# Smt. Durgawati Devi v. Muktinath Tiwari

- **Citation:** (2020) 6 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-29
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-durgawati-devi-v-muktinath-tiwari-45869
- **Pages:** 6

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Section 24 - Code of Criminal
Procedure,1973-Sections
125,127challenge to- maintainability of-Section 24
CPC or Section 407 Crpc-petition filed by
wife for transfer of proceedings from the
Family Court Faizabad to Family Court,
Ambedkar Nagar-Family Court is deemed to
be a Civil Court for the purposes of suits
and proceedings governed by the CPC while
Family
Court
exercises
jurisdiction
exercisable by the Magistrate of the First
Class under CrPC, therefore Section 407

CrPC would clearly apply for transfer of
proceedings u/s 125 and 127 CrPC as Subsection 2 of Section 10 of the Act,1984 says
that the provisions of the CrPC or the rules
made
thereunder,
shall
apply
to
the
proceedings under Chapter IX CrPC before a
Family Court-thus, application u/s 24 is not
maintainable.(Para 2 to 14)
The application is dismissed. (E-6)

List of Cases Cited:-

## Text

6 All. Smt. Durgawati Devi Vs. Muktinath Tiwari 625

40. The office is directed to return the
record of the court below forthwith without
any delay.
----------
(2020)06ILR A625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Application U/S 24/ Order 39 Rule 2-A CPC No.
- 126 of 2018
&
Application U/S 24/ Order 39 Rule 2-A CPC No.
- 127 of 2018

Smt. Durgawati Devi ...Applicant
Versus
Muktinath Tiwari ...Opposite Party

Counsel for the Applicant:
Vaibhav Srivastava

Counsel for the Opposite Party:
-----

A. Civil Law - Code of Civil Procedure,
1908-Section 24 - Code of Criminal
Procedure,1973-Sections
125,127challenge to- maintainability of-Section 24
CPC or Section 407 Crpc-petition filed by
wife for transfer of proceedings from the
Family Court Faizabad to Family Court,
Ambedkar Nagar-Family Court is deemed to
be a Civil Court for the purposes of suits
and proceedings governed by the CPC while
Family
Court
exercises
jurisdiction
exercisable by the Magistrate of the First
Class under CrPC, therefore Section 407

CrPC would clearly apply for transfer of
proceedings u/s 125 and 127 CrPC as Subsection 2 of Section 10 of the Act,1984 says
that the provisions of the CrPC or the rules
made
thereunder,
shall
apply
to
the
proceedings under Chapter IX CrPC before a
Family Court-thus, application u/s 24 is not
maintainable.(Para 2 to 14)
The application is dismissed. (E-6)

List of Cases Cited:-

1. Vijay Kumar Prasad Vs St. of Bih. & ors.
(2004) 5 SCC 196

2. Mohd.Nadeem Vs St. of U.P. Crl .Rev. No.
98 of 2015

(Delivered by Hon'ble Rajan Roy, J.)

1. These petitions have been filed by
the wife for transfer of proceedings under
Section 125 (3) Code of Criminal
Procedure (hereinafter referred as Cr.P.C.
1973,) and Section 127 Cr.P.C bearing
Case No. 119 of 2015, Smr. Durgawati
Devi Vs. Muktinath Tiwari and Case No.
118 of 2015, Smt. Durgawati Devi Vs.
Muktinath Tiwari respectively from the
Principle Judge Family Court, Faizabad to
the court of Principle Judge Family Court,
Ambedkar Nagar.

2. During the Course of argument a
question
arose
as
to
whether
an
application under Section 24 of the Code
of Civil Procedure, 1908 (herein after
referred as C.P.C.) would be maintainable
for transfer of proceedings under Section
125 and 127 Cr.P.C. 1973, or not? This
query had been put to the learned counsel
for the applicant by the Court vide its
order dated 07.02.2020.

