RAZIA BEGUM Vs. MOHD IQBAL

JUDGEMENT

(1.) This revision is filed questioning the impugned order dated 08-06-2010 passed by the Additional Metropolitan Sessions Judge for trial of JHCBBC-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad, in SR No. 1094 of 2010 in MC No. 89 of 2010 rejecting the petition filed by sister against brother for temporary injunction restraining the brother from alienating house property mentioned in the schedule by any means. The lower court rejected the application filed by the Petitioner/sister in limine on the ground that the petition filed by the Petitioner on the ground that MC No. 89 of 2010 filed by the Petitioner was one under Section 125 Code of Criminal Procedure and that therefore, provisions of C.P.C will not apply to it.

(2.) It is contended by the Petitioner's counsel that the order passed by the lower court is erroneous in as much as the Petitioner filed the proceeding before the lower court under Section 7(1)(f) of the Family Courts Act, 1984 ( in short, the Act) and not under Section 125 Code of Criminal Procedure For appreciating the contention of the Petitioner's counsel, a reference to Section 7 of the Act becomes relevant and it reads as follows:

(3.) Sub-sections (1) & (2) of Section 7 of the Act deal with jurisdiction of the Family Court. It does not deal with rights and liabilities of the parties before the Family Court. Rights and liabilities of the parties depend on their personal laws well as civil and criminal laws applicable to them. The Petitioner filed MC No. 89 of 2010 in the lower court under Section 7(1)(f) of the Act by affixing court fee stamp of Re.1/- on it. The Petitioner's counsel contends that explanation (f) to Section 7(1) of the Act confers jurisdiction on the family court on relationship not only a suit or other proceedings for maintenance and that the Petitioner framed the petition in the lower court as the proceeding and not as a suit for maintenance and therefore, the Petitioner need not pay court fee as in a suit. When questioned under what provision the proceeding was instituted by the Petitioner in the lower court, the Petitioner's counsel stated that the Petitioner initiated the proceedings in view of the right conferred on her to claim maintenance from her brother under Muslim Personal Laws. Thus, the Petitioner wants the lower court to enforce Muslim Personal Laws in the Proceeding before the lower court. Then, he has to necessarily file a suit under Section 9 of C.P.C for enforcing the said right conferred on the Petitioner under Muslim Personal Law by way of praying relief of maintenance against her brother. For filing a suit under Section 9 of C.P.C, claiming maintenance, the Petitioner has to pay necessary court fee in the proceeding before the lower court. Without doing so, the Petitioner cannot claim that she filed the proceeding in the lower court under explanation (f) to Section 7(1) of the Act.