Prashant Kumar Agarwal, J. - (1.) THE petitioner has preferred this Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 22.02.2014 passed by the Additional District & Sessions Judge No. 8, Jaipur Metropolitan in Criminal Appeal No. 96/2013 whereby the learned appellate Court by dismissing the appeal filed by the petitioner has upheld and affirmed the order dated 21.09.2013 passed by the Metropolitan Magistrate No. 12, Jaipur Metropolitan, Jaipur in Complaint Case No. 21/2011. By its order dated 21.9.2013, the learned trial Court granted visitation rights to the respondent to meet the minor child of the parties. Brief relevant facts for the disposal of this petition are that the petitioner -wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as 'the Act of 2005') for various reliefs against her husband the respondent and his family members. During the pendency of the aforesaid application, the respondent -husband filed an application under Section 21 of the Act of 2005 praying therein that permanent custody of minor child of the parties may be given to him. In the alternative, it was prayed that visitation rights may be granted to him to meet the minor child of the parties. Vide order dated 21.09.2013, the trial Court partly allowed the application filed by the respondent and visitation rights were granted to him in the manner that he will be entitled to meet the child on first three Sundays of every month. Feeling aggrieved with the aforesaid order, the petitioner filed appeal under Section 29 of the Act of 2005, but the same was dismissed by the appellate Court vide order dated 22.2.2014. A petition for grant of decree of divorce was also filed by the respondent under Section 13 of the Hindu Marriage Act and the Family Court, Jaipur with the consent of the parties passed an order on 27.11.2013 regarding visitation right of the respondent to the effect that the petitioner will remain present alongwith the child at "Bharat Centre Samaj" Jaipur on Second Saturday of every month between 1.00 PM to 3.00 PM and the respondent will be entitled to meet the child during that period. Feeling aggrieved with the impugned order dated 22.2.2014, the petitioner is before this Court by way of this Criminal Misc. Petition.
(2.) DURING the course of hearing, learned counsel for the parties agreed that the following legal questions are involved in this petition for decision of Court :- (1) Whether the order dated 21.09.2013 passed by the trial Court as upheld and affirmed by the appellate Court is null and void being without jurisdiction as the trial Court had no jurisdiction to entertain the application under Section 21 of the Act of 2005 and pass the order in view of the fact that the Family Court has already been established at Jaipur under the provisions of the Family Courts Act, 1984 (hereinafter to be referred to as the 'Act of 1984') (2) Whether the order dated 27.11.2013 passed by the Family Court has overriding effect and will prevail over on the order dated 21.09.2013 passed by the trial Court as Family Court has exclusive jurisdiction to pass such order." Inviting attention towards Sections 7, 8 and 20 of the Act of 1984, learned counsel for the petitioner submitted that exclusive jurisdiction has been conferred upon the Family Court established under the provisions of Act in respect of the suits and proceedings referred in the explanation to Section 7 of the Act including a suit or proceeding in relation to the guardianship of a person or the custody of or access to any minor and as it is an admitted fact that Family Court was established at Jaipur well before the Act of 2005 came into force, the Magistrate had no jurisdiction to pass an order regarding visitation rights in favour of the respondent under Section 21 of the Act of 2005 and even the application filed by the respondent was not maintainable. It was further submitted that the order dated 21.9.2013 as upheld and affirmed by the appellate Court being without jurisdiction is null and void and the order dated 27.11.2013 passed by the Family Court has overriding effect upon it more particularly in view of the fact that Family Court have all the jurisdiction exercisable by a District Court in relation to the guardianship of a person or the custody of, or access to, any minor. It was also submitted that although the Act of 2005 has been enacted subsequent to the Act of 1984 and Section 21 of the Act 2005 also have non -obstante clause but Section 20 of the Act of 1984 in very clear terms provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and therefore, when an order for visitation rights has been passed by the Family Court, it would have overriding effect on and prevail over the order dated 21.9.2013 passed by the Magistrate under Section 21 of the Act of 2005.
(3.) IN support of his submissions, learned counsel for the petitioner relied upon the case of Shabana Bano v. Imran Khan : 2009 (7) Supreme 652 and Durga Lal Meena v. Vimla Devi Meena.;