Calcutta High Court
Kumaresh Brambha vs Bani Das And Ors. on 2 August, 1999
Equivalent citations: I(2000)DMC424
JUDGMENT Amit Talukdar, J.
1. Invoking the jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has sought to question an order dated 23.12.1998 passed by the learned Additional Sessions Judge, 6th Court, Alipore, in Criminal Motion No. 222 of 1998 which affirmed an order of the learned Additional Chief Judicial Magistrate, Alipore dated 15.6.1998 passed in T.R. No. 100 of 1998 (Misc. Case No. 562 of 1997). The petitioner being aggrieved by the aforesaid order of the learned Additional Sessions Judge, 6th Court, Alipore passed in Criminal Motion No. 222 of 1998 dated 23.12.1998 whereby refusing his prayer with regard to maintainability of the proceeding under Section 125 of the Code of Criminal Procedure as the opposite party was not his married wife and that he had filed a Title Suit before the learned Munsif for declaration to that effect moved this Court.
2. In this revisional application, it has been contended by the learned Lawyer appearing on behalf of the petitioner that as the Family Court is in seizin of the matter and has kept in abeyance the claim of the opposite party No. 1 for maintenance till the learned Munsif had adjudicated the claim of the opposite party whether she is his married wife or not, the learned Additional Chief Judicial Magistrate, Alipore was also required to stop the proceeding in view of the fact that the opposite party No. 1 was not his wife and that there was a finding, of the Family Court to the said effect. It is further contended that the learned Additional Chief Judicial Magistrate, Alipore and as well as the learned Additional Sessions Judge, 6th Court, Alipore who sat in revision against the order of the former did not apply their judicial mind and mechanically passed their respective orders.
3. There was no representation, however on behalf of the opposite party although notices were sent to her on two addresses as described in Cause Title, one of which returned as "not known" and the other as "not N.C.".
4. Before I advert to the merits of the case, I would like to point out that this is totally a second revision in view of the fact that learned Additional Chief Judicial Magistrate, Alipore by his order dated 15.6.1998 had refused the prayer of the petitioner which being challenged before the learned Additional Sessions Judge, 6th Court, Alipore also having been rejected this Court was approached which is totally forbidden under the provisions of Section 399, Sub-clause (3) of the Code of Criminal Procedure. However, it appears that in order to circumvent the said obstacle as provided by the Code of Criminal Procedure resort has been taken to the provisions of Article 227 of the Constitution of India which to my mind was not just and permissible.
5. Article 227 of the Constitution of India reads as follows :
"(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) Call for returns from such Courts;
(b) Make and issue general rules and prescribes forms for recording the practice and proceedings of such Courts;
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to Attorneys, Advocates and Pleaders practising therein :
Provided that any rules made, forms prescribed or table settled under Clause (2), Clause (3) shall riot be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor. Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces."
6. As such, it appears that the High Court shall have the power of superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. But the powers vested under Article 227 of the Constitution of India, to my mind, cannot be exercised over a Court of competent jurisdiction which has rightly passed an order. The broad principles for exercise of Article 227 of the Constitution of India by the High Court as have been held by the Apex Court are that there has been erroneous assumption of exercise of jurisdiction, error of law patent on the face of record, arbitrary or capricious exercise of authority or there is manifest injustice or flagrant error in the procedure, etc.
7. In the instant revisional application the order under challenge suffers from none of the above defect. On the contrary, I find that the learned Additional Chief Judicial Magistrate, Alipore has given a-perfect reasoned order which was duly assessed by the learned Additional Sessions Judge, 6th Court, Alipore in exercise of its power under Sections 397, 399 of the Code of Criminal Procedure and the decision arrived by the learned Judge was not only in accordance with the law but also was the correct proposition of the facts and circumstances as well as the position of law in the matter.
8. What cannot be done directly cannot also be done indirectly. To circumvent a bar specifically imposed under the Code of Criminal Procedure resort to the provisions of Article 227 of the Constitution of India for moving a second revisional application is deprecated and if the provision of Article 227 of the Constitution of India is allowed to be invoked in by-passing a bar imposed by the statute in the absence of any of the guidelines laid down by the Apex Court, the dream of the founding fathers of our Constitution will be shattered. In this context I rely on the Supreme Court decision of Jagir Singh v. Ranbir Singh, as . The Supreme Court held :
"Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law."
9. Law is now well-settled that a maintenance proceeding under Section 125 of the Code of Criminal Procedure cannot be stayed till conclusion of the civil suit challenging the question of marriage. The petition under Section 125 of the Code of Criminal Procedure is aimed at amelioration of the plight of the destitute and hapless women. A proceeding under Section 125 of the Code of Criminal Procedure is really a summary order which does not determine the rights of the parties as the Magistrate exercises his jurisdiction under Chapter IX of the Code of Criminal Procedure which is a remedial jurisdiction for preventing vagrancy, the decision of the Magistrate under Section 125 of the Code of Criminal Procedure for refusal of maintenance or for grant of maintenance cannot be a decisive factor in any civil proceeding between the parties. As such, the plea of the husband that the question of marriage is under challenge before the Civil Court cannot come to his aid for staying, the maintenance proceeding under Section 125 of the Code of Criminal Procedure till decision of the Civil Court. Entering into the merit of the case, I find that the point taken by the learned Lawyer of the petitioner does not have any basis at all and is not liable to be interfered with.
