S.B. Criminal Misc. Petition No.1094 of 2014

25th April, 2014

Petitioner Counsel: Mr. RAJEEV SURANA
Respondent Counsel: Mr. JITENDRA SHRIMALI, Mr. SURESH SAHNI with Mr. R.M. SHARMA

Cases Cited:
Shabana Bano Vs. Imran Khan, 2010 ALL MR (Cri) 278 (S.C.)=2009 Manu (SC) 1959 [Para 5]
Durga Lal Meena Vs. Vimla Devi Meena, 2012 Manu (RH) 1481 [Para 5]

JUDGMENT

JUDGMENT :- The petitioner has preferred this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 22.02.2014 passed by the Additional District & Sessions Judge No.8, Jaipur Metropolitan in Criminal Appeal No.96/2013 whereby the learned appellate Court by dismissing the appeal filed by the petitioner has upheld and affirmed the order dated 21.09.2013 passed by the Metropolitan Magistrate No.12, Jaipur Metropolitan, Jaipur in Complaint Case No.21/2011. By its order dated 21.9.2013, the learned trial Court granted visitation rights to the respondent to meet the minor child of the parties.

2. Brief relevant facts for the disposal of this petition are that the petitioner-wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as 'the Act of 2005') for various reliefs against her husband the respondent and his family members. During the pendency of the aforesaid application, the respondent-husband filed an application under Section 21 of the Act of 2005 praying therein that permanent custody of minor child of the parties may be given to him. In the alternative, it was prayed that visitation rights may be granted to him to meet the minor child of the parties. Vide order dated 21.09.2013, the trial Court partly allowed the application filed by the respondent and visitation rights were granted to him in the manner that he will be entitled to meet the child on first three Sundays of every month. Feeling aggrieved with the aforesaid order, the petitioner filed appeal under Section 29 of the Act of 2005, but the same was dismissed by the appellate Court vide order dated 22.2.2014. A petition for grant of decree of divorce was also filed by the respondent under Section 13 of the Hindu Marriage Act and the Family Court, Jaipur with the consent of the parties passed an order on 27.11.2013 regarding visitation right of the respondent to the effect that the petitioner will remain present alongwith the child at "Bharat Centre Samaj" Jaipur on Second Saturday of every month between 1.00 PM to 3.00 PM and the respondent will be entitled to meet the child during that period. Feeling aggrieved with the impugned order dated 22.2.2014, the petitioner is before this Court by way of this Criminal Misc. Petition.

3. During the course of hearing, learned counsel for the parties agreed that the following legal questions are involved in this petition for decision of Court:-

(1) Whether the order dated 21.09.2013 passed by the trial Court as upheld and affirmed by the appellate Court is null and void being without jurisdiction as the trial Court had no jurisdiction to entertain the application under Section 21 of the Act of 2005 and pass the order in view of the fact that the Family Court has already been established at Jaipur under the provisions of the Family Courts Act, 1984 (hereinafter to be referred to as the 'Act of 1984')

(2) Whether the order dated 27.11.2013 passed by the Family Court has overriding effect and will prevail over on the order dated 21.09.2013 passed by the trial Court as Family Court has exclusive jurisdiction to pass such order.

4. Inviting attention towards Sections 7, 8 and 20 of the Act of 1984, learned counsel for the petitioner submitted that exclusive jurisdiction has been conferred upon the Family Court established under the provisions of Act in respect of the suits and proceedings referred in the explanation to Section 7 of the Act including a suit or proceeding in relation to the guardianship of a person or the custody of or access to any minor and as it is an admitted fact that Family Court was established at Jaipur well before the Act of 2005 came into force, the Magistrate had no jurisdiction to pass an order regarding visitation rights in favour of the respondent under Section 21 of the Act of 2005 and even the application filed by the respondent was not maintainable. It was further submitted that the order dated 21.9.2013 as upheld and affirmed by the appellate Court being without jurisdiction is null and void and the order dated 27.11.2013 passed by the Family Court has overriding effect upon it more particularly in view of the fact that Family Court have all the jurisdiction exercisable by a District Court in relation to the guardianship of a person or the custody of, or access to, any minor. It was also submitted that although the Act of 2005 has been enacted subsequent to the Act of 1984 and Section 21 of the Act 2005 also have non-obstante clause but Section 20 of the Act of 1984 in very clear terms provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and therefore, when an order for visitation rights has been passed by the Family Court, it would have overriding effect on and prevail over the order dated 21.9.2013 passed by the Magistrate under Section 21 of the Act of 2005.

5. In support of his submissions, learned counusel for the petitioner relied upon the case of Shabana Bano Vs. Imran Khan reported in 2009 Manu (SC) 1959 : [2010 ALL MR (Cri) 278 (S.C.)] and Durga Lal Meena Vs. Vimla Devi Meena reported in 2012 Manu (RH), 1481.

