- (1.) S. K. Phaujdar, J. This is an applica tion under Section 19 (4) of the Family Courts Act, 1984, challenging the order of the Principal Judge, Family Court, Kanpur Nagar, in Case No. 1173 of 1988 under Sec tion 125, Cr. P. C. The application before the Court below was filed by the present revisionist claiming maintenance from the revisionist describing him as her husband. The application was allowed and the present revisionist was directed to pay a monthly allowance of Rs. 5,00/- to Smt. Jayanti Devi as maintenance.
(2.) WHEN the learned counsel for the applicant was heard on 29. 8. 1996 an order was passed to admit the matter subject to the decision on the point if the present revision would be treated as a civil revision or a criminal revision. Upon admission, there was also a stay order recorded direct ing stay of the operation of the impugned order. After the orders dated 29. 8. 1996 were recorded, a case law came to my notice which is relevant on the point in issue as indicated in the order dated 29. 8. 1996. In this case between Munna Lal and others v. State of U. P. A. I. R. 1991 Alld. 189 a Division Bench of this Court was hearing a matter on a reference from a Hon'ble Single Judge if Section 24 CPC would apply to family Courts constituted under the Family Courts Act. Before the Court Crl. Misc. (Transfer) Application No. 77 of 1989 was filed under Section 24, CPC for transferring a case under Section 127, Cr. P. C. from one Family Court to another. There was another trans fer application before the court under Sec tion 24, CPC in connection with an applica tion under Section 3 of the Muslim Women (Protection of Rights on Divorce), 1981. A question arose in these matters whether the High Court could transfer a case from one family Court to another family Court. In giving its judgment upon this reference the Division Bench had discussed, in paragraph 4 of the judgment, the true interpretation of Section 10 of the Family Courts Act. In Paragraph 5 of the judgment, the Court was of the view that the family Court was sub stitute of a civil Court in respect of matters referred in the explanation to sub-section (1) of Section 7 and when exercising powers under Chapter 9 of the Cr. P. C. the family Court is the substitute of a Magistrate 1st Class. It was further observed in paragraph 6 of this judgment that when a family Court is exercising powers and jurisdiction under Chapter 9 of the Cr. P. C. , it is a criminal Court equal to the Magistrate 1st Class and the High Court will have the powers to transfer the case from the family Court to another under Section 407, Cr. P. C. Accord ingly, a direction was given in paragraph 15 of the judgment. The learned counsel for the revisionist submitted before me another case-law of the Allahabad High Court, also by a Division Bench, in the case of Raj Kishore Misra v. Meera Misra AIR 1995 Alld 70. It was a case under the Hindu Adoption and Maintenance Act and an appeal was entertained by the High Court under Sec tion 19. This case- law, however, does not answer, in any paragraph, the present ques tion regarding jurisdiction. It was contended by the learned counsel that Section 6 of the Cr. P. C. states what are the different criminal Courts and the family Court is not included therein. It was contended that the family Court was created by a Special Act (Act No. 66 of 1984) and it cannot be the Court of a Magistrate, although by incorporation it was given the powers of a Magistrate. It was further con tended that the Family Courts Act, in Sec tion 7 (1) (b), declares that the family Court shall be treated to be a district Court or a subordinate civil Court in exercising juris diction under Section 7 (1 ). It was contended that no such declaration is there in the Family Courts Act declaring it to be a criminal Court while exercising powers of a Magistrate under Chapter 9, Cr. P. C. A very reading of Section 7 indicates that the family Court has been empowered to take cog nisance of the matters enlisted therein which otherwise would have been exercised by the civil Courts and for this purpose only the family Court would be a civil Court. So far the petitions under Chapter 9 of the Cr. P. C. are concerned, the family Court shall exercise jurisdiction exercisable by a Magistrate of the First Class. Sub-section 2) of Section 7 does not say that the family Court would be a civil Court for the purpose of exercise of this jurisdiction also.
(3.) SECTION 19 (4) of the Family Courts Act gives a right of revision to a party aggrieved by an order under SECTION 125, Cr. P. C. This right cannot be denied to the present revisionist. Under the High Court Rules, however, the Chief Justice is authorised to distribute files to the different judges sitting singly or in Division Bench and the judges are to take up case of such determination only which will come to them from time to time. Some judges are given the determination to take up the civil revisions while some other judges are authorised to take up the criminal revisions and, accordingly, it is necessary that a par ticular application is to be indicated either as a civil revision or a criminal revision. Section 7 of the Family Courts Act has already been discussed above. Section 18 of this Act is also relevant for considera tion of the present point. It says that a decree or an order (other than an under Chapter 9 of the Cr. P. C.) passed by a family Court shall have the same force and effect as a decree or order of a civil Court. Such decree or order is open to execution in the same manner as prescribed in the CPC. Sec tion 18 also provides that an order of a family Court under Chapter 9 of the Cr. P. C. is to be executed in the manner prescribed for execution of such order of the Cr. P. C. itself. Section 19 makes an order of a family Court appealable but an order made under Chapter 9, Cr. P. C. is kept out of the scope of appeal. For such orders, a revision has been provided for. In all these Sections a clear distinction has been made between a decree or order recorded in a proceeding cog nisable under Section 7 (1) of the Family Courts Acts vis-a-vis a proceeding under Chapter 9 of the Cr. P. C. This only suggests that although the power of both criminal Courts and civil Courts were given to the family Court, the legislature desired that for civil1 matters the family Court should be regarded as a civil Court and for a criminal matter it should be regarded as a criminal Court. Although the Allahabad High Court in the case reported in AIR 1991 Alld 189 (supra) was not confronted with the present question, it was made clear that the family Court exercising jurisdiction under Chapter 9 of the Cr. P. C. was to be treated as a criminal Court. It must be held, therefore, that the order in question was passed by criminal Court and the revision con templated under Section 19 (4) of the Family Courts act must be given a nomenclature of a criminal revision.;