Chapter IX of Code of Criminal Procedure are concerned, subject to the other provisions of F.C. Act and rules the provisions of Cr.P.C. and the rules made thereunder shall apply in respect of proceedings pending before the Family Court. It also provides that Family Court may lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suits and proceedings or to truth of the fact alleged by one party and denied by the other irrespective of the fact that sub-sections 1 and 2 of section 10 prescribe a particular procedure.
14. Section 18 of the F.C. Act provides the mode of execution of decree and order passed by the Family Court, which is also quoted herein below:
"18. Execution of decrees and orders.--(1) A decree or an order (other than an order under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure,1908 (5 of 1908), for the execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.
(3)A decree or order maybe executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution."
15. The provisions contained in F.C. Act are clear and unambiguous.
-The decree and order (other than the orders passed by the Family Court under Chapter IX of Cr.P.C.) would be executed in the manner prescribed in C.P.C.
-The orders passed by the Family Court under Chapter IX of Cr.P.C. would be executed in the manner prescribed in Cr.P.C.
-The power of the Family Court to execute to its own order and decree has been conferred upon the Family Court and liberty has also been given to execute the order/decree passed by the other Family Court or ordinary civil court to which it is sent for execution.
16. The mode to challenge the judgements /decree/orders passed by a Family Court has been provided under section 19 of F.C. Act, which reads as under :-
"19. Appeal.--(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 or Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgement 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 sub-section shall apply to any appeal pending before a High Court or 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 judgement or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for an examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter 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 sub-section (1) shall be heard by a Bench consisting of two or more Judges."
17. This section clearly speaks that the provisions of the Cr.P.C. or the C.P.C. or any other law have been excluded to challenge the orders passed by the Family Court. An aggrieved person who wishes to challenge the judgement/decree/order passed by the Family Court has remedy only available in section 19 of the F.C.Act.
Section 19 of F.C.Act prescribes the remedy of preferring an appeal in respect of every judgement and order to the High Court, both on facts and law, but no appeal shall lie in the undermentioned cases;
(1)an interlocutory order passed by the Family Court, (2)order and decree passed by the Family Court with the consent of the parties, (3)from an order passed under Chapter IX of Cr.P.C.,
18. The jurisdiction of appeal has been taken away in respect of the order passed under Chapter IX of Cr.P.C. by means of an amendment made by the Family Court (Amendment) Act 1991. Thus a proviso was added in sub sections (1) and (2) of section 19 of the Family Courts Act that if any appeal is pending before a High Court of any order passed under Chapter IX of Cr.P.C. before the commencement of the Amending Act, 1991, the amended provision would not apply.
19. The period of limitation to file an appeal prescribed under section 19 of F.C. Act is 30 days.
20. After the Amendment Act, 1991 sub sections (4), (5) and (6) have been inserted in section 19 .
21. Under sub-section (4) of section 19 of F.C. Act, the power has been conferred upon the High Court on its own motion or otherwise to call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed order under Chapter IX of Cr.P.C. for the purpose of satisfying itself as to the correctness, legality or propriety of the order and as to the regularity of such proceedings. Thus these powers may be termed as revision under sub section (4) of section 19 of the F.C. Act. This power of revision would not be available to an order being an interlocutory order passed by a Family Court under Chapter IX of Cr.P.C.
22. Section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986 has a special provision wherein the parties have an option to govern by provisions of section 125 to 128 of CrPC. If the proceedings are decided finally in terms of section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986, those proceedings shall be the proceedings under Chapter IX of Cr.P.C. Section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986 is extracted below;
"5. Option to be governed by the provisions of Sections 125 to 128 of Act 2 of 1974.--If, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation.--For the purposes of this section, "date of the first hearing of the application" means the date fixed in the summons for the attendance of the respondent to the application."
23. Sub section (5) of section 19 of F.C.Act expressly bars any other remedy before any court against an order and judgement passed by the Family Court.
24. As per the provisions contained in sub-section (6) of section 19 of F.C.Act, appeal preferred under sub-section (1) shall be heard by a Bench constituting two or more judges of the High Court.
25. Section 20 provides over riding effect of F.C. Act. which is reproduced herein below;
"20. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
26. After going through the scheme formulated in the F.C. Act, it is crystal clear that F.C. Act is a self contained code, prescribing the jurisdiction of the court, the procedure in deciding the cases, and the remedies against the judgements and orders passed by the Family Court.
27. In view of the over riding effect as contained in section 20 the provisions of other Act inconsistent to the provisions of the Family Court Act would not apply.
