# Shiva Pankaj & Anr v. State of U.P & Anr. Opp. Parties - **Citation:** (2024) 6 ILRA 167 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-06-07 - **Case number:** Application u/s 482 No. 426 of 2024 - **Bench:** Subhash Vidyarthi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiva-pankaj-anr-v-state-of-u-p-anr-opp-parties-52128 - **Pages:** 4 ## Headnote A. Family Law - Maintenance - Family Courts Act: Section 7; Code of Criminal Procedure: Section 125 - Maintainability - As the Family Court exercises jurisdiction of judicial magistrate while deciding an application u/s 125 Cr.P.C., an application u/s 483 Cr.P.C. seeking a direction to the Family Court for expeditious disposal of an application u/s 125 Cr.P.C. would be maintainable. (Para 9) Family Court exercises two types of powers. Cases except the case under Chapter IX of the Code are decided by the Family Court as a District Court. The Family Court while dealing with the proceedings under Chapter IX of the Code Family Court exercises the jurisdiction of a Judicial Magistrate First Class. (Para 8) As the petitioners' application u/s 125(1) Cr.P.C. for payment of interim maintenance is pending since 18.04.2023 although the period of sixty days provided in the third proviso appended to Section 125(1) Cr.P.C. for disposal of the application for interim maintenance has expired long ago, it would be expedient in the interest of justice that a direction be issued to the Family Court for expeditious disposal of the application for interim maintenance. (Para 11 to 13) Writ petition allowed. (E-4) Precedent followed: Rajesh Shukla Vs Meena & anr., 2005 CriLJ 3800 (Para 7) Present application seeks issuance of a direction to the APJ-07, Family Court, Lucknow to decide the case of the applicant u/s 125 Cr.P.C., expeditiously. ## Text 6 All. Shiva Pankaj & Anr. Vs. State of U.P. & Anr. 167 exercised very cautiously to do real and substantial justice for which the court alone exists. 44. In view of the above said facts and circumstances of the case, the investigation done by the police in this case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the learned Magistrate is also illegal. Secondly, the entire proceeding before the learned Magistrate is vitiated by serious incurable defects. 45. Thus, in view of the law laid down by the Hon'ble Supreme Court and the facts and circumstances, as narrated above and from the perusal of the record, the impugned cognizance and summoning order dated 13.09.2022 passed by the court of Civil Judge (Senior Division) / F. T. C. IInd Pratapgarh, which has been taken on the charge sheet dated 06.08.2022, arising out of the Case Crime No.0106 of 2021, under section 143, 147, 281, 283, 188, 269, I.P.C. & 51(b) Disaster Management Act, 2005, Police Station Kohandaur, DistrictPratapgarh, as well as the entire criminal proceedings in pursuance thereof are against the spirit and directions issued by the Hon'ble Supreme Court and are liable to be quashed. 46. Accordingly, the impugned cognizance and summoning order dated 13.09.2022 passed by the court of Civil Judge (Senior Division) / F. T. C. IInd Pratapgarh, which has been taken on the charge sheet dated 06.08.2022, arising out of the Case Crime No.0106 of 2021, under section 143, 147, 281, 283, 188, 269, I.P.C. & 51(b) Disaster Management Act, 2005, Police Station Kohandaur, DistrictPratapgarh as well as the entire criminal proceedings in pursuance thereof are hereby quashed in respect of all the 28 applicants. 47. For the reasons discussed above, the instant application under Section 482 Cr.P.C. filed by the applicant, namely- (1) Ashish Kumar Tiwari @ Rahul, 2. Chandra Prakash Tiwari @ Happy, 3. Prashant Tiwari, 4. Shubham Dubey, 5. Sachin Tiwari, 6. Roopam Dubey, 7. Vivek Dubey, 8. Himanshu Tiwari, 9. Keshav Dubey, 10.Shashank Dubey @ Veeru, 11.Amit Tripathi @ Aparadhi, 12.Prince @ Ashutosh Dubey, 13.Mauni Tiwari @ Navin Kumar, 14.Shekhar Dubey, 15. Avinash Tiwari, 16.Satendra Dubey, 17.Abhimanu Tiwari, 18. Ashish Tiwari 19.Rishikesh Sharma, 20. Jitendra Ojha, 21.Aditya Tiwari, 22.Gangasagar Tiwari, 23.Arun Dubey @Arun Kumar Dwivedi, 24.Gyan Prakash Dubey @ Subbey, 25. Vivek Ojha, 26.Shani Tiwari, 27.Gulashan Tiwari, 28.Shanu Dubey is allowed in respect of the above named applicants. 48. Learned Senior Registrar of this Court is directed to transmit a copy of this order to the trial court concerned for its necessary compliance. ---------- (2024) 6 ILRA 167 ORIGINAL JURISDICTION CRIMINAL SIDE DATED LUCKNOW 07.06.2024 BEFORE THE HON'BLE SUBHASH VIDYARTHI, J. Application u/s 482 No. 426 of 2024 Shiva Pankaj & Anr. ...Applicants Versus State of U.P & Anr. ...Opp. Parties Counsel for the Applicants: Annapurna Agnihotri 168 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Opp. Parties: G.A. A. Family Law - Maintenance - Family Courts Act: Section 7; Code of Criminal Procedure: Section 125 - Maintainability - As the Family Court exercises jurisdiction of judicial magistrate while deciding an application u/s 125 Cr.P.C., an application u/s 483 Cr.P.C. seeking a direction to the Family Court for expeditious disposal of an application u/s 125 Cr.P.C. would be maintainable. (Para 9) Family Court exercises two types of powers. Cases except the case under Chapter IX of the Code are decided by the Family Court as a District Court. The Family Court while dealing with the proceedings under Chapter IX of the Code Family Court exercises the jurisdiction of a Judicial Magistrate First Class. (Para 8) As the petitioners' application u/s 125(1) Cr.P.C. for payment of interim maintenance is pending since 18.04.2023 although the period of sixty days provided in the third proviso appended to Section 125(1) Cr.P.C. for disposal of the application for interim maintenance has expired long ago, it would be expedient in the interest of justice that a direction be issued to the Family Court for expeditious disposal of the application for interim maintenance. (Para 11 to 13) Writ petition allowed. (E-4) Precedent followed: Rajesh Shukla Vs Meena & anr., 2005 CriLJ 3800 (Para 7) Present application seeks issuance of a direction to the APJ-07, Family Court, Lucknow to decide the case of the applicant u/s 125 Cr.P.C., expeditiously. (Delivered by Hon'ble Subhash Vidyarthi, J.) 1. Heard Ms. Annapurna Agnihotri, the learned counsel for the applicants and Sri Rakesh Kumar Singh, the learned AGA for the State. 