- (1.) THE question which has been raised in this application is as to whether the Family Court exercising jurisdiction under section 7(2)(a) of the Family Courts Act being a criminal court does have power to entertain application for amendment filed in a proceeding under section 125 of the Code of Criminal Procedure ?
(2.) THE facts giving rise this application are that the respondent no.2 filed an application under section 125 of the Code of Criminal Procedure claiming maintenance from the petitioner on the ground that she married to this petitioner on 20.10.2003 before Tollyganj Marriage Officer, Kolkata under section 8(1) of the Hindu Marriage Act, 1955 but she is being not maintained by him. Upon the said petition, a case was registered as Maintenance Case No.142 of 2007 which initially proceeded ex -parte but subsequently, after appearance of the respondent no.2, the order of ex - parte hearing was recalled. Thereafter the petitioner filed his reply denying the applicant as his legally married wife. The matter was taken up for evidence whereby three witnesses were examined, who testified that the marriage was performed before the Tollyganj Marriage Officer, Kolkata. Thereafter an application for amendment was filed on behalf of respondent no.2 whereby she sought to incorporate the fact that she had married to this petitioner on 16.8.2003 in Kali Temple at Tollyganj, Kolkata and then the marriage was registered on 20.10.2003 before the Marriage Registrar, Agarpara, Kolkata. Objection was taken on behalf of the petitioner on the petition of the amendment by stating that in terms of section 10(2) of the Family Courts Act read with Rule 4(c) of the Family Courts (Jharkhand High Court) Rules, 2004, the Family Court dealing with the matter of maintenance acts as criminal court where the provision of Code of Criminal Procedure would apply and therefore, there has been absolutely no scope for the Family Court to entertain the matter relating to amendment of the petition.
(3.) HOWEVER , the trial court, vide its order dated 5.1.2009, which is under challenge, allowed the amendment petition sought for on behalf of the petitioner on the ground that the proceeding under Chapter IX of the Code of Criminal Procedure is quasi civil in nature and that the court would be in a better position to do in complete justice by having better particulars of facts incorporated in the amendment petition.;