IMPORTANT POINT
Order passed by Family Court u/s 125 CrPC is not appealable.

M.R. Shah, J.—Feeling aggrieved and dissatisfied with the impugned order passed by the learned Family Court No.2, Ahmedabad passed in Criminal Miscellaneous Application No.710/15 so far as awarding the maintenance under section 125 of the Criminal Procedure Code @ Rs.18, 000/- per month with effect from 23.03.2015, the original opponent husband has preferred the present first appeal purported to be under section 19 (1) of the Family Courts Act.

2. A preliminary objection is raised by Shri F.B. Brahmbhatt, learned Advocate appearing on behalf of the respondent with respect to the maintainability of the present first appeal before this Court, under section 19 of the Family Courts Act.

3. Shri Bhrahmbhaat learned Advocate appearing on behalf of the respondent has vehemently submitted that, as per sub-section (2) of Section 19 of the Family Courts Act, no appeal shall lie against an order passed under Chapter IX of the Criminal Procedure Code, 1973. He has submitted that, the order under section 125 of the Criminal Procedure Code, would be order Chapter IX of the Cr.P.C. and therefore, considering the bar under sub-section (2) of the Section 19, the First Appeal under section 19 of the Family Courts Act before this Court shall not be maintainable. He has submitted that therefore, the remedy available to the appellant would be to prefer Revision Application as provided under sub section (4) of Section 19 of the Family Courts Act.

4. Per contra, Shri Bukhari, learned Advocate appearing on behalf of the appellant has submitted that, the impugned order is passed by the learned Family Court and therefore, considering the sub-section (1) of Section 19 of the Family Courts Act, against any order passed by the learned Family Court, appeal under section 19 of the Family Courts Act would be maintainable before this Court.

5. To the aforesaid, Shri Brahmbhatt learned Advocate appearing on behalf of the respondent has submitted that, while passing the order under section 125 of the Cr.P.C. and awarding the maintenance under section 125 of the Cr.P.C., as per sub-section (2) of Section 7 of the Family Courts Act, the Family Court would be exercising the jurisdiction exercisable by the Magistrate of the Fist Class under Chapter IX of the Code of Criminal Procedure. It is submitted that, therefore, wherever the learned Family Court is awarding the maintenance under section 125 of the Cr.P.C. which would be under Chapter IX of the Code of Criminal Procedure, it can be said that, the learned Family Court exercised the power of the Magistrate of the First Class. It is submitted that, therefore, the order passed by the learned Family Court awarding the maintenance under section 125 of the Cr.P.C. can be said to be an order under Chapter IX of the Cr.P.C. and therefore, considering the bar of sub-section (2), the present appeal would not be maintainable.

6. Heard the learned Advocates appearing for the respective parties. As observed above, a preliminary objection is raised with respect to the maintainability of the present First Appeal under section 19 of The Family Courts Act, against the impugned order passed by the learned Family Court awarding the maintenance under section 125 of the Cr.P.C.

7. At the outset, it is required to be noted that, any order awarding the maintenance under section 125 of the Cr.P.C., can be said to be an order under Chapter IX of the Cr.P.C. Considering sub-section (2) of section 7 of the Family Courts Act, whenever the Family Court is having jurisdiction, the Family Court shall also have jurisdiction exercisable by the Magistrate of First Class Chapter IX of the Code of Civil Procedure. Under the circumstances, whenever the learned Family Court passes order awarding maintenance under section 125 of the Cr.P.C. which would be under Chapter IX of the Cr.P.C., the said order can be said to be an order under Chapter IX of the Cr.P.C. and therefore, considering the bar under sub-section (2) of Section 19 of F