[Cites 14, Cited by 0]
Bombay High Court
Javed Khan S/O. Jabbar Khan vs Noorulhuda W/O. Javed Khan And Another on 1 April, 2026
2026:BHC-NAG:5182
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 72 OF 2017
1. Noorulhuda w/o Javed Khan,
Aged about 27 years, APPLICANTS
Occupation : nil
2. Hunena Tabassum d/o Javed Khan
Age 3 years, Minor,
Through her natural guardian
mother, applicant No.1
Both are R/o C/o Rukhsana Begum
Jameer Beg Miurza, Muzaffar
Nagar, Akola, Tq. and Dist. Akola
// V E R S U S //
1. Javed Khan s/o Jabbar Khan,
Age 34 years, Occpn. Service, NON-APPLICANT
R/o Badarpura, Mangrulpir,
Tq. Mangrulpir, Dist. Washim
---------------------------------------------------------------------------------------
Mr. Parth Sagdeo, Advocate for the applicants.
Mr. J.R. Kidilay, Advocate for the non-applicant.
-------------------------------------------------------------------------------------
WITH
CRIMINAL APPLICATION (APL) NO. 73 OF 2017
1. Javed Khan s/o Jabbar Khan APPLICANT
Aged about 32 years,
Occupation : Service,
R/o Badarpura, Mangrulpir,
Tah. Mangrulpir, Distt. Washim
// V E R S U S //
1. Noorulhuda w/o Javed Khan,
Aged about 26 years, Occu. Nil NON-APPLICANTS
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2
2. Hunena Tabassum D/o Javed Khan,
Aged about 2 years, minor through
Guardian mother, respondent No.1
Both R/o Rukhsana Begam Jameer
Beg Mirza, Muzaffar Nagar, Akola
Tah. & Distt. Akola
-------------------------------------------------------------------------------------------
Mr. J.R. Kidilay, Advocate for the applicant.
Mr. Parth Sagdeo, Advocate for the non-applicants.
-----------------------------------------------------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
JUDGMENT RESERVED ON:_18/03/2026
JUDGEMENT PRONOUNCED ON:-1/04/2026
JUDGMENT :
1. In both these Revisions a challenge is raised to the
judgment and order of grant of maintenance passed by Family
Court in petition No.E-142/2014 dated 21.12.2015 by which the
original non-applicant was directed to pay Rs.7,000/- per month
to the applicant No.1 and Rs.3,000/- per month to the applicant
No.2 in Criminal Revision No.72/2017 towards their maintenance
from the date of filing of the petition i.e. 29.12.2014.
2. Criminal Revision Application No.72/2017 filed by
wife original applicant for enhancement of maintenance amount
whereas Criminal Revision Application No.73/2017 is filed by the
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husband for setting aside and quashing of the order of
maintenance. The parties are hereinafter referred as per their
original nomenclature.
3. The applicant No.1 is the legally wedded wife of non-
applicant as their marriage was performed on 25.12.2011 at
Mahan, Tq. Barshitakli, District Akola. After marriage she resumed
the cohabitation. As per her contention initially for some days she
was treated well and thereafter she was subjected for the mental
harassment without any reason. On the instigation of family
members non-applicant started demanding her an amount of Rs.5
lakhs to enable him to give donation for obtaining a permanent
job as a teacher. Applicant No.1, however, expressed her inability
to fulfil the said demand and therefore, he started physically and
mentally harassing the applicant No.1 for the fulfilment of said
demand.
4. On 01.05.2013 again non-applicant demanded the
amount from her and on showing her inability, he assaulted her
mercilessly and driven out of the house. She immediately lodged
a report regarding the said incident to the police station.
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However, the said report was forwarded to the Women Cell on
17.07.2013. Before the Women Cell, a settlement between the
parties took place on the same day and non-applicant brought her
to the house of his sister at Mahan. Thereafter they started
residing at Mahan and non-applicant took a place on rent in the
house of Dr. Aziz Khan and started residing there along with the
applicant No.1. However, the family members of the non-applicant
continued visiting him at his house and used to instigate and on
their instigation, the non-applicant started ill treating her. In the
meantime, she delivered a baby girl and all the expenses of her
delivery were borne by her father. After the birth of the child also
there was no change in the behavior of the present non-applicant
and therefore, she constrained to leave the matrimonial house.
Thereafter, she preferred an application for grant of maintenance.
