The main legal point established in the judgment is that the Family Court does not have jurisdiction to entertain applications under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, as the Act specifically provides for adjudication by a Magistrate.

V.K. Shukla, J.

Present writ petition in question has been filed questioning the validity of the decision dated 19.01.2010 wherein orders have been passed on the objection moved on behalf of petitioner that matter should be transferred to the Family Judge as Magistrate has no competence or jurisdiction to try the same.

2. Brief background of the case as is reflected that Smt. Taliya Fatima @ Shama Parveen has filed case No. 2230 of 2008 under Section 3/4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On presentation of the aforesaid case in question objection had been filed on behalf of petitioner contending therein that proceedings before Magistrate were not at all competent and maintainable and matter should be transferred to Family Judge. Said application in question has been considered and rejected. At this juncture present writ petition has been filed.

3. Pleadings inter se parties have been exchanged and thereafter present writ petition has been taken up for final hearing and disposal with the consent of the parties.

4. Sri Vijay Prakash Pandey, Advocate appearing with Bimal Prasad Advocate on behalf of petitioner contended with vehemence that entire proceedings so undertaken before concerned court are altogether void and with jurisdiction by Magistrate and in term of provision as contained under Sections 7,8 and 20 of the Family Courts Act, 1984 it is only the Family Court which is entitled to adjudicate the matter as such usurpation of the jurisdiction by Magistrate is unjustifiable, as such proceedings are liable to be transferred to the Family Judge.

5. Countering the said submission Sri Ashish Kumar Dwivedi, Advocate on the other hand contended that proceedings under Muslim Women (Protection of Rights on Divorce) Act, 1986 are not at all cognizable by Family Judge as they do not fall within the scope and ambit of Sections 7,8 and 20 of the Family Courts Act, 1984, as such writ petition as it has been framed and drawn is liable to be dismissed.

6. In order to appreciate controversy which has been sought to be raised the provision of Sections 7, 8 and 20 of the Family Courts Act, 1984 are being looked into.

"Section 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 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 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 ant parents) of the Criminal Procedure Code, 1973 (2 o