10. With regard to the point raised by the learned Lawyer of the petitioner that the Family Court has stayed the proceeding till decision of the Civil Court does not impress me at all since the right to claim maintenance under Section 125 of the Code of Criminal Procedure subsists in this case even when there is a proceeding pending in the Family Courts Act, 1984. I draw inspiration from a decision of the Andhra Pradesh High Court in the case of Smt. P. Jayalakshmi v. Ravichandran. The ratio of the decision of the Andhra Pradesh High Court is fully applicable in this case. Since the proceeding under Section 125 of the Code of Criminal Procedure (Misc. Case No. 562 of 1997) which is pending before the learned Additional Chief Judicial Magistrate, Alipore falls within the jurisdiction of 24-Parganas (South). While the Family Court which has been constituted for the city of Calcutta covers the area of the city of Calcutta as defined in Clause (3) of Section 2 of the City Civil Court Act, 1953 (West Bengal Act XXI of 1953) --the area comprised within the local limits for the time being of the ordinary original civil jurisdiction of the High Court at Calcutta and the Metropolitan area of Calcutta, declared, or deemed to be declared, as such under Section 8 of the Code of Criminal Procedure, 1973.
11. According to the notification of the Judicial Department No. 15264-J dated August 25, 1994 which reads as follows :
The Schedule Name of the Court Local limits of the jurisdiction 1 2 Family Court for the City of Calcutta as defined in City of Calcutta Clause (3) of Section 2 of the City Civil Court Act,1953 (West Bengal Act XXI of 1953), that is to say, the area comprised within the local limits for the time being of the ordinary original civil jurisdiction of the High Court at Calcutta Metropolitan area of Calcutta, declared, or deemed to be declared, as such under Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974).
12. As such, it is very much clear that the Family Court established for Calcutta does not cover the area of 24-Parganas (South). Section 3 of the Family Courts Act, 1984 empowers the State Government to constitute the Family Courts for a city or town whose population exceeds one million and the jurisdiction is to be determined by notification issued in consultation with the High Court and the Judge is appointed by the State Government with the concurrence of the High Court. The jurisdiction of the Family Court has been defined in Section 7 of the said Act which reads as follows :
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 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 them 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 or, 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; and
(b) such other jurisdiction as may be conferred on it by any other enactment.
13. Section 8 of the said Act deals with exclusion of jurisdiction and pending proceedings. The Legislature had intended that where a Family Court has been set up for a particular area, the Magistrate or any other Civil Court would not exercise jurisdiction over the cases regarding matrimonial disputes and maintenance matters. Section 8 reads as follows:
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;
(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,
(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.
14. In view of the provisions of Sections 7 and 8 of the said Act, it is amply clear that the learned Magistrate will have no jurisdiction with regard to maintenance matters in the area where a Family Court has been established. In view of the discussions held hereinabove, it would be seen that the Family Court constituted for the city of Calcutta does not cover the jurisdiction of District of 24-Parganas (South). As the necessary corollary of the said proposition the learned Additional Chief Judicial Magistrate cannot deemed to be coming under the purview of Sub-clause (b) of Section 8 of the said Act. The learned Additional Chief Judicial Magistrate not being a Court where the Family Court for the city of Calcutta has been established was well within its bound to proceed with the maintenance case under Section 125 of the Code of Criminal Procedure. The decision of the Andhra Pradesh High Court (supra) squarely fits in the instant case and I respectfully agree with the proposition laid down in the said decision and held that the maintenance proceeding being case No. K.T.R. 100 of 1998 pending before the learned Additional Chief Judicial Magistrate was in order and the said learned Magistrate was not in any way bound by the Family Court proceeding.
15. In view of the discussions held hereinabove, I find no merit in the revisional application and the same is liable to be dismissed. However, I find that valuable time has been lost and no progress could be made in the proceeding pending before the learned Additional Chief Judicial Magistrate, Alipore. Accordingly, I direct that the learned Additional Chief Judicial Magistrate, Alipore shall proceed with the case with utmost despatch and shall conclude the entire proceeding within a span of one month from the date of communication of this order. This order is mandatory in nature and the learned Additional Chief Judicial Magistrate shall not grant any unnecessary adjournment which will disturb the time schedule set out by this Court. The revisional application accordingly stands dismissed.
16. There will be no order as to costs.
17. Office is directed to communicate this order within ten days to the Court of the learned Additional Chief Judicial Magistrate, Alipore.