5. The said application is strongly opposed by the non-
applicant on the ground that it was the applicant who was not
ready to cohabit with him in the matrimonial house and was in
habit of leaving matrimonial house without any reasons. Prior to
the marriage, the non- applicant started serving as a teacher and it
was his permanent job. As the applicant has lodged a false report
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against him he was called at Women Cell wherein there was
settlement between both of them and as per the desire of the
applicant, he started residing at Mahan. However, her behaviour
at Mahan was also not proper and therefore, he left her and again
came and stayed at Barshitakli along with his family. It is further
alleged by him that applicant filed an application in the Court of
Judicial Magistrate, First Class Barshitakli under the provisions of
Protection of Women From Domestic Violence Act, 2005. However,
her application for interim maintenance was rejected. Thereafter,
she filed an application for grant of maintenance in Family Court
at Akola though she is residing at Mahan. The Family Court Akola
has no jurisdiction to try and decide the application as there is no
material evidence to show that the applicant is having any
temporary residence at Akola. Only to harass the present non-
applicant she filed an application before Family Court Akola. It is
contended that in the application filed under the provisions of
Protection of Women From Domestic Violence Act, a transfer
application filed by her before this Court shows her address at
Mahan. She has filed an application for transfer of the proceeding
which is filed by the non-applicant for restitution of conjugal
rights from Mangrulpir to Mahan. However, as soon as her
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application for interim maintenance is rejected by the Judicial
Magistrate First Class, Mahan she preferred this application under
Section 125 of Cr.P.C. for grant of maintenance before the Family
Court showing her temporary residence at Akola. The Family
Court Akola has no jurisdiction at all to entertain the application
on that ground itself, the order of Family Court deserves to be
quashed and set aside.
6. Heard learned counsel for the parties. A substantial
question of law which arises for consideration is whether
judgment and order passed by the Family Court is nullity on
account of exclusion of jurisdiction in matrimonial matters in view
of Section 7 of the Family Court Act.
7. There is no factual disputes as to the relationship
between the applicant and non-applicant. The pleadings in the
application filed by the applicant in D.V. proceedings as well as in
transfer application, which was filed before this Court shows that
after the dispute arose between her and her husband she started
residing at Mahan which is her parents place. While filing an
application in the Family Court she shows that she is residing
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along with her aunt Ruksana Begam Jamir Beg Mirza. But except
the bare statement that she is residing along with her aunt there is
absolutely no document produced on record to show that
temporarily she is residing along with her aunt. During evidence
neither she has examined her aunt nor she has mentioned when
she came to reside at the house of her aunt and for what reasons.
It is not disputed that the residence of her parents is at Mahan,
Tq. Barshitakli. Her marriage was performed at Mahan,
Barshitakli. Her matrimonial home was Badarpura, Mangrulpir
Dist. Washim and she lastly resided with non-applicant at Mahan,
Taluka Barshitakli.
8. Sections 7 and 8 of the Family Courts Act read as
under:-
Section 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 under any law
for the time being in force in respect of suits and proceedings of
the nature referred to in the Explanation; and
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(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
circumstance arising out of a marital relationship;
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(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 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.
8. Exclusion of jurisdiction and pending proceedings.
--Where a Family Court has been established for any
area,--
(a) no district Court or any subordinate civil Court
referred to in sub-section (1) of section 7 shall, in relation to such
area, have or exercise any jurisdiction in respect of any suit or
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proceeding of the nature referred to in the Explanation to that
sub-section;
(b) no Magistrate shall, in relation to such area, have
or exercise any jurisdiction or powers under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to
in the Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974),--
(i) which is pending immediately before the
establishment of such Family Court before any district Court or
subordinate Court referred to in that sub-section or, as the case
may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted
or taken before or by such Family Court if, before the date on
which such suit or proceeding was instituted or taken, this Act had
come into force and such Family Court had been established, shall
stand transferred to such Family Court on the date on which it is
established.
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9. The Family Courts Act, 1984 was enacted to provide
for the establishment of Family Courts "with a view to promote
conciliation in, and secure speedy settlement of, disputes relating
to marriage and family affairs and for matters connected
therewith," as indicated in the preamble of the Act. A separate
forum known as Family Court, with facilities for expert advice on
matrimonial matters from marriage counsellors, and with
emphasis on the conciliatory process more than adjudicatory
process, was set up under this Act.
10. Section 7 of the Family Courts Act states that the
Family Court shall have jurisdiction of district Court or any
subordinate civil Court under any law for the time being in force
in respect of suits and proceedings of the nature referred to in sub-
clause (a) to (g). Clause (f) of Section 7 deals with suit or
proceeding for maintenance.
11. Thus, in view of the establishment of the Family
Court, the Family Court, had jurisdiction to entertain the suit or
proceeding of nature within the municipal limits of the said
district and therefore, Civil Judge, Senior Division in the said
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district has no jurisdiction to conduct the petition for grant of
maintenance.
12. If the establishment of Family Court and vesting of
exclusive jurisdiction with the Family Court is treated at par with
the territorial jurisdiction, then whether the applicant who is
residing beyond jurisdiction of the Family Court files an
application at the Family Court and the Family Court decide the
said application would be a nullity.