28. Therefore, remedies available in F.C. Act against the judgements and orders passed by the Family Court would prevail irrespective of the fact that remedy is available in any other law. Therefore, the remedies available in the Cr.P.C. in respect of the order passed under Chapter IX of Cr.P.C. could not be pressed into service in view of the expressed provisions contained in section 19 of the FC Act. Similar view has been taken by this Court in Ashutosh Kumar v Anjali Srivastava ,AIR 2009 All 100 (DB)
29. Accordingly, I conclude the matter by delineating the following principles:-
29.1 While conducting the cases under the F.C. Act, the Family Court will be deemed to be a civil court for the purpose of section 19 of F.C.Act.
29.2 The matter referred to in section 7 of F.C. Act except the matters falling in Chapter IX of Cr.P.C. (relating to the order for maintenance of wife, children and parents) would be decided after adopting the procedure prescribed in the C.P.C 29.3. The matter referred to in section 7 falling in Chapter IX of Cr.P.C relating to the order for maintenance of wife, children and parents would be decided after adopting the procedure prescribed in the Cr.P.C.
29.4 All the final judgements and orders passed by the Family Court are amenable to appeal under sub section (1) of section 19 of F.C. Act, both on law and facts.
29.5 No appeal shall lie from the decree and orders passed by the Family Court with the consent of the parties.
29.6. No appeal shall lie against an order passed by the Family Court in the proceedings falling under Chapter IX of Cr.P.C. but the same would be amenable to remedy available under sub-section (4) of Section 19 of FC Act.
29.7 If the proceedings are decided finally in terms of section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986, those proceedings shall be the proceedings under Chapter IX of Cr.P.C. and such order be also amenable to remedy available under sub-section (4) of Section 19 of FC Act.
29.8 No petition/revision under section 19(4) of Family Court Act or under section 397 Cr.P.C. would lie against the final order passed by the Family Court deciding the application under section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. Such order would be amenable by way of appeal under Section 19 (1) of FC Act.
29.9 No appeal shall lie against any interlocutory order passed by the Family Court nor the same would be amenable to remedy under sub-section (4) of Section 19 of F.C. Act.
29.10.No revision shall lie against the judgement/order passed by a Family Courts either under section 115 of CPC or under section 397 read with section 401 of Cr.P.C.
29.11 No appeal or revision shall lie against any judgement or order passed by the Family Court as provided in any other enactment, irrespective of the fact that judgement or order in proceeding under such particular Act have remedy of appeal or revision in such enactment.
29.12 The jurisdiction to hear the appeal under section 19(1) of F.C. Act would be conferred to a Bench constituting of two or more Judges of High Court.
29.13 The petition/revision under section 19 (4) of the F.C. Act would be decided by Single Judge of the High Court.
29.14 Any order passed by family court would not be amenable under section 482 Cr.P.C. as the Family Court shall be deemed to be a civil court and not a criminal court subordinate to High Court within the meaning of section 482 of Cr.P.C.
29.15 No order passed by Family Court would be amenable directly to writ jurisdiction under Article 226 of the Constitution of India in view of the law laid down by the Apex Court in Radheshyam and another Vs. Chhavinath and other in Civil Appeal No. 2548 of 2009, decided by the Apex Court on 26.2..2015.
30. In view of the aforesaid discussions made in this judgement, Criminal Revision No. 98 of 2015 is not maintainable under section 397 read with section 401 Cr.P.C. against the impugned order deciding the application finally under section 3 of Act, 1986 and the appeal lies under section 19 (1) of F.C. Act, which is cognizable by the Division Bench. The revisionist is permitted to withdraw this Criminal Revision with liberty to file an appeal under section 19(1) of FC Act.
a.31. Crl. Misc. Case Nos. 490 of 2015 and 745 of 2015 filed under section 482 Cr.P.C. are also not maintainable against the order impugned deciding the application finally under section 125 Cr.P.C. Hence the petitioners of both these petitions are permitted to withdraw these petitions with liberty to file revision/petition under section 19 (4) of F.C.Act.
(2)32. The Registry of this Court in future shall deal such appeal/revision/petition presented against the order passed by the Family Court in accordance with the directions issued in this judgement.
c.33. Criminal Revision No. 98 of 2015 under section 397 read with section 401 Cr.P.C. and Crl. Misc. Case Nos. 490 of 2015 and 745 of 2015(under section 482 Cr.P.C.) are disposed of as directed here-in-above.
d.34. The Senior Registrar of this Court shall ensure the compliance of order passed by this Court.
(5)Order Dated: 31.03.2015 GSY