6. On the other hand learned counsel for the respondent submitted that Section 21 of the Act of 2005 has a non obstante clause and it provides that notwithstanding anything contained in any other law for the time being in force, the Magistrate can make arrangements for visit of the child by the respondent, the order dated 21.9.2013 as upheld and affirmed by the appellate Court is still operative and effective although subsequent to it an order has also been passed by the Family Court. It was further submitted that the Act of 2005 being a subsequent enactment and Section 21 of it having non-obstante clause, it will have overriding effect on the Act of 1984 also, although exclusive jurisdiction has been conferred on the Family Court to deal with matters referred in explanation to Section 7 of the Act of 1984. It was also submitted that no objection was raised by the petitioner to the application filed by the respondent on the ground that the same is not maintainable by the reason that the Family Court being functional at Jaipur, the Magistrate has no jurisdiction to pass an order regarding custody of the child or visitation rights under Section 21 of the Act 2005.

7. I have considered the submissions made on behalf of the respective parties and also perused the material made available on record as well as the relevant legal provisions and the case law.

8. Before considering the submissions made on behalf of the parties, it would be useful to refer the relevant provisions of the aforesaid Acts, which are as below:-

Act of 1984

7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b). be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be. such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation -The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a). a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b). a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c). a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d). a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e). a suit or proceeding for a declaration as to the legitimacy of any person;

(f). a suit or proceeding for maintenance;

g. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act a Family Court shall also have and exercise;

(a). the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure 1973 (2 of 1974); and

(b). such other jurisdiction as may be conferred on it by any other enactment.

8. Exclusion of jurisdiction and pending proceedings. -Where a Family Court has been established for any area:

(a). no district Court or any subordinate Civil Court referred to in sub-section (1) of Sec. 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;

(b). no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c). every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Sec. 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)-

(i) which is pending immediately before the establishment or such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and

(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established;

20. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Act of 2005

21. Custody orders.-Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

26. Relief in other suits and legal proceedings.-(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act

(2) Any relief referred to in sub-section (1) may be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

9. The Family Courts Act was enacted with effect from 14.9.1984 with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. The purpose of enactment was essentially to set up Family Courts for the settlement of family disputes, emphasising on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. In other words, the purpose was for early settlement of family disputes. The Act, inter alia, seeks to exclusively provide within jurisdiction of the Family Courts the matters relating to the guardianship of a person or the custody of or access to any minor.

10. A bare perusal of Section 20 of the Act 1984 makes it crystal clear that the provisions of the Act shall have overriding effect on all other enactments in force dealing with the issue of custody of a minor.

11. Under section 21 of the Act 2005 independent remedy has not been provided to seek custody of the minor child and jurisdiction has been conferred on the Magistrate to grant temporary custody of such a child to the aggrieved person during the course of hearing of an application for grant of protection order or for any other relief under the provisions of Act whereas under the provisions of the Act of 1984 any person can file an independent suit or proceeding in relation to the guardianship of the person or custody of or access to any minor. Thus, the scope of Act of 1984 is much wider in comparison to Section 21 of the Act of 2005. As the non-obstante clause used in Section 21 of the Act of 2005 does not refer to any particular statute or provision or provisions of a particular statute and rather it is general in nature, the Court has to determine the scope of its use very strictly. The law is that when a non obstante clause is used in the aforesaid fashion, the extent of its impact has to be found out on the basis of consideration of the intent and purpose of insertion of such a clause. When a non obstante clause is used in such a blanket fashion the Court has to determine the scope of its use very strictly. Section 8 of the Act of 1984 confers exclusive jurisdiction upon the Family Court in relation to the suits and proceedings of the nature mentioned in explanation to Section 7 of the Act. Although, Section 21 of the Act of 2005 also contains the non obstance clause, but the same has limited application and despite being subsequent legislation it cannot have overriding effect on the Act of 1984. When both the enactments have the non obstante clause then in that case the proper perspective would be that one has to see the subject and dominant purpose for which the special enactment was made and in case the dominant purpose is covered by the contingencies, then notwithstanding that the Act might have come at a later point of time still the intention can be ascertained by looking to the objects and reasons. The Act of 1984 was specially meant for establishment of special Courts so that matters referred in explanation to Section 7 of the Act can be dealt by the special Courts established for that purpose whereas the object of enactment of the Act of 2005 was to protect the woman from being victim of the domestic violence and to prevent the occurrence of domestic violence in the society.

12. Looking to the fact that Family Court has already been established at Jaipur, the application filed by the respondent for the custody of the child or in the alternative to grant visitation rights in his favour was not maintainable under Section 21 of the Act of 2005 and the order dated 21.9.2013 as upheld and affirmed by the appellate Court was null and void being without jurisdiction although no objection was raised on behalf of the petitioner against the maintainability of the application. It is well settled that every order passed by a Court without jurisdiction is null and void from the very beginning and it is of no effect and is non operative. Apart from that when subsequent to the aforesaid order, order dated 27.11.2013 was passed by the Family Court, with the consent of the parties it will have overriding effect on and prevail over on the order dated 21.9.2013.

13.Consequently, the petition is allowed and the order dated 21.09.2013 as upheld and affirmed by the Appellate Court is set aside.

Petition allowed.