2. Keeping in view the nature of relief claimed, issuance of notice to the opposite party no. 2 is dispensed with. 3. By means of the instant application filed under Section 483 Cr.P.C., the applicants have sought issuance of a direction to the learned Additional Principal Judge (APJ-07), Family Court, Lucknow to decide Case No. 121/2022 (Shiva Pankaj & Anr. v. Prahlad Kumar), under Section 125 Cr.P.C., expeditiously. 4. The learned AGA has raised a preliminary objection that under Section 483 Cr.P.C., this Court exercises power of superintendence over the courts of judicial magistrates subordinate to it whereas the applicants are seeking a direction to the learned Additional Principal Judge, who is not a court of magistrate and, therefore, the application under Section 483 Cr.P.C. seeking issuance of a direction to the Additional Principal Judge, Family Court is not maintainable. 5. Replying to the aforesaid preliminary objection, the learned counsel for the petitioner has submitted that while deciding an application under Section 125 Cr.P.C., the Family Court exercises the jurisdiction of a magistrate and, therefore, an application under Section 483 Cr.P.C. will be maintainable for issuing a direction for expeditious disposal of an application under Section 125 Cr.P.C. 6. Section 7 of the Family Courts Act provides as follows:- "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 6 All. Shiva Pankaj & Anr. Vs. State of U.P. & Anr. 169 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 (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; (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." 7. A Full Bench of Madhya Pradesh High Court was dealing with the following question in Rajesh Shukla v. Meena & Anr..: 2005 CRILJ 3800 'Whether against the order passed by the Family Court in an application under Section 125 of the Code while exercising jurisdiction under Chapter IX of the Code, revision under Sub-section (4) of Section 19 of the Act should be registered as Civil Revision or Criminal Revision or Revision Petition (Family) ?" 8. While deciding this question, the Full Bench of Madya Pradesh High Court held that "From perusal of the scheme of the Act, it is clear that Family Court exercises two types of powers. Cases except the case under Chapter IX of the Code are decided by the Family Court as a District Court. The Family Court while dealing with the proceedings under Chapter IX of the Code Family Court exercises the jurisdiction of a Judicial Magistrate First Class." 9. As the Family Court exercises jurisdiction of judicial magistrate while 170 INDIAN LAW REPORTS ALLAHABAD SERIES deciding an application under Section 125 Cr.P.C., an application under Section 483 Cr.P.C. seeking a direction to the Family Court for expeditious disposal of an application under Section 125 Cr.P.C. would be maintainable. 10. Accordingly, I reject preliminary objection raised by the learned AGA and proceed to examine the merits of the case. 11. The petitioner no. 1 got married to the opposite party no. 2 on 19.02.2012. She gave birth to a daughterpetitioner no. 2, on 23.01.2014. The petitioner no. 1 alleges that the opposite party no. 2 used to ill treat her and he threw her and her daughter out of her matrimonial home in the night of 21.12.2021. On 02.02.2022, the petitioners filed an application under Section 125 Cr.P.C. claiming maintenance. The opposite party no. 2 filed an application dated 17.05.2023 under Section 125(4) Cr.P.C. praying for rejection of the application under Section 125 Cr.P.C. On 28.02.2023, the petitioners filed an application for payment of interim maintenance, to which the opposite party no. 2 filed his objections on 18.04.2023. The case has repetitively been adjourned since then and the application for interim maintenance has not been decided till date. 12. The third proviso appended to Section 125(1) Cr.P.C. provides that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of he service of notice of the application to such person. 13. As the petitioners' application under Section 125(1) Cr.P.C. for payment of interim maintenance is pending since 18.04.2023 although the period of sixty days provided in the third proviso appended to Section 125(1) Cr.P.C. for disposal of the application for interim maintenance has expired long ago, it would be expedient in the interest of justice that a direction be issued to the Family Court for expeditious disposal of the application for interim maintenance. 14. Accordingly, the instant petition is allowed. 15 . The learned Additional Principal Judge (APJ-07), Family Court, Lucknow is directed to dispose of the pending application for payment of interim maintenance to the petitioners expeditiously, keeping in view the statutory mandate contained in third proviso appended to Section 125(1) Cr.P.C. ---------- (2024) 6 ILRA 170 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 13.06.2024 BEFORE THE HON'BLE SHAMIM AHMED, J. Transfer Application (Criminal) No. 27 of 2022 Smt. Ankita Singh ...Applicant Versus State of U.P. & Ors. ...Respondents Counsel for the Applicant: Viplava Singh, Sunil Kumar Singh, Surya Bux Singh Counsel for the Respondent: G.A., Udai Bhan Pandey Criminal Law - Indian Penal Code, 1860 - Sections 498A, 323, 504 & 506 - Dowry Prohibition Act, 1961 - Section 3⁄4