Final Order 1

Order Details: Order Below EX 1
Pdf Text: CNR No.MHMM18-001331-2022 C. C. NO. 37/DV/2022
CNR No.MHMM18-003892-2022 C. C. NO. 188/MISC./2022
RIZWANA V/s. AFZAL.
ORDER BELOW APPLICATION AT (Exh.-2)
The present application filed by the respondent challenging the
jurisdiction of this court.
2. According to respondent the maintenance proceeding under
section 125 of Code of Criminal Procedure is not maintainable before
Judicial Magistrate First Class then Metropolitan Magistrate, in view of
provision of Family Courts Act. Therefore, the respondent prays that, point
of jurisdiction be decided, as preliminary issue.
3. Per contra, by filing say at (Exh.-3) applicant resisted the
application and contended that, Judicial Magistrate First Class is having
jurisdiction to decide the maintenance petition under section 125 of Code
of Criminal Procedure. Therefore, application is not tenable and prayed for
rejection of application.
4. I have heard both side. Perused record. Ld. Advocate for
applicant contended that, the jurisdiction for maintenance proceeding
under section 125 of Code of Criminal Procedure is with JMFC. Therefore,
this court has jurisdiction. On this point she relied on the case of Case
Miscellaneous Civil Application No.159/2023 decided on 09/07/2024 and
on the case of Shikhar Goel V/s. Robina Kaushik, Criminal Revision
Petition No.347/2021, decided on 16/09/2021 by Hon’ble High Court
Delhi.
5. It appears that, applicant has filed the maintenance proceeding
under the provision of section 125 of Code of Criminal Procedure and
under the provision of Muslim Women (Protection of Rights on Divorce)
Act, 1986.
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C. C. NO. 37/DV/2022 ORDER BELOW EXH.-2
6. I would like to be stated here that, section 8 of Family Court
Act, which is read as under…
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 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.
7. Section 7 of the Family Court Act, 1984, provides the provision
of jurisdiction of the Family Court, wherein in clause (f) provides that, the
suit or proceeding for maintenance, shall be instituted before Hon’ble
Family Court.
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C. C. NO. 37/DV/2022 ORDER BELOW EXH.-2
8. Thus, in view of above provision it appears that, any
maintenance proceeding under Code of Criminal Procedure shall be tried
or decided by the Hon’ble Family Court.
9. So far as, the present case is concerned the Family Court has
been established for District Brihan Mumbai and therefore, in view of
provision of section 7 and 8 of Family Court Act the proceeding for
maintenance is needs to be transfer or return to the applicant to file it in
the Family Court. So far as, the citation cited by applicant are concerned
facts of the cited case laws and present case at hand are altogether
different, hence, ration laid down in those case are not applicable. Hence,
I proceed to pass following order.
ORDER
1 The proceeding be returned to the applicant to file it
in the Family Court, Bandra, Mumbai.
Mumbai.
Date : 05/10/2024.
SRD.
Sd/-
Metropolitan/Judicial Magistrate,
(First Class), 71st Court, Bandra, Mumbai.
Dictated on :- 05/10/2024.
Transcribed on :- 05/10/2024.
Checked on :- 10/10/2024.
Signed on :- 10/10/2024.
SRD
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