Smt. P. Jayalakshmi & Another v. V. Revichandran & Another

This criminal revision case filed by the wife and the minor child arises out of Cri.M.P. No. 674 of 1989 in M.C. 23/88 on the file of IInd Additional Munsif Magistrate, Tirupati.

2. The first petitioner P. Jayalakshmi was married to the respondent Ravichandran who was working as a postman in Bangalore. The marriage was solemnized on 3-6-1987 at Thirachanoor near Tirupathi. The parents of the first petitioner reside at Tirupathi. The couple resided at Bangalore where the husband was working. Subsequently troubles arose and the wife was sent away. The husband filed a petition under Hindu Marriage Act for restitution of conjugal rights on 3-11-1988 in M.C. No. 573/88 in the Family Court at Bangalore. Subsequently on 19-12-1988 the wife filed a petition in the Magistrates Court at Tirupathi seeking maintenance under section 125, Cr.P.C. in M.C. 23 of 1988. During the pendency of M.C. the first petitioner and her child-minor second petitioner filed Crl.M.P. No. 674/89 seeking interim maintenance during the pendency of maintenance case. The Magistrate allowed the petition and granted interim maintenance at the rate of Rs. 100/- per months for the wife and Rs. 50/- per month for the minor child. The interim maintenance was directed to be paid from the date of the application i.e. 24-4-1989.

3. The husband challenged the Magistrates order by filing Crl.R.P. No. 42/89 on the file of the Sessions Judge, Chittoor. The Sessions Judge by his judgment dated 27-11-1989 allowed the revision petition and set aside the order passed by the Magistrate. The basis for the order passed by the Sessions Judge, is anterior to the filing of the application for maintenance in the Magistrates Court, the Family Court at Bangalore was approached by way of M.C. 573/88 and hence the wife is not entitled to file an application for maintenance in the criminal court when the civil proceedings under the Hindu Marriage Act are pending in the Family Court.

4. The order passed by the Sessions Judge is now under challenge in this revision. Sri R. V. Prasad contends that Family Court exercises jurisdiction for the particular area for which the Court is constituted and hence the jurisdiction of the Magistrates Court at Tirupathi to entertain the application for maintenance under section 125, Cr.P.C. is not excluded. He also contends that the right to seek maintenance under section 125, Cr.P.C. is an independent right and the pendency of O.P. under the Hindu Marriage Act is no bar for the maintainability of the petition under section 125, Cr.P.C. It is true the Courts have held in numerous decisions that the right to seek maintenance under section 125, Cr.P.C. is an independent right and the pendency of the proceedings under Hindu Marriage Act is no bar for its maintainability. If authority is needed for the proposition the decision is D. Chenchaiah v. D. Mangamma, (1968) 2 Andh WR 98 : (1969 Cri LJ 684). The further question that arises in this case is what is the effect of the Family Courts Act of 1984 with regard to the claim of parties in this case. Does the right to claim maintenance under section 125, Cr.P.C. subsist when there is a proceeding pending in the Family Court. Mr. Chandra Sekhara Reddy, appearing for the respondent-husband contends that in this case as the Family Court took cognizance of the proceedings earlier, the latter petition under section 125, Cr.P.C. is not maintainable. The Family Courts Act excludes the jurisdiction of other Courts and that Act has overriding effect notwithstanding anything inconsistent therewith therewith contained in any other law.

5. It is clear from the language of Section 3 of the Family Courts Act that the State Government can constitute Family Courts for a city or town whose population exceeds one million. Judge of the Family Court is appointed by the State Government with the concurrence of the High Court. The jurisdiction is to be determined by notification issued in consultation with the High Court. Section 7 which deals with jurisdiction reads that under sub-section (2) of Section 7, a Family Court shall also have and exercise jurisdiction exercisable by a Magistrate of First Class under Chapter IX (relating to order for maintenance of wife, child and parents) of the Cr.P.C. 1973. Section 8 deals with exclusion of jurisdiction and pending proceedings. A combined reading of Sections 7 and 8 is necessary to understand the controversy involved in these proceedings. Under Section 7 a Family Court will exercise civil jurisdiction and it is deemed to be a District Court or any Subordinate Civil Court and it will exercise jurisdiction in the area to which its jurisdiction extends and deals with all types of matters specified in the explanation to sub-section (1). Under sub-section (2) it would also exercise magesterial powers with regard to matters under Chapter IX of Cr.P.C. regarding maintenance. From the language of Section 7 it is quite clear that the jurisdiction is limited to the area over which it is authorised or notified to exercise jurisdiction as a Family Court.

6. Section 18 lays down that where a Family Court has been established for any area, no District Court or Subordinate Civil Court will have or exercise any jurisdiction in respect of any suit proceedings of the nature referred to in the explanation to sub-section (1) of Section 8. Under Clause (b) the Magistrates in that area will cease to have jurisdiction regarding matters governed by Chapter IX of Cr.P.C. It is significant to remember that the exclusion of jurisdiction is limited to the area for which the Family Court is constituted. The words used are such area. In view of the wording of Section 8 the exclusion of jurisdiction for the civil and criminal Courts is confined to area for which Family Court is constituted and there are no words indicated that the parties to that proceedings are prohibited from approaching any other Court outside the jurisdiction of the Family Court. Section 20 of Family Courts Act indicate that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any law for the time being in force or any instrument having effect by virtue of any law other than this Act.

7. A harmonious interpretation of Sections 3, 7, 8 and 20 clearly indicates that there is no bar against the parties from approaching other Courts outside the jurisdiction of the Family Court. The exclusion of the jurisdiction of the Courts is confined to the area over which the family court exercises jurisdiction. In this view of the matter, the view taken by the Sessions Judge is not correct. Though the proceedings in Family Court were initiated earlier on 3-11-1988 in M.C. No. 573/88 there is no legal bar for the wife and the minor child for instituting proceedings under section 125, Cr.P.C. on 19-12-1988 at Tirupathi where they are residing. Though the wife submitted herself to the jurisdiction of the Family Court by entering appearance and filing counter in M.C. 573/88 still her right to seek independent relief for maintenance under section 125, Cr.P.C. is not taken away.

8. In the result the criminal revision case is allowed. The order of the Sessions Judge dated 27-11-1989 in Crl.R.P. No. 42 of 1989 is set aside and the order of the Magistrate dated 5-9-1988 in Crl.M.P. 674/89 in M.C. 29/89 is restored. As a huge amount becomes due as per the orders of the Magistrate, the respondent-husband is directed to pay a sum of Rs. 1,000/- within one month from this day and pay the balance of arrears in three equal instalments payable in every alternate month commencing from August, 1991. He should continue to pay the interim maintenance for the current period promptly.

Revision allowed.