Dismissed

Mohammad Farooq v. State of U.P. and Another

Allahabad HC11 Mar 2022/534/2013

Case brief

AI extract

What is this about?

This High Court dismissed a criminal revision filed under sections 397/401 CrPC against a Family Court order. The Division Bench held that under Mohd. Nadeem vs. State of U.P., no revision lies against Family Court judgments and the alternative remedy lies under section 19(4) of the Family Courts Act. Consequently, section 482 CrPC was held inapplicable.

What did the court decide?

Revision petition dismissed with liberty to avail alternative remedy under section 19(4) of the Family Courts Act.

Mohammad Farooq Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL REVISION DEFECTIVE No. - 534 of 2013

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Revisionist :- Mohammad Farooq Opposite Party :- State of U.P. and Another Counsel for Revisionist :- M.K. Khan Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Karunesh Singh Pawar,J.

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Case called out. None appears for the revisionist. Learned A.G.A. is present.

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The revision petition has been filed under sections 397/401 CrPC against order dated 6.8.2009, passed by Judge, Family court, Faizabad in Case No. 145 of 2005 Smt. Ummatul Nisha vs. Mohammad Farooq.

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Learned A.G.A. submits that the present revision is not maintainable as a revision under section 19(4) of Family Courts Act shall lie against the order impugned in the present case. This Court in Crl. Revision No.98 of 2015 Mohammad Nadeem versus State of U.P. and another, decided on 31.3.2015 has settled the controversy that no revision shall lie against the judgment passed by the Family court under section 115 or 397 CrPC read with section 401 CrPC. Relevant para 29 is extracted below :

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" 29. Accordingly, I conclude the matter by delineating the following principles:-

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29.1 While conducting the cases under the F.C. Act, the Family Court will be deemed to be a civil court for the purpose of section 19 of F.C.Act.

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29.2 The matter referred to in section 7 of F.C. Act except the matters falling in Chapter IX of Cr.P.C. (relating to the order for maintenance of wife, children and parents) would be decided after adopting the procedure prescribed in the C.P.C

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29.3. The matter referred to in section 7 falling in Chapter IX of Cr.P.C relating to the order for maintenance of wife, children and parents would be decided after

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adopting the procedure prescribed in the Cr.P.C.

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29.4 All the final judgements and orders passed by the Family Court are amenable to appeal under sub section (1) of section 19 of F.C. Act, both on law and facts.

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29.5 No appeal shall lie from the decree and orders passed by the Family Court with the consent of the parties.

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29.6. No appeal shall lie against an order passed by the Family Court in the proceedings falling under Chapter IX of Cr.P.C. but the same would be amenable to remedy available under sub-section (4) of Section 19 of FC Act.

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29.7 If the proceedings are decided finally in terms of section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986, those proceedings shall be the proceedings under Chapter IX of Cr.P.C. and such order be also amenable to remedy available under sub-section (4) of Section 19 of FC Act.

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29.8 No petition/revision under section 19(4) of Family Court Act or under section 397 Cr.P.C. would lie against the final order passed by the Family Court deciding the application under section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. Such order would be amenable by way of appeal under Section 19 (1) of FC Act.

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29.9 No appeal shall lie against any interlocutory order passed by the Family Court nor the same would be amenable to remedy under sub-section (4) of Section 19 of F.C. Act.

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29.10.No revision shall lie against the judgement/order passed by a Family Courts either under section 115 of CPC or under section 397 read with section 401 of Cr.P.C.

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29.11 No appeal or revision shall lie against any judgement or order passed by the Family Court as provided in any other enactment, irrespective of the fact that judgement or order in proceeding under such particular Act have remedy of appeal or revision in such enactment.

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29.12 The jurisdiction to hear the appeal under section 19(1) of F.C. Act would be conferred to a Bench constituting of two or more Judges of High Court.

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29.13 The petition/revision under section 19 (4) of the F.C. Act would be decided by Single Judge of the High Court.

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29.14 Any order passed by family court would not be amenable under section 482 Cr.P.C. as the Family Court shall be deemed to be a civil court and not a criminal court subordinate to High Court within the meaning of section 482 of Cr.P.C.

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29.15 No order passed by Family Court would be amenable directly to writ jurisdiction under Article 226 of the Constitution of India in view of the law laid down by the Apex Court in Radheshyam and another Vs. Chhavinath and other in Civil Appeal No. 2548 of 2009, decided by the Apex Court on 26.2..2015.

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In view of the aforesaid judgment (supra) as also in view of the statutory remedy available under Section 19(4) of Family Court Act, the revision is

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dismissed with liberty to avail alternative remedy as per law.

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Office is directed to return certified copy of the document(s) to revisionist's counsel as per rules of the court.

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Order Date :- 11.3.2022 kkb/

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Digitally signed by KRISHNA KUMAR BARANWAL Date: 2022.03.14 18:24:26 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Mohammad Farooq v. State of U.P. and Another

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Mohammad Farooq v. State of U.P. and Another

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