3. When the matter was taken up for
hearing, thereafter, learned counsel for
the applicant relied upon a decision of the
Supreme Court reported in (2004) 5 SCC
196; Vijay Kumar Prasad Vs. State of
Bihar and others; wherein it had been
held that proceedings under Section 125
Cr.P.C
were
of
Civil
nature.
He
contended that proceedings in question
being
of
a
civil
nature,
transfer
626 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Section 24 CPC would
be maintainable before this Court. He also
relied upon decision of a Co-ordinate
Bench of this Court in the case of
Mohammad Nadeem Vs. State of U.P.
and other in Criminal Revision No. 98 of
2015 and connected matters wherein it
had been held that judgments and orders
passed by the Family Court would be
subject to the remedy provided under
Section 19 of the Family Courts Act,
1984 and not the remedy available under
the Criminal Procedure Code, 1973 or the
Code of Civil Procedure, 1908 and it will
be deemed to be a Civil Court for the
purpose Section 19 of the Act, 1984.
Based on it he submitted that there is no
difficulty in maintaining an application
under Section 24 CPC for transfer of the
proceedings pending before the Family
Court, under Section 125 and 127 Cr.P.C.
1973, as it is deemed to be a Civil Court.
Relying upon the same decision he
contended that against an order passed by
the Family court, a petition under Section
482 Cr.P.C would not be maintainable, as
the Family Court is deemed to be a Civil
Court
and
not
a
Criminal
Court
subordinate
to
High
Court
within
meaning of 482 Cr.P.C. 1973, Therefore,
according to him, for this reason also an
application under Section 24 C.P.C would
be maintainable.

4. The Family Courts Act, 1984
(herein after referred as Act, 1984) was
enacted by the Parliament to provide for
the establishments 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. For the
purposes of the issue involved in this
application Section 7 and 10 of the Act,
1984 are relevant as they deal with
jurisdiction and procedure generally,
respectively. Section 7 dealing with
jurisdiction reads as under:-

" 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 aw for the time being in force in
respect of suits and proceedings of the
nature referred to in the Explananation;
and

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

Explanation.-- The suits and
proceedings referred to in this subsection 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 of proceeding for an
order or injunction in circumstances
arising out of a mutual relationship;

(e) a suit of proceeding for a
declaration as to the legitimacy of any
person;
6 All. Smt. Durgawati Devi Vs. Muktinath Tiwari 627

(f) a suit or proceeding for
maintenance;

(g) a suit of 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.

Section
10
dealing
with
procedure generally to be followed in the
Family Courts reads as under:-

" 10. Procedure generally.-- (1)
Subject to the other provisions of this Act
and the rules, the provisions of the Code
of Civil Procedure, 1908 (5 of 1908) and
of any other law for the time being in
force shall apply to the suits and
proceedings (other than the proceedings
under Chapter IX of the Code of Criminal
Procedure, 1973) (2 of 1974), before a
Family Court and for the purposes of the
said provisions of the Code, Family Court
shall be deemed to be a civil court and
shall have all the powers of such Court.

(2)
Subject
to
the
other
provisions of this Act and the rules, the
provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) or the rules
made thereunder, shall apply to the
proceedings under Chapter IX of that
Code before a Family Court.

(3) Nothing in sub-section (1) or
sub-section (2) shall prevent a Family
Court
from
laying
down
its
own
procedure with a view to arrive at a
settlement in respect of the subject-matter
of the suit or proceedings or at the truth
of the facts alleged by the one Party and
denied by the other."

5. On a bare perusal of Section 7(1)
the Court finds that the Family Court,
subject to other provisions of the said Act,
has
been
vested
with
jurisdiction
exercisable by any District Court or any
Sub-ordinate 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 for this
purpose it is deemed to be a District Court
or as the case may be such sub-ordinate
Civil Court for the area to which the
jurisdiction of the Family Court extends.
Clause (a) to (g) mentions about the suits
and proceedings referred in Section
7(1)(a). Clause (f) of the explanation to
Section 7(1) refers to suit or proceeding
for maintenance. The suit or proceeding
for maintenance referred in Clause (f)
however is distinct from the proceedings
for maintenance under Section 125 and
127 of Chapter IX Cr.P.C. 1973, This is
evident from the fact that the latter
proceedings are separately dealt with and
are separately mentioned in Sub-section 2
of Section 7. Therefore, reference to suit
or proceedings for maintenance in Clause
(f) of the explanation to Section 7 (1)
appears to be a reference to such
proceedings under the Hindu Adoption
and Maintenance Act, 1956 or the Hindu
Marriage Act, 1955. If the said provision
included the proceedings for maintenance
under Section 125 and 127 then the
legislature would not have mentioned the
latter proceedings separately under Subsection 2 of Section 7.

