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2010 Supreme(AP) 1228
High Court of Andhra Pradesh
SAMUDRALA GOVINDARAJULU
Razia Begum
Versus
Mohd Iqbal
C.R.P.No. 4569 OF 2010
Decided on: 10-12-2010
For the Petitioner:Shaik Mahmood Ali, Advocate.
For the Respondent:Vikha Ahmed, Advocate.
Headnote:
Criminal Procedure Code - Section 125 - Family Courts Act, 1984 - Section 7(1)(f) - Civil Procedure Code - Section 9 - Temporary injunction - Declaration as to the legitimacy - Rights and liabilities of the parties - Petition filed by sister against brother for temporary injunction restraining brother from alienating house property mentioned in the schedule by any means - Lower court rejected application filed by the petitioner/sister in limine on ground that petition filed by the petitioner on the ground that MC filed by the petitioner was one under Section - petitioner’s counsel that order passed by lower court is erroneous in as much as petitioner filed proceeding before lower court under Section 7(1)(f) of the Family Courts Act and not under Section 125 Cr.P.C - For appreciating the contention of petitioner’s counsel a reference to Section 7 the Act becomes relevant and it reads as follows - Jurisdiction Subject to other provisions of this Act a Family Court shall -- Have and exercise all jurisdiction exercisable by any district court or any subordinate civil court under any law for time being in force in respect of suits and proceedings of nature referred to in explanation be deemed for purposes of exercising such jurisdiction under such law to be a district court as case may be such subordinate civil court for area to which jurisdiction of Family Court extends - Explanation - Suit and proceedings referred to in this sub-section are suits and proceedings of following nature namely - Suit or proceeding between parties to a marriage for a decree of nullity of marriage - Injunction in circumstances arising out of a marital relationship - Suit or proceeding for a declaration as to the legitimacy of any person – Held, Court fee in the proceeding before the lower cour - Without doing so petitioner cannot claim that she filed the proceeding in lower court under explanation of the Act - Jurisdiction by a Magistrate of the First Class under Chapter IX of Cr.P.C - In this case though the petitioner filed MC in the lower court under Explanation (f) to Section 7(1) of the Act it is virtually petition filed under Section 7(2) of the Act - Conclusion is inevitable having regard to the type of proceeding assigned in the petition as MC and court fee paid thereon - This is not a proceeding under Section 7(1) explanation (f) of the Act because the petitioner did not frame petition as a suit under Section 9 of C.P.C and the petitioner did not pay court fee under the relevant provision of Fees and Suits Valuation Act, 1956 - Thus impugned order passed by the lower court is legal and proper - Petitioner’s counsel submitted that he may be permitted to amend the frame of Proceeding in lower court as suit and to pay court fee payable as a suit for maintenance - Petitioner is at liberty to approach lower court with appropriate petition in that regard in which event lower court would pass an order on merits after giving opportunity to the respondents to file counter and after hearing both the parties - In case petitioner is permitted to amend frame of the petition as a suit then lower court may address for transfer of amended proceeding from that court to family court in City Civil Court - Petition is dismissed
1. This revision is filed questioning the impugned order dated 08-06-2010 passed by the Additional Metropolitan Sessions Judge for trial of JHCBBC-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad, in SR No. 1094 of 2010 in MC No.89 of 2010 rejecting the petition filed by sister against brother for temporary injunction restraining the brother from alienating house property mentioned in the schedule by any means. The lower court rejected the application filed by the petitioner/sister in limine on the ground that the petition filed by the petitioner on the ground that MC No. 89 of 2010 filed by the petitioner was one under Section 125 Cr.P.C. and that therefore, provisions of C.P.C will not apply to it.
2. It is contended by the petitioner’s counsel that the order passed by the lower court is erroneous in as much as the petitioner filed the proceeding before the lower court under Section 7(1)(f) of the Family Courts Act, 1984 ( in short, the Act) and not under Section 125 Cr.P.C. For appreciating the contention of the petitioner’s counsel, a reference to Section 7 of the Act becomes relevant and it reads as follows: “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 or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation: - The suit 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 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 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.”
3. Sub-Sections (1) & (2) of Section 7 of the Act deal with jurisdiction of the Family Court. It does not deal with rights and liabilities of the parties before the Family Court. Rights and liabilities of the parties depend on their personal laws well as civil and criminal laws applicable to them. The petitioner filed MC No. 89 of 2010 in the lower court under Section 7(1)(f) of the Act by affixing court fee stamp of Re.1/- on it. The petitioner’s counsel contends that explanation (f) to Section 7(1) of the Act confers jurisdiction on the family court on relationship not only a suit or other proceedings for maintenance and that the petitioner framed the petition in the lower court as the proceeding and not as a suit for maintenance and therefore, the petitioner need not pay court fee as in a suit. When questioned under what provision the proceeding was instituted by the petitioner in the lower court, the
