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Rajasthan High Court · body

1995 DIGILAW 859 (RAJ)

Satya Prakash v. Premlata

1995-09-14

M.A.A.KHAN

body1995
Honble KHAN, J.– This is a revision application U/S 115 CPC against the order of the Judge, Family Court dt. 24.1.95 passed on non-petitioners application U/S 24 of the Hindu Marriage Act 1955 (the Marriage Act). (2) The husband-petitioner filed before the Family Court, Ajmer a petition U/S 13 of the Marriage Act against the wife-non- petitioner seeking dissolution of his marriage with the non- petitioner by a decree of divorce. After putting her appearance before the Court the wife-non-petitioner moved an application U/S 24 of the Marriage Act seeking maintenance pendite lite @ Rs. 500/- per month for herself and @ Rs. 300/- per month for her minor child plus traveling expenses per date of hearing and litigation expenses. After hearing the learned counsel for the parties on such application, the Judge, Family Court granted maintenance pendite-life @ Rs. 500/- per month, Rs. 700/- per trip from Hissar to Ajmer and litigation expenses at Rs. 1500/-. Aggrieved by such order of the learned Judge, the husband- petitioner has filed this revision application. (3) At the very out set Mr. Mahendra Goyal, the learned counsel for the non-applicant, raised a preliminary objection challenging the maintainability of this revision application U/S 115 CPC. The learned counsel submitted that section 19 read with Section 7 of the Family Courts Act, 1955 contemplates an appeal only from the judgment or order passed by a Family Court. In this behalf he relied upon the decision of this Court in the case of S.K. pareekvs.Smt. Shubh Laxmi Pareek(1). (4) In reply Shri B.L. Gupta, the learned counsel for the petitioner submitted that the Family Courts (Amendment) Act 1971 has extended the scope of jurisdiction of this Court and a revision application is now maintainable U/S 19(4) of the Family Courts Act. (5) Section 19 provides for the remedies available to the aggrieved party against the judgment or order passed by a Family Court. This section, after its amendment by Family Courts (Amendment) Act 1991, reads as under :– "19. Appeal.-(1) Save as provided in sub-section(2) and not withstan- ding anything contained in the Code of Civil Procedure, 1908(5 of 1908) or in the code of Criminal Procedure 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being inter-locutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974) : Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. (4) The High Court may, of its own motion or other wise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter, IX of the Code of Criminal Procedure, 1973(2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, and as to the regularity of such proceeding. (5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. (6) An appeal preferred under sub-section(1) shall be heard by a bench consisting of two or more Judges." (6) A bare reading of the provisions contained in Section 19 shows that where- as sub-Section 1 provides for appeals against the judgment or order passed by a family Court, Sub-Section (4) gives the right to the aggrieved party to prefer a revision also against an order passed by such a Court. It is thus quite clear that the remedies of appeal and revision against the judgment or order have been envisaged by Section 19. The question for consideration, however, is if both these rights co-exist and are exercisable at the option of the aggrieved party. Or they are alternate to each other leaving an option to the aggrieved party to choose the forum for the redressal of his grievance. To my mind, both the remedies are neither co-existant nor alternate to each other but are mutually exclusive and have been clearly categorized by the legislature. Or they are alternate to each other leaving an option to the aggrieved party to choose the forum for the redressal of his grievance. To my mind, both the remedies are neither co-existant nor alternate to each other but are mutually exclusive and have been clearly categorized by the legislature. (7) A close reading of sub-Section(1) of Section 19 would show that the right of appeal to an aggrieved party has been given against those types of judgment or order of the Family Court in respect of which the jurisdiction was exercisable by a District Court or a sub ordinate Civil Court only. Likewise, sub-Section (4) provides for the remedy of revision against such order s passed by the Family Court in respect of which jurisdiction was exercisable by a Magistrate of the Ist Class under the provisions of the Code of Criminal Procedure 1973. It may thus be held that there is clear cut categorisation and clarification of the judgments or orders in respect of which either of the two remedies, whether of an appeal or of a revision, is available to the aggrieved party. If a judgment or order passed by a Family Court falls within the perview of the category mentioned in sub- Section(1) of Sec.19 an appeal and not a revision would lie. But if the order passed by such court is of the nature as is contemplated by sub-section(4), then a right of revision against such order would be available to the aggrieved party. This categorisation or classification of the remedies available to the aggrieved party against the judgment or order passed by the Family Court seems to me to be based on the remedies available earlier to the aggrieved party in the relevant enactments. (8) Section 7 speaks of the sources of jurisdiction of the Family Court to pass judgments or orders under the provisions of the Family Courts Act. Section 8 excludes the jurisdiction