JAYSHREE WIFE OF SHARAD TEMDHARE Vs. SHARD

JUDGEMENT

(1.) THIS Revision Application takes exception to the Order dated 30-12-2002 passed by the Family Court, Nagpur in Petition e-5/2001. The applicant is the wife of respondent No. 1. The applicant and respondent No. 1 got married on 14-4-2000. Thereafter, there were disputes between the applicant and respondent No. 1 and in January, 2001 the applicant filed an application under section 125 of the Code of Criminal Procedure against the respondent No. 1 in the Family Court, Nagpur claiming maintenance of Rs. 1500/- p. m. The respondent No. 1 was served in the said proceedings and on 28-7-2001 an ex parte order was passed against the respondent No. 1. On 20-9-2001 the application was field by the respondent No. 1 contending therein that the Family Court at Nagpur had no jurisdiction since the applicant was not residing at Nagpur. The applicant field her say and thereafter the Family Court, nagpur permitted both sides to lead evidence on the issue of jurisdiction and after considering the evidence led by the parties the Family Court, Nagpur held that since the applicant was not residing at Nagpur, the proceedings under section 125 of the Code of Criminal Procedure were not maintainable at Nagpur. It appears that by Order dated 1-1-2002 ex parte order passed against the respondent was set aside and the respondent No. 1 filed his reply to the application under section 125 of the Code of Criminal Procedure filed by the present applicant. The learned counsel appearing for the applicant submits that the findings recorded by the Family Court are contrary to law and at the relevant time when the applicant filed the proceedings in the Family Court, the applicant was residing at Nagpur. The learned counsel placed reliance on the Judgment of the Apex Court reported in 7995 (Supp.) 4 SCC page 137, Darshan Kumari (Smt)vs. Surinder Kumar. Mr. Patil, the learned counsel for the respondent No. 1 submits that no fault could be found with the impugned order and this is not a fit case in which this Court should interfere in exercise of revisional jurisdiction.

(2.) I have considered the submissions made by the counsel for both sides. I have also gone through the Judgment relied upon by the counsel for the applicant. At the outset, it is pertinent to note that the Family Court at Nagpur has entertained the application filed by the respondent No. 1 contending therein that the Family Court at Nagpur had no jurisdiction to entertain the proceedings. I fail to understand as to how such application could have been filed by the respondent no. 1 in view of the fact that ex parte order was already passed against the respondent No. 1 on 28-7-2001. Moreover, I fail to understand as to how the family Court proceeded to permit both the parties to lead evidence on the issue of territorial jurisdiction even before the respondent No. 1 was allowed to file his reply, to the application. It is well settled that the proceedings under section 125 of the Code of Criminal Procedure are in the nature of summary proceedings and it is not expected of the learned Magistrate to hold separate inquiry to decide the point of jurisdiction at the instance of the party against whom an ex parte order is passed. The Family Court ought to have permitted the respondent No. 1 to take all objections together and ought to have proceeded to decide the matter on merit and if the respondent No. 1 has taken the point of jurisdiction, the same ought to have been decided at the time of passing the final order in the matter. It is not expected of the Magistrate in the proceedings under section 125 of the Code of criminal Procedure to hold separate inquiries, one on the point of jurisdiction and the second on merit. In my opinion, the learned Family Court has not followed the correct procedure. In my opinion, the Family Court ought to have decided the entire matter on merit after permitting both the sides to lead evidence in the matter. If the learned Family Court after recording the entire evidence comes to the conclusion that the Court has no jurisdiction than the Family Court would be fully justified in passing appropriate order holding that it has no jurisdiction to entertain the matter.

(3.) IN the light of the above discussion I am of the opinion that the impugned order is liable to be set aside and is accordingly set aside. The Family court, Nagpur is directed to proceed further in the matter and decide the Petition no. E-5/2001 on merit. While deciding the application filed by the respondent no. 1 on merit the Family Court shall decide whether it has jurisdiction to entertain the matter.