JUDGMENT D.K. Seth, J.
1. This is an application for transfer of a proceeding under Section 125, Cr.P.C. pending before the Family Court, Bareilly, under Section 24 of the Code of Civil Procedure.
2. The ground that has been made out in the application is that the applicant had been threatened and abused while participating in the proceeding before the Family Court and that he has certain inconvenience on account of his handicapped brother who is dependent on him. He has sought for transfer on these grounds.
3. Learned Counsel for the applicant has pointed out from paragraph No, 13 of the rejoinder affidavit that the applicant had denied the allegations made in the counter affidavit. According to him in the facts and circumstances of the case the proceedings should be transferred from Bareilly to Meerut.
4. Mr. B. Dayal, learned Counsel for the opposite party on the other hand contends that the petitioner is husband, while opposite party is wife. Therefore, convenience of the husband should hot be over-weighed than that of the wife. Apart from the said ground, the petitioner himself initiated divorce proceeding under Section 13 of the Hindu Marriage Act in the Family Court, Bareilly which however was withdrawn subsequently after an order of maintenance was passed on 14.9.1993. He has also pointed out that the alleged abuse was made on 6.10.1993 while the petitioner had withdrawn the suit itself on 14.9.1993.
5. The allegations are disputed by the parties. This Court cannot enter into those disputed questions of facts in such a proceeding when there are certain discrepancies in the allegation itself. In the counter affidavit it has been pointed out that on the date i.e. 6.10.1993, the brother of the wife-opposite party, was on duty and therefore, he could not have abused the petitioner on the date mentioned. Then again the fact remains that the petitioner himself con tested at Bareilly by filing his own divorce suit. The very withdrawal of the divorce suit on the same day when the order of maintenance was passed shows that the petitioner was not inclined to maintain the wife and pay the maintenance. It is alleged in the counter affidavit, that despite the order of maintenance, no maintenance has been paid to the wife by the petitioner. This fact has not been denied in die rejoinder affidavit. Filing of divorce petition at Bareilly by the petitioner has also not been denied in the counter affidavit while dealing with the said allegation made in the counter affidavit. By reason of the order of stay passed in the present proceeding, the proceeding under Section 125, Cr.P.C. stayed and could not proceed. This also indicates the aim and object of the petitioner aimed at in frustrating the payment of maintenance to his wife. In addition, the grounds made out in the application for transfer does not appear to be sufficient to satisfy the test laid down in Section 24 of the Code of Civil Procedure for transfer. Despite vehement argument, I have not been able to pursuade myself to agree with the contention of the learned Counsel for the applicant.
6. It is contended on behalf of learned Counsel for the opposite party that the proceeding which has been sought to be transferred being a proceeding under Section 125 of the Code of Criminal Procedure, the same cannot be transferred in exercise of power conferred under Section 24 of the Code of Civil Procedure. The proceeding being a proceeding under the Code of Criminal Procedure the same is governed by the procedure thereof.
7. It appears that there are substance in the submission of learned Counsel for the opposite party. Admittedly, the proceeding is pending before the Family Court. By reason of Section 7(2) of the Family Courts Act, 1984, "the jurisdiction exercisable by a Magistrate of First Class under Chapter-IX (relating to the order for maintenance of wife and children and parents) of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) shall be exercised by the Family Court subject to other provisions of the said Act. Section 8 of the said Act excludes the jurisdiction in respect of proceeding under Chapter-IX even in respect of pending proceeding". Clause (b) of Section 8 provides that "no Magistrate shall in relation to such area, have or exercise any jurisdiction or power under Chapter-IX of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974); and by reason of Clause (c)" every proceeding under Chapter-IX of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) subject to the conditions mentioned in Clause (i) or (ii) thereof shall stand transferred to the Family Court on its establishment. Thus proceeding under Section 125 may be tried by a Family Court which is a predominately a Civil Court. But in order to determine as to whether Section 24 of the Code of Civil Procedure would be applicable for transfer of such proceeding, is to be tested having regard to Section 10 of the said Act, which prescribes the procedure. Though both the procedure prescribed by the Code of Civil Procedure and that of Chapter-IX of the Code of Criminal Procedure are being dealt with by the the same Court, but for the purposes of these two kinds of procedures in order to determine the nature of the Forum, it is necessary to refer to me procedure applicable to it. Section 10 provides that the procedure contained in the Code of Civil Procedure would apply to the suit and the proceeding before the Family Court and for such purpose the Family Court "shall be deemed to be Civil Court and shall have all powers of such Court". But Sub-section (1) of Section 10 carves out an exception incorporated in Sub-section (1) providing "other than proceeding under Chapter-IX of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974)". Therefore, Sub-section (1) excepts the proceeding under Chapter IX of the Code of Criminal Procedure. The said exception has to be governed by the provisions of Code of Criminal Procedure by reasons of Sub-section (2) which provides "the provision of Code of Criminal Procedure, 1973 (Act No. 2 of 1974) or the rules made thereunder shall apply to the proceeding under Chapter IX of that Code before the Family Court". Similarly Section 18, as also in Sub-section (1) makes the distinction in respect of proceeding under Chapter IX of the Code of Criminal Procedure for the purposes of execution of the decree on the order passed by a Family Court. The orders passed by the Family Court under Chapter-IX of the Code of Criminal Procedure is to be executed by reason of Sub-section (2) of Section 18 in the manner prescribed for execution in the Code of Criminal Procedure. Section 19 of the said Act makes similar distinction in respect of a proceeding under Chapter-IX in Sub-section (2) which provides that no appeal shall lie from the order passed under Chapter-IX of the Code of Criminal Procedure. Thus, however, under Sub-section (4) High Court may revise the order under Chapter-IX of the Code of Criminal Procedure.
8. Thus it is apparent that the application of provisions of the Code of Criminal Procedure in respect to the proceeding under Chapter-IX is subject to the provisions contained in the said Act. The only exception to the provision contained in me Code of Criminal Procedure in respect to proceeding under Chapter-IX of Code of Criminal Procedure is with regard to the appeal provided under Section 9 and revision. From the scheme of the Act there is no other restriction or exception with regard to the application of provision of Code of Criminal Procedure in a proceeding under Chapter-IX before the Family Court or its application in respect of an application for transfer before the High Court. In that view of the matter when provision of the Code of Civil Procedure is not applicable in a proceeding under Chapter-IX of the Code of Criminal Procedure and the provision of the Code of Criminal Procedure is applicable in respect of such proceeding, and appeal under Section 9 has been excepted in respect thereof the High Court may assume power to transfer such proceeding from one Court to another only under the provision of Code of Criminal Procedure. The provision of Code of Civil Procedure cannot be applied in absence of any express specific provision in the said Act to the extent of its non-applicability, as has been provided in respect to appeal or revision by Section 19. The provision of Section 24 of the Code of Civil Procedure cannot be resorted to. Such an application for transfer can be made only under the provision of Code of Criminal Procedure which in Section 407 provides such power to the High Court.
9. Thus the application under Section 24 of me Code of Civil Procedure cannot be maintained for the purposes of transfer of a proceeding under Section 125 pending before the Family Court. Though it could have been maintained under Section 407 of the Code of Criminal Procedure.
10. The application is, therefore, dismissed. The interim order shall stand discharged. Learned Family Court is expected to decide and dispose of the proceeding as early as possible within a period of six months from the date of production of certified copy of this order before him. However, the wife shall not take any adjournment. Any adjournment obtained by the wife shall be excluded from the period of six months mentioned above.