Rakesh Kumar Dikshit vs Smt. Jayanti Devi alias Jayawati Devi

S.K. Phaujdar, J.—This is an application u/s 19(4) of the Family Courts Act, 1984, challenging the order of the Principal Judge, Family Court, Kanpur Nagar, in Case No. 1173 of 1988 u/s 125, Code of Criminal Procedure. The application before the Court below was filed by the present revisionist claiming maintenance from the revisionist describing him as her husband. The application was allowed and the present revisionist was directed to pay a monthly allowance of Rs. 5,00 to Smt. Jayanti Devi as maintenance.

When the learned Counsel for the applicant was heard on 29.8.1996, an order was passed to admit the matter subject to the decision on the point if the present revision would be treated as a civil revision or a criminal revision. Upon admission, there was also a stay order recorded directing stay of the operation of the impugned order.

After die orders dated 29.8.1996 were recorded, a case-law came to my notice which is relevant on the point in issue as indicated in the order dated 29.8.1996. In this case between Munna Lal Vs. State of U.P. and another, , a Division Bench of this Court was hearing a matter on a reference from a Hon''ble single Judge if Section 24, CPC would apply to family Courts constituted under the Family Courts Act. Before the Court, Crl. Misc. (Transfer) Application No. 77 of 1989 was filed u/s 24, CPC for transferring a case u/s 127, Code of Criminal Procedure from one Family Court to another. There was another transfer application before the Court u/s 24, CPC in connection with an application u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. A question arose in these matters whether the High Court could transfer a case from one family Court to another family Court. In giving its judgment upon this reference, the Division Bench had discussed, in paragraph 4 of file judgment, the true interpretation of Section 10 of the Family Courts Act. In paragraph 5 of the judgment, the Court was of the view that the family Court was a substitute of a civil Court in respect of matters referred in the Explanation to Sub-section (1) of Section 7 and when exercising powers under Chapter 9 of the Code of Criminal Procedure the family Court is the substitute of a Magistrate 1st Class. It was further observed in paragraph 6 of this judgment that when a family Court is exercising powers and jurisdiction under Chapter 9 of the Code of Criminal Procedures, it is a criminal Court equal to the Magistrate 1st Class and the High Court will have the powers to transfer the case from one family Court to another u/s 407, Code of Criminal Procedures Accordingly, a direction was given in paragraph 15 of the judgment. The learned Counsel for the revisionist submitted before me another case law of the Allahabad High Court, also by a Division Bench, in the case of Raj Kishore Mishra Vs. Smt. Menna Mishra, . It was a case under the Hindu Adoption and Maintenance Act and an appeal was entertained by the High Court u/s 19. This case law, however, does not answer, in any paragraph, the present question regarding jurisdiction.

It was contended by the learned Counsel that Section 6 of the Code of Criminal Procedures states what the different criminal Courts are and the family Court is not included therein. It was contended that the family Court was created by a Special Act (Act No. 66 of 1984) and it cannot be the Court of a Magistrate, although by incorporation it was given the powers of a Magistrate. It was further contended that the Family Courts Act, in Section 7(1)(b), declares that the family Court shall be treated to be a district Court or a subordinate civil Court in exercising jurisdiction u/s 7(1). It was contended that no such declaration is there in the Family Courts Act declaring it to be a criminal Court while exercising powers of a Magistrate under Chapter 9, Code of Criminal Procedure. A very reading of Section 7 indicates that the family Court has been empowered to take cognizance of the matters enlisted therein which otherwise would have been exercised by the civil Courts and for this purpose only, the family Court would be a civil Court. So far the petitions under Chapter 9 of the Code of Criminal Procedure are concerned, the family Court shall exercise jurisdiction exercisable by a Magistrate of the First Class. Sub-section (2) of Section 7 does not say that the family Court would be a civil Court for the purpose of exercise of this jurisdiction also.

Section 19(4) of the Family Courts Act gives a light of revision to a party aggrieved by an order u/s 125, Code of Criminal Procedure. This right cannot be denied to the present revisionist. Under the High Court Rules, however, the Chief Justice is authorised to distribute files to the different Judges sitting singly or in Division Bench and the Judges are to take up cases of such determination only which will come to them horn time to time. Some Judges are given the determination to take up the civil revisions while some other Judges are authorised to take up the criminal revisions and, accordingly, it. is necessary that a particular application is to be indicated either as a civil revision or a criminal revision.

Section 7 of the Family Courts Act has already been discussed above. Section 18 of this Act is also relevant for consideration of the present point. It says that a decree or an order (other than an order Chapter 9 of the (Criminal Procedure Court) passed by a family Court shall have the same force and effect as a decree or order of a civil Court. Such decree or order is open to execution in the same manner as prescribed in the CPC Section 18 also provides that an order of a family Court under Chapter 9 of the Code of Criminal Procedure is to be executed in the manner prescribed for execution of such order of the Code of Criminal Procedure itself. Section 19 makes an order of a family Court appealable but an order made under Chapter 9, Code of Criminal Procedure is kept out of the scope of appeal. For such orders, a revision has been provided for. In all these sections, a clear distinction has been made between a decrees or order recorded in a proceeding cognizable u/s 7(1) of the Family Courts Act vis-�-vis a proceeding under Chapter 9 of the Code of Criminal Procedure. This only suggests that although the power of both criminal Courts and civil Courts were given to the family Court, the legislature desired that for civil matters, the family Court should be regarded as a civil Court and for a criminal matter; it should be regarded as a criminal Court. Although the Allahabad High Court in the case in Munna Lal Vs. State of U.P. and another, was not confronted with the present question, it was made clear that the family Court exercising jurisdiction under Chapter 9 of the Code of Criminal Procedure was to be treated as a criminal Court. It must be held, therefore, that the order in question was passed by criminal Court and the revision contemplated u/s 19(4) of the Family Courts Act must be given a nomenclature of a criminal revision.

In the aforesaid facts and circumstances, the office is directed to register the present revision application as a criminal revision and place it before the appropriate bench/Court by today itself for favour of further orders. On the finding that it is not a civil revision and with the limitation that I am functioning as a Court dealing with civil revisions, it is not proper for me to record any interim order on application for interim directions. That power is also to be exercised by the competent bench. The orders dated 29.8.1996 on the question of admission and interim order of the same date are, therefore, recalled.