of other Courts in the matters which fall within the jurisdictional provision of the Family Court, namely Section 7. (8) Section 7 speaks of the sources of jurisdiction of the Family Court to pass judgments or orders under the provisions of the Family Courts Act. Section 8 excludes the jurisdiction of other Courts in the matters which fall within the jurisdictional provision of the Family Court, namely Section 7. The two Sections may be reproduced here :– "(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 of 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, or success 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. (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 Section 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 Pro- cedure, 1973 (2 of 1974): (c) every suit or proceeding of the nature referred to in the Explanation to sub-Section(1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),- (i) which is pending immediately before the establishement of 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 pro- ceeding 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. (9). A combined reading of the two Sections reveals that there are two sources of the jurisdiction of the Family Court. One has its origin in those types of suits and cases the jurisdiction in which was earlier exercisable by a District Court or Subordinate Civil Court, the other in those cases wherein jurisdiction was earlier exercisable by a Magistrate First Class under the provisions of Code of Criminal Procedure 1973. Whereas sub- Section (1) of Section 7 talks of former source of jurisdiction of the Family Court and the explanation to that sub-section specifies the categories of the suits and cases contemplated in sub-section (1), sub-section (2) deals with later source. Whereas sub- Section (1) of Section 7 talks of former source of jurisdiction of the Family Court and the explanation to that sub-section specifies the categories of the suits and cases contemplated in sub-section (1), sub-section (2) deals with later source. This difference and distinction of the two sources of jurisdiction of a Family Court has again been re-asserted in Section 8 by excluding the jurisdiction of the District Court or subordinate Civil Court in the suits or cases contemplated in Section 7(1) and the jurisdiction of the Magistrate, Ist Class in ca- ses mentioned in Section 7(2) of the Family Courts Act. Again the distinction in the two sources has also affected the forum for the redressal of the grievance of aggrieved party. If the Family Court has passed a judgment or made on order in exercise of its jurisdiction u/s 7(1) read with Section 8(1), then an appeal would lie U/S 19(1). But, if the jurisdiction by the Family Court has been exercised in a matter falling within the province of sub-section (2) of Section 7 read with Section 8(2), then the remedy of revision U/S 19(4) would be available to the aggrieved party. It would thus be seen that the availability, of the remedy of either of an appeal U/S 19(1) or of a revision U/S 19(4) of the Family Courts Act depends upon the nature of the jurisdiction exercised by a Family Court in a given case. If the suit or case before the Family Court was of the nature detailed in explanation to Section 7(1) and in which jurisdiction was exerciseable by a District Court or a subordinate Civil Court under the relevant statute or enactment, then the judgment or order passed by the Family Court would give rise to an appeal U/S 19(1) to the aggrieved party and no revision U/S 19(4) against such judgment or order would be maintainable. However, if the Family Court has passed an order in exercise of its jurisdiction U/S 7(2), then a right of revision U/S 19(4) and not of an appeal U/S 19(1) would be available to the aggrieved party. (10). However, if the Family Court has passed an order in exercise of its jurisdiction U/S 7(2), then a right of revision U/S 19(4) and not of an appeal U/S 19(1) would be available to the aggrieved party. (10). The classification of the remedies in Section 19 and their dependence upon the sources of jurisdiction of the Family Court U/S 7 of the Family Court Act have their origin in the nature of the rights of the concerned persons and the remedies available to them in various and different statutes. Sections 24, 25 and 26 of the Hindu Marriage Act, 1955 give rights of maintenance to the concerned persons and the forum of redressal of grievance against orders passed under those provisions was by way of an appeal U/S 28 of the said Act to a Civil Court. Likewise, the forum provided against orders passed under Sections 18, 20 and 22 of the Hindu Adoption & Maintenance Act, 1955 was also by way of suit and appeal to a civil Court. Such rights would confer jurisdiction U/S 7(1) of Family Courts Act on the Family Court and an appeal would lie U/S 19(1) against judgment/orders passed U/S 7(1). The rights of maintenance of a Muslim Woman, Children, parents and grand parents were recognised under the Mohammedon Law and the forum prescribed for the redressal of such rights was by way of an application u/s 488 (now Sec. 125) of the Code of Criminal Procedure. The jurisdiction in respect of such matters would now lie U/S 7(2) of the Family Court and the orders passed thereunder would be revisable U/S 19(4) of the Family Courts Act. Similarly, jurisdiction U/S 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was exercisable by a Magistrate under the provisions of Wakf Act 1954. Such juris- diction would now lie with the Family Court u/s 7(2) and an order passed by it under that provision would be revisable U/S 19(4) of the Family Courts Act