6. Now as per Sub-section 2, a
Family Court, subject to other provisions
of the Act, shall have and exercise also as
628 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction exercisable by the Magistrate
of first class under Chapter IX (relating to
order for maintenance of wife children
and parents of the Code of Criminal
Procedure,1973)
and
such
other
jurisdiction as may be conferred on it by
any other mention. The distinction
between
the
two
jurisdictions,
one
mentioned in Section 7(1) and the other in
Sub-section 2 of Section 7, is thus clear
from the scheme of the Act itself. Now
the question is as to what is the procedure
to be applied to these two jurisdiction and
to the proceedings arising there from
especially in the context of transfer of
proceedings under Section 125 and 127
Cr.P.C. 1973 pending before the Family
Court i.e. whether an application under
Section 24 CPC will apply or an
application under Section 407 Cr.P.C.
will apply or for that matter any other
remedy would be available in this regard.
In this context when the Court peruses
Section 10, which describes the procedure
generally to be followed by the Family
Court, it is revealed that Sub-section 1
thereof, which is subject to other
provisions of the Act and the Rules, says
that the provisions of the C.P.C. 1908 and
of any other law for time being in force
shall apply to the suits and proceedings
(other than the proceedings under
Chapter IX of the Code of Criminal
Procedure, 1973), before a Family Court,
and for the purposes of application of the
C.P.C., a Family Court shall be deemed to
be a Civil Court and shall have all the
powers of such Court. Now the said
provision itself makes it very clear that
the
C.P.C.
applies
to
suits
and
proceedings other than the proceedings
under Chapter IX of the Cr.P.C. Thus
Cr.P.C,1973 is excluded from application
to suits and proceedings referred in
Section 10(1) which is obviously a
reference to the suits and proceedings
mentioned in Section 7(1) read with
clause (a) to (g) of the explanation to it.

7. Sub-section 2 of Section 10,
which is again subject to the other
provisions of the Act and the Rules, says
that the provisions of the Cr.P.C. or the
rules made thereunder, shall apply to the
proceedings under Chapter IX Cr.P.C
before a Family Court. Thus Cr.P.C
applies to proceedings under Chapter IX.
It being so, a logical corollary of it is that,
for the transfer of any proceedings under
Section 125 and 127 Cr.P.C. 1973, which
fall under Chapter IX Cr.P.C. 1973,, the
Cr.P.C, 1973 applies. Section 407 Cr.P.C.
1973,
contains
a
provision
which
empowers the High Court to transfer any
particular case from a Criminal Court
subordinate to it its authority to any other
criminal Court of equal or superior
jurisdiction. The High Court may either
act either on the report of the lower Court
or on the application of the party
interested or on its own initiative. In the
instant case a transfer is being sought
from the Family Court, Faizabad to the
Court of Principle Judge Family Court,
Ambedkar Nagar that is outside the
sessions division have an application will
lie before the High Court.

8. Now from the bare perusal of
Section 10 (1), it is evident that the
Family Court is deemed to be a Civil
Court for the purposes of suits and
proceedings governed by the C.P.C and
not for the purposes of proceedings under
Chapter IX of the Cr.P.C, as has already
been discussed herein above. So far as
proceedings under Chapter IX of the
Cr.P.C. are concerned, the Family Court
exercises jurisdiction exercisable by the
Magistrate of the first class under the
6 All. Smt. Durgawati Devi Vs. Muktinath Tiwari 629
Code of Criminal Procedure, therefore,
this Court is of the view that Section 407
would clearly apply for transfer of
proceedings under Section 125 and 127
Cr.P.C. 1973, as they are contained in
Chapter IX, Cr.P.C. 1973.

9. The contention of the learned
counsel for the petitioner that application
under Section 24 C.P.C would be
maintainable
in
the
facts
and
circumstances of the case is thus
unacceptable.

10. The fact that the proceedings
under Section 125 Cr.P.C have been held
by the Supreme Court to be essentially of
a Civil nature does not make much of a
difference so far as applicability of the
provisions of CPC or Cr.P.C to such
proceedings are concerned as this is an
aspect
which
is
governed
by
the
provisions contained in the Act, 1984
itself as already discussed. As per Subsection 2 of Section 10 in the Code of
Criminal
Procedure
applies
to
proceedings under Section 125 and 127
Cr.P.C. The Counsel could not point out
any other provisions in the Act or the
Rules, in the Act, 1984 or the rules made
thereunder if any, which could persuade
the Court to take any other view of the
matter.

11. Even as per the judgment in
Mohammad Nadeem (Supra) provisions
of CPC have not been made applicable to
proceedings under Chapter IX and there is
nothing therein which could persuade this
Court to hold otherwise. The ratio of the
said judgment on the issue as to whether
an appeal would lie under Section 19 of
the Act, 1984 or remedy under the
provisions of any other law for the time
being in force like Cr.P.C., CPC and
Hindu Marriage Act is available, does not
have any bearing so far as the question
involved in this application is concerned.
The question here is as to whether, for
transfer of proceedings under Section 125
and 127, C.P.C will apply or Cr.P.C will
apply. From a bare perusal of Sub-section
2 of Section 10, as already discussed, and
for the reasons already given in the
Cr.P.C. which applies and it contains a
provision for transfer of such proceedings
under Section 407 thereof.