13. Learned counsel for the applicants placed reliance on
the judgment of MST Jagir Kaur and another vs. Jaswant Singh
reported in 1963 SCC OnLine SC 137 wherein the Hon'ble Apex
Court while considering the issue whether the Magistrate of
Ludhiana had jurisdiction to entertain the petition filed under
Section 488 of the Code of Criminal Procedure. The question turns
upon the interpretation of the relevant provisions of Section
488(8) of the Code, which demarcates, the jurisdictional limits of
a Court to entertain a petition under the said Section. Section
488(8) of the Code reads:-
"Proceedings under this Section may be taken against
any person in any district where he resides or is, or
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where he last resided with his wife, or, as the case
may be, the mother of the illegitimate child."
14. The Hon'ble Apex Court has interpreted the crucial
words of the sub-section and observed that the crucial words of
sub-section "are", "resides", "is" and "where he lastly resided with
his wife". Under the Code of 1882, the Magistrate of the-District
where the husband or father, as the case may be, resided only had
jurisdiction. Now the jurisdiction is wider. It gives three alternative
forums. This, in our view, has been designedly done by the
Legislature to enable a discarded wife or a helpless child to get the
much needed and urgent relief in one or other of the three
forums, convenient to them. The proceedings under this Section
are in the nature of civil proceedings; the remedy is a summary
one and the person seeking that remedy, as we have pointed out,
is ordinarily a helpless person. So the words should be liberally
construed without doing any violence to the language.
15. It is further observed that the first word is "resides". A
wife can file a petition against her husband for maintenance in a
Court in the District where he resides,. The said word has been
subject to conflicting judicial opinion. In the Oxford Dictionary it
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is defined as dwell permanently or for a considerable time; to
have one's settled or usual abode; to live in or at a particular
place". The said meaning, therefore, takes in both a permanent
dwelling as well as a temporary living in a place. It is, therefore,
capable of different meanings, including domicile in the strictest
and the most technical sense and a temporary residence.
Whichever meaning is given to it, one thing is obvious and it is
that it does not include a casual stay in, or a flying visit to a
particular place. In short, the meaning of the word would, in the
ultimate analysis, depend upon the context and the purpose of a
particular statute. In this case, the context and purpose of the
present statute certainly do not compel the importation of the
concept of domicile in its technical sense. The purpose of the
statute would be better served if the word "resides" was
understood to include temporary residence.
16. In the light of the above interpretation if the facts of
the present case are taken into consideration admittedly, previous
applications filed by the applicant shows that she was residing at
Mahan, Taluka Barshitakli in Cri. M.A.No.10/2014 in Criminal
Appeal No.133/2014 which challenges the order of Magistrate
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rejecting the application for interim maintenance also shows her
address as Mahan. It is pertinent to note that said application was
rejected on 16.12.2014 and on the same day, the applicant
preferred an application before Family Court showing her address
at Akola with her aunt. Admittedly, in support of her contention
neither she has filed any document nor she has filed any affidavit
of her aunt showing that she is residing along with her aunt.
17. Section 8 is very specific which lays down that, where
a family court is established in any area, no district Court or any
subordinate civil Court referred to in sub-section (1) of section 7
shall, in relation to such area, have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred to in the
explanation. Similarly, the jurisdiction of the Magistrate court is
also ousted by the sub-clause (b).
18. In Maria Seria Pinto vs. Milton Dias reported in
MANU/MH/0005/2001 the Division Bench of this Court relying
on Full Bench judgment in Romila Jaidev Shroff vs. Jaidev
Rajnikant Shroff reported in 2000 (3) Mh.L). 468 held that,
Section 20 of the Family Courts Act has an overriding effect and
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overrides anything inconsistent therewith contained in any other
law for the time being in force or in any Instrument having effect
by virtue of any law other than the said Act. It is further held that,
in the view of the Full Bench after coming into force of the Family
Courts Act, 1984 and establishment of the Family Court for
Mumbai Area, a High Court would completely lose its Jurisdiction
by virtue of the provisions of sections 7 and 8 read with section 20
of the Family Courts Act, 1984 and that, by virtue of clause (c) of
sub-section (1) of section 8, all the matrimonial matters pending
before the High Court on the Original Side shall stand transferred
to the Family Court for hearing and disposal in accordance with
the provisions of the said Act.
19. In Vimalashram Gharkul of Amprapali Utkarsha
Sangh, Nagpur vs. Jyto Banson Joseph reported in 2006 (4)
Mh.L.J. 692, it was held that, it is, therefore, evident that after the
Family Courts Act, came into force, the proceedings in relation to
the guardianship of a person or custody of, or access to, of a minor
are required to be instituted in the Family Court in view of section
7 of the said Act since it has a jurisdiction to decide those
proceedings and also can exercise jurisdiction exercisable by the
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District Court and therefore, by necessary implication the
application filed by the non-applicant under section 25 of the
Guardians and Wards Act, 1890, for custody of minor, is not
maintainable.
