MALABIKA RATHA AND ANOTHER Vs. SUB

JUDGEMENT

(1.) This writ application has been filed by the wife and son of opposite part No. 4 to quash the order passed by the learned Sub-divisional Judicial Magistrate, Cuttack, in Misc. Case No. 208 of 1991 as well as the order of the 2nd Additional Magistrate Judge Incharge of the Family Court annexed as Annexure-2, in Criminal Proceeding No. 607-A of 1991.

(2.) The short facts are that on an application being filed by the present petitioner under Sec. 125 of the Code of Criminal Procedure, the learned Sub-Divisional Judicial Magistrate, Cuttack, passed an ex parte order granting maintenance at the rate of Rupees 500.00. per month from the date of filing of the applications, i.e., 7-5-1989. The ex parte order was passed on 24-2-1990 in Criminal Misc. Case No. 70 of 1989. As the amount was not raid, the petitioners filed an application under Sec. 126(3) of the Code of Criminal Procedure for realisation of the amount which was registered as Criminal Misc. Case No. 85 of 1990. In that proceeding before the Magistrate, opposite part No. 4 entered appearance and he also filed an application invoking the jurisdiction of the magistrate under Sec. 126(2) of the Code of Criminal Procedure for setting aside the ex parte order passed in Criminal Misc. Case No. 79 of 1989. The aforesaid application of the husband of petitioner No. 1 was registered as Misc. Case No. 54 of 1990. The said Misc. Case No. 154 of 1990 was dismissed for default on 20-2-1991. The Sub-Divisional Judicial Magistrate issued warrant for realisation of the maintenance amount in Criminal Misc. Case No. 85 of 1990 which had been filed by the petitioners under sub-section (3) of Sec. 125 of the Code of Criminal Procedure. In the meantime, the Family Courts Act came into force and a Judge, family Court, was appointed at Cuttack under Sec. 3 of the Family Courts Act. In view of the establishment of the Family Court at Cuttack, the Criminal Misc. Case No. 85 of 390 stood transferred to the Judge, Family Court, and was registered as Criminal Prodding No. 607-A of 1991. On the petitioners' prayer, the Judge, Family Court, passed an order on 10-10-1991 attaching the salary of opposite party No. 4. Opposite party No. 4 then filed another application before the Sub-divisional Judicial Magistrate on 27-11-1991, for restoration of Criminal Misc. Case No. 154 of 390, which had been dismissed for default on 20-2-1991. The Judge, Family Court, in the proceeding before him (Cr. Proceeding No. 607-A of 1991) stayed his earlier order dated 10-10-1991 since the husband-opposite party deposited a part of the amount towards the arrear maintenance dues. The order dated 10-10-1991 passed by the Judge, Family Court, was ultimately recalled on 2-2-1992. Subsequently on 1-8-1992, opposite Part No. 4 filed a petition before the Sub-divisional Judicial Magistrate which was registered as Misc. Case No. 309 of 1991 praying therein that the proceeding before the Judge, Family Court, should be stayed. The learned Sub-divisional Judicial Magistrate stayed the proceeding before the Judge, Family Court, by order dated 10-8-1992. On the basis of the aforesaid order, the 2nd. Additional District Judge who was in charge of the Judge, Family Court, passed an order on 22-8-1992 directing that the realisation of the maintenance dues to stayed. The petitioners, therefore, have approached this Court.

(3.) Mr. Nanda for the petitioners contends that after establishment of the Family Court, the Sub-Divisional Judicial Magistrate does not retain any jurisdiction to entertain any application in relation to the proceeding under Sec. 125 of the Code of Criminal Procedure. He further contends that the 2nd Additional District Judge who was in charge of the Judge, Family Court, could not have exercised the powers of the Family Court and therefore, the order dated 22-8-1992 passed by the said Additional District Judge is without jurisdiction.