12. In the aforesaid case of Nadeem
as there was a specific remedy against the
orders of the Family Court by way of an
appeal under Section 19 (1) of the Act,
1984, therefore, the provisions of the CPC
and the Cr.P.C were held to be
inapplicable but the said reasoning does
not apply in this case in view of the
unambiguous provision of the Act, 1984
itself in this regard, as noted hereinabove,
which permits the applicability of Cr.P.C.
to proceedings under Chapter IX Cr.P.C.
This is also the view taken by a coordinate Bench of this Court in the Case
of Durga Prasad Vs. Family Judge,
Bareilly, 98 (33) ALR 537.

13. In view of the aforesaid
discussion, it is not necessary to go into
the question as to whether remedy will lie
under Article 227 of the Constitution of
India as suggested by some of the learned
Counsels, as this would be the case only
if there was no remedy available in the
Cr.P.C. 1973.

14. In view of the above these
applications/petitions under Section 24
C.P.C are not maintainable and are
accordingly dismissed but with liberty to
seek other appropriate remedy available
in law and without prejudice to the same.
630 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2020)06ILR A630
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.06.2020

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE CHANDRA DHARI SINGH, J.

Special Appeal Defective No. 107 of 2019

State Bank of India, Bombay & Ors.
 ...Appellants
Versus
S.B. Singh ...Respondent

Counsel for the Appellants:
Sudeep Seth, Alok Saxena

Counsel for the Respondents:
Dharmendra Kumar Dixit

A.
Service
Law
-
Departmental
proceedings - Criminal proceedings -
Dismissal - Indian Penal Code, 1860:
Sections 419, 420, 467, 468 - There is no
violation of principle of natural justice in
this case. A bank employee who had refused
to avail of the opportunities provided to him in
a disciplinary proceeding of defending himself
against the charges of misconduct involving
his integrity and dishonesty, cannot be
permitted to complain later that he had been
denied a reasonable opportunity of defending
himself of the charges levelled against him
and the disciplinary proceeding conducted
against him had resulted in violation of
principles of natural justice. (Para 22)

B. Words & Phrases - "honourable acquittal"
- It is difficult to define precisely what is meant by
the expression "honourably acquitted". When the
accused is acquitted after full consideration of
prosecution evidence and that the prosecution had
miserably failed to prove the charges levelled
against the accused, it can possibly be said that the
accused was honourably acquitted. (Para 27)

C. Mere acquittal of an employee by a
criminal court has no impact on the
disciplinary proceedings initiated by the
Department (Para 28, 40) - Acquittal in a
criminal case by itself cannot be a ground for
interfering with an order of punishment imposed by
the disciplinary authority. Order of dismissal can be
passed even if the delinquent officer had been
acquitted of the criminal charge. (Para 30)

In the absence of any provision in the service rules
for reinstatement, if an employee is not honourably
acquitted by a criminal court, no right is conferred
on the employee to claim any benefit including
reinstatement. Reason is that the standard of proof
required for holding a person guilty by a criminal
Court and the enquiry conducted by way of
disciplinary proceedings is entirely different. In a
criminal case, the onus of establishing the guilt of
the accused is on the prosecution and if it fails to
establish the guilt beyond reasonable doubt, the
accused is assumed to be innocent. It is settled law
that the strict burden of proof required to establish
guilt in a criminal Court is not required in a
disciplinary proceedings and preponderance of
probabilities is sufficient. (Para 4, 41)

Special Appeal allowed. (E-4)

Precedent followed:

1. St General Manager (Operations), S.B.I. Vs
R. Periyasamy, (2015) 3 SCC 101 (Para 4)

2. Deputy Inspector General of Police Vs S.
Samuthiram, (2013) 1 SCC 598 (Para 4)

3. Manager, R.B.I. Vs S. Mani, (2005) 5 SCC
100 (Para 4)

4. RBI Vs Bhopal Singh Panchal, (1994) 1 SCC
541 (Para 27)

5. R.P. Kapur Vs U.O.I., AIR 1964 SC 787
(Para 28)

6. State of Assam Vs Raghava Rajgopalachari,
1972 SLR 44 (SC) (Para 28)

7. Robert Stuart Wauchope Vs Emperor, ILR
(1934) 61 Cal 168 (Para 28)

8. Southern Railway Officers Assn. Vs U.O.I.,
(2009) 9 SCC 24 (Para 30)