A F^ HIGH COURT OF CHHATTISGARH. BILASPUR WHt Petition ( C } No.1141/2008 PBTITIONERS 1 Ajit Kumar Ninnalkai^ S/o Haiiram Nimialkar, aged about 35 yeai's, R/o 1136 L.I.G./S./New Borsi Nagar, Durg, Distnct Durg (C.G.) 2 Vishnu Prasad Niroialkar, S/o Hariram Nu-malkar, aged about 30 years, R/o ViUage : Ghumka, Tahsil and District Rajnaudgaon (QG.) Verstis Sait. Puiiiya Bai Nii-malkai^ W/o Hariraiii Nrmialkar, aged abozit 55 yeai's, (Mental Disease), Through: Next Fnend Han Shaukar Nirmatkar, GaU No. 1 Deepak Nagar, Durg, PoUce Station : Mohan Nagar, Durg (C.G.) WRIT PETITION UNDBR ARTICLB 227 OF THE CONSTITUTION OF INDIA RESPONDBNT Appeayasice : Shri Basaat Kewartiya, Counsel for fhe petitioners. ORALQRDER 122.02.2008) SUNIL KUMAR S!NHA. J. Heard on adinission. By way of this Writ Petition iiled under Article 227 of Constitution of India, the petitioners have challenged tiie validity of the order dated 01.02.2008 passed by tlie 1st Additional Pi-mcipal Judge, Family Court, Durg, m case No.412/2007, whereby, flie saicl Court rejected the objection (I.A. No.05) filed by flie petitioners/uon-applicaiits contendiiig that the proceediags under Section 125 of the Code of Ciiiniaal Procedure institiited by fhe respondent ttirough her next friend canuot be prosecuted. The brief facts ai'e that tlie petitioners are sons of ttie respondent. The respondent-mofher filed aa appUcation uuder Section 125 oftlie Code ofCriiaiaal Procedure for graiit ofmonfhly W.P.fQNo. 1141/2008 laamtenaace before flie Faro.ily Coiirt, Durg vide Case No.412/2007. The appMcation was filed tihii-ough her next frieud nainely Hariraiii Nii'matkar, who is her son-iii-'iaw. It was showu fhat the respondent was not a person of sound miad; tlierefore, she has tUed tiie appUcation fhrough her next friend. A perusal of fhe ioipugned order would show titiat the aforesaid appUcatiou was filed along witli tiie raedical reports of Dr. Menak Deb Sikaiidai' aiid Dr. A.K. Vishwas, It is iii tliis application, fhe aibresaid objection (I.A. No.5) was taken aad the same was oveiTuled. Leanied counsel for fhe petitioners submits that such appUcation should not have been entertamed by fhe Family Cozirt aad it should have been disinissed, He submits tliat ffaere does not appear any provision ia tlie Fainily Courts Act for filmg such application aiid tlie provisions of Code of CivU Procedure would not be inade applicable ui such inatters. I have heard learaed counsel for tlie petitioners at length. Chapter IV of fhe Fainily Courts Act, 1984 deals with procedure, Section 10 deals with procedure generally. Sub-section (1) provides that subject to fhe ofher provisions offliis Act aiid the rules, fhe provisions of fhe Code of Civil Procedure, 1908 (5 of 1908) aiid ofmiy other law for the time beiag io. force shall apply to tiie suits and proceediags [otiier thaa tlie proceedings under Chapter IX of the Code of Crmmial Procedure, 1973 (2 of 1974) ] before a Family Court aiid for the pui-poses oftlie said provisions of fhe Code, a FaniUy Court shall be deeined to be a civU court aad shatl have all the powers of such court. Sub-section (2) provides that subject to the other provisions of this Act and the inles, tlie provisions of the Code of Criiainal Procedure, 1973 (2 of 1974) or tlie rules made thereunder, shall apply to the proceedings under Chapter IX offhat Code before a Family Court. In the matter of Gaverdhcm. v^ Smt. Panchkunwar^ 1964 M.P.L.J. Note 68, the Madhya Pradesh High Court held that the proceediiigs under Chapter XXXVI of tiie Code of Criiniaal Procedure (as it fhen was) were ofcivil nature. In tlie said case, aii W.P.fONo. 1141/2008 29 ex-parte order of maintenaace was passed agaiiist tlie husbaad aiid fhe husband becam-e iiisaiie duruig tlie pendency of the proceediags. The Coiut held tliat fhe next friend of fhe husbaiid could file an appUcation on behalf of the iasaiie husbaad to set aside the ex-paite order. This was held ia tlie logic fhat siace the proceedin.gs under tiie said Chapter of Code of Cniniaal Procedure are ofcivil nature, such appUcation caii be entertained. In view of fhe above, I do not find aay iatiauity iii tlie impugned order passed by fhe FaiaUy Court. The petition has no nierit The same deseryres to be disinissed aiid is accordingly dismissed at the inotion stage itself. Sd/- Sunil Kumar Sinha Judge Shyna