Bhumika W/O. Sachin Bagade And Anr vs Sachin S/O. Vishwanath Bagade
2017 Latest Caselaw 6976 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                       BENCH AT AURANGABAD.

            CRIMINAL REVISION APPLICATION NO.91 OF 2017 


1.        Bhumika w/o. Sachin Bagade
          Age : 32 Years, Occu : Household, 
          R/o. At Present Plot No.2, Padmapani 
          Colony, Aurangabad 

 2.       Ku. Anika d/o. Sachin Bagade
          Age : 3 years, Occu : Nil, 
          R/o. As above. 
          Being minor through her 
          Natural Guardian mother i.e. 
          Applicant No.1 above.                                                  .. Applicants 
                                                                                (Orig. Applicants)

                     VERSUS 

 Sachin s/o Vishwanath Bagade 
 Age : 40 years, Occu : Service, 
 R/o. At Present New Pahadsingpura, 
 Behind Biwi Ka Makbara, 
 Dist. Aurangabad                                                                  .. Respondent 
                                                                                  (Orig. Respondent) 
                                                     ...

          Advocate for the applicants                         :         Shri. A.M. Gholap 
          Advocate for the respondent                         :         Shri. Gopal P. Pande & 
                                                                        Shri. A.G. Kulkarni 
                                                       ....

                                                              CORAM : P.R. BORA, J.

                                                              Reserved on    :     01.09.2017
                                                              Pronounced on  :     11.09.2017 

JUDGMENT :-

1. Heard the learned Counsel appearing for the parties.

2. "In the proceeding under Section 125 of the Code of

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Criminal Procedure, whether Family Court can pass an order giving

access to the minor for whom the maintenance is sought" is the small

but important question raised in the present criminal revision

application.

3. Application under Section 125 of the Code of Criminal

Procedure (for short 'Code') filed by the present applicants is pending

before the Principal Judge of Family Court at Aurangabad. In the said

application, the present respondent filed an application at Exh.34

with a prayer that, he be given access to his minor daughter for

whom the maintenance is sought. The application so filed was

opposed by applicant no.1. Applicant no.1 endorsed her say overleaf

the said application contending therein that, the application itself was

not maintainable and the prayer as was made by respondent cannot

be granted by the Court in the proceedings under Section 125 of the

Code. The learned Principal Judge of the Family Court after having

considered the submissions made on behalf of the parties, has

allowed the said application and has thereby provided access to his

minor daughter to the respondent on every 1st, 3rd & 5th Saturday of

every month in the Family Court, Children Room from 03:00 to 06:00

p.m. The Family Court has further directed applicant no.1 to send

her daughter along with any family member to the Children Room as

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directed by the Court.

4. Shri Gholap, learned Counsel appearing for the

applicants submitted that, the Family Court does not have any

inherent jurisdiction to pass such an interim order in the proceedings

under Section 125 of the Code. The learned Counsel further

submitted that, the Family Court though has been invested with

jurisdiction in the matters arising out of the matrimonial relations,

the said jurisdiction can only be invoked in the appropriate

proceedings. The learned Counsel further submitted that, the

impugned order passed by the Family Court has given rise to an

apprehension in the mind of applicant no.1 that, if she does not

follow the said order, it will have an adverse effect on the merits of

her application for maintenance. The learned Counsel further

submitted that, interim orders can only be passed consonant to the

final relief claimed in the main application. The learned Counsel

submitted that, the main relief sought in the application is grant of

maintenance by the respondent and interim order passed by the

Court giving access to his minor daughter to the respondent cannot

be in any way said to be having nexus with final relief claimed in the

application. The learned Counsel further submitted that, even

otherwise on the facts also the respondent was not deserving any

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such order in his favour for the reason that, he had never shown any

care or concern of his minor daughter in the past. The learned

Counsel, therefore, prayed for setting aside the impugned order.

5. The learned Counsel appearing for the respondent,

initially though supported the impugned order stating that, no

prejudice was likely to be caused to applicant no.1 because of the said

order, eventually conceded that, the impugned order probably may

not be permissible in the proceeding under section 125 of the Code.

6. I have carefully perused the impugned order. The

learned Family Judge, though, has accepted that, the reliefs of

custody and access are not provided under the provisions of section

125 of the Code, has eventually provided the access to the respondent

to his minor daughter observing that, access is like interim relief and

was liable to be allowed alike interim maintenance.

7. The observations made as aforesaid and the relief as has

been granted by the Family Court vide the impugned order, if

considered in light of the provisions of the Code and The Family

Courts Act, 1984 (hereinafter referred to as the 'Act of 1984') appears

unsustainable. In the impugned order, the learned Principal Judge of

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the Family Court has lauded the object of the Act. The learned Judge

has observed that, the Family Courts are established for the smooth

resolution of matrimonial disputes and the Judge of the Family Court

is cast with the duty to first see that, the disputes are amicably

resolved. From the discussion made by the learned Judge, it appears

that, providing access to the minor daughter to the father was an

attempt towards the amicable resolution of the dispute between the

mother and the father of the said child.

8. The view taken by the learned Judge though appears

innovative, the question remains 'whether such an order can be held

to be legal and sustainable and whether the Family Court can pass

such order in the proceeding under Section 125 of the Code'. The

answer is of course 'No'. The impugned order cannot be sustained for

plural reasons. Section 7 of the Act of 1984 prescribes the

jurisdiction of the Family Court. Explanation to said Section 7 enlists

the matters that may fall within the jurisdiction of the Family Court.

I deem it appropriate to reproduce entire said Section, which reads

thus :

"7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court

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under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation.- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for

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maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment."

9. Reading of the aforesaid section reveals that, under

Section 7(1) read with clause (g) of the explanation, a suit or

proceeding in relation to the access to any minor can be filed before

the Family Court having territorial jurisdiction. Referring to the

aforesaid provision, it was sought to be canvassed by the learned

Counsel appearing for the respondent that, it was within the

jurisdiction of the Family Court to pass the impugned order. The

arguments so raised however is fallacious and cannot be accepted.

10. Sub-section (2) of section 7 provides that, subject to the

other provisions of this Act, a Family Court shall also have and

exercise - (a) the jurisdiction exercisable by the Magistrate of the

First Class under Chapter IX (relating to order for maintenance of

wife, children and parents) of the Code of Criminal Procedure, 1973.

Admittedly, the applicants have filed the application before the

Family Court under Section 125 of the Code. It is thus evident that,

the said application is being dealt with and adjudicated by the Family

Court exercising the powers vested in it by virtue of sub -clause (2) of

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section 7 of the Act. While adjudicating the said application, the

jurisdiction that would be exercised by the Family Court would be

that of the Judicial Magistrate, First Class. It has to be therefore seen

'whether the Judicial Magistrate First Class can pass any such order,

may be by way of interim relief, in a proceeding under section 125 of

the Code, thereby granting access to the minor child to the father of

the said child, against whom, the maintenance application is filed.

The answer is obviously 'No'. The Judicial Magistrate, First Class does

not possess any such power or authority under the Code to pass any

such order even by way of interim arrangement. The learned

Principal Judge of the Family Court, therefore, could not have passed

the impugned order when it was exercising the jurisdiction

exercisable by a Judicial Magistrate, First Class under Chapter IX of

the Code. The impugned order, therefore, cannot be sustained. It is

accordingly set aside. It would, however, be open for the respondent

to avail the appropriate remedy for seeking access to his minor

daughter. Criminal Revision application, thus, stands allowed.

11. Pending criminal application, if any, stands disposed of.

( P.R. BORA, J )

ggp