20. In Dawalsab vs. Khajasab reported in 2009 (14) SCC 660
the maintenance petition under Section 125 was filed in the
Family Court at Bijapur, The Judge of the Family Court held that,
the respondent was residing at Syndagi where there is a court of
Judicial Magistrate and it will have the jurisdiction. The said
judgment was confirmed by the High Court. While discussing the
provisions of Sections 7 & 8 of the Family Courts Act, the Apex
Court held that, in the instant case, it is the Family Court which
has jurisdiction to entertain the petition filed by the appellant
since the Family Court at Bijapur had jurisdiction throughout the
district and jurisdiction of the Magistrate under Chapter IX of
Cr.P.C. has been excluded.
21. The specific ouster of jurisdiction of the Courts in
respect of area for which the Family Court has been established
under Section 8 shows that, the subject-wise jurisdiction of Civil
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Judge, Senior Division, has been ousted and it is not a simple
question of territorial jurisdiction.
22. In the light of above facts admittedly, the present
applicants was residing at Mahan, Taluka Barshitakli i.e. beyond
the jurisdiction of Family Court.
23. In view of Section 3 of the Family Courts Act which
reads as under:-
Establishment of Family Courts.--(1) For the purpose
of exercising the jurisdiction and powers conferred on a Family
Court by this Act, the State Government, after consultation with
the High Court, and by notification,--
(a) shall, as soon as may be after the commencement
of this Act, establish for every area in the State comprising of city
or town whose population exceeds one million, a Family Court;
(b) may establish Family Courts for such other areas
in the State as it may deem necessary.
(2) The State Government shall, after consultation
with the High Court, specify, by notification, the local limits of the
area to which the jurisdiction of a Family Court shall extend and
may, at any time, increase, reduce or alter such limits.
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24. A harmonious interpretation of Sections, 3, 7, 8 and
Section 20 clearly indicates that exclusion of the jurisdiction of the
Court is confined to the area over which the Family Court
exercises jurisdiction. Admittedly, the Family Court Akola exercises
the jurisdiction to the area covered which is municipal area of
Akola District. Admittedly, the applicant was residing at Mahan,
Taluka Barshitakli where the Civil Judge Junior Division and
Judicial Magistrate First Class is having jurisdiction to entertain
the application and decide the same. All Civil Judges, Senior
Division within the City of that District should see where in city
there is a Family Court, Family Court should see whether the cause
of action for matrimonial petitions filed before them arises within
the area for which Family Court has been established or not. If it is
established that cause of action arose beyond the jurisdiction the
Family Court should return the plaint and should avoid
unnecessary waste of time, money and energy of litigants. As the
interpretation of Sections 3,7, 8 and 20 clearly shows that the
jurisdiction of the Court i.e. Family Court is confined to the area
over which Family Court exercises jurisdiction. Therefore, as the
cause of action has not arose within the jurisdiction of the Family
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Court, Akola, the parties are not residing within the jurisdiction of
Family Court Akola, temporary residence shown by the applicant
is not established by her prima-facie. The revision application
No.73/2017 deserves to be allowed.
25. Hence, I proceed to pass the following order:-
ORDER
(i) The Criminal Revision Application No. 73/2017 is
allowed.
(ii) The judgment and order passed by Family Court, Akola
dated 21.12.2015 passed by Family Court Akola in Petition
No.E-142/2014 for granting maintenance @ Rs. 7,000/- and
Rs.3,000/- is hereby quashed and set aside as decision
rendered by the Family Court is without jurisdiction and
remanded back to the Family Court.
(iii) The Family Court Akola is directed to return the plaint
to the original applicant for presentation before the Judicial
Magistrate First Class Barshitakali.
(iv) On presentation of the application by the applicants
before the Judicial Magistrate First Class, Barshitakali, the
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Judicial Magistrate First Class, shall consider the application
and decide the application expeditiously.
(v) The Judicial Magistrate First Class, Barshitakali shall
also consider the application if filed for interim relief.
(vi) The applicant to take appropriate steps to proceed with
the application after the application is returned to her for
presentation before the Judicial Magistrate, First Class
Barshitakli.
(vii) Being the issue involved is as to the jurisdiction
therefore, revision application is not decided on merits.
(viii) Criminal Revision Application No.72/2017 is rejected
as the order of maintenance which is sought to be enhanced
in the present Revision Application is passed without
jurisdiction.
26 The criminal revision applications stand disposed
of in the above said terms.
Pending applications, if any, also stand disposed of.
(URMILA JOSHI PHALKE, J.)
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manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 02/04/2026 15:25:09
