NASIR KHAN Vs. RIZWANA SHEIKH

JUDGEMENT

(1.) Today, the matter has come up on an interlocutory application No.159/2018 filed by learned counsel Shri Bohra representing the petitioner for early hearing of the petition. For the reasons mentioned in the application, the prayer for early hearing is allowed. The I.A. No.159/2018 is allowed and the matter is heard finally today itself.

(2.) By way of the instant misc. petition under Section 482 Cr.P.C., the petitioner Nasir Khan has approached this Court for challenging the order dated 28.10.2013 passed by appellate court being the learned Additional Sessions Judge, No.4, Jodhpur Metro, rejecting the appeal preferred by the petitioner under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act of 2005") and affirming the order dated 13.05.2013 passed by the learned Metropolitan Magistrate No.6, Jodhpur in Criminal Misc. Case No.19/2012 whereby, the application submitted by the respondent under Section 12 of the Act of 2005 was allowed.

(3.) Facts in brief are that the petitioner was married to the respondent Smt. Rizwana in the year 2002 and a son named Rehan Khan was born from the wedlock. The petitioner is alleged to have maltreated his wife and son and finally, they were turned out of the family home in the year 2012. Thereupon, Smt. Rizwana filed the questioned application under Section 12 of the Act of 2005 in the Court of the learned Metropolitan Magistrate No.6, Jodhpur Metropolitan with various prayers including that of monetary relief. The said application was contested by the petitioner. Smt. Rizwana also moved an application for interim monetary relief under Section 23 of the Act of 2005 which was accepted by the trial court vide order dated 105.2013 and the petitioner was directed to make payment of a total sum of Rs.5, 000/- (2, 500/- each) by way of interim monthly maintenance to Smt. Rizwana and the child Rehan Khan from the date of filing of the application. The petitioner challenged the said order on numerous grounds by filing an appeal under Section 29 of the Act of 2005 which was transferred to the court of Additional Sessions Judge, No.4, Jodhpur Metro. The petitioner assailed the impugned order on merits before the appellate court. However, the contentions raised by the petitioner for challenging the trial court's order did not find favour with the appellate court and hence, the order dated 105.2013 passed by the trial court was affirmed and the appeal was dismissed by order dated 28.10.201 Now, the petitioner has approached this Court by way of the instant petition under Section 482 Cr.P.C. for assailing the impugned orders as well as the proceedings sought to be taken against him in the court of the learned Metropolitan Magistrate No.6, Jodhpur Metropolitan on the sole ground that the said court has no jurisdiction to entertain the proceedings as the jurisdiction of extending the relief sought by the respondent vests only with the Family Court by virtue of Section 7 read with Section 20 of the Family Courts Act, 1984 (hereinafter referred to as "the Act of 1984") . Though the ground of the Magistrate's court lacking jurisdiction was not raised previously but as it goes to the root of the matter and is purely a legal ground, the petitioner is allowed to raise the same for the first time in this petition under Section 482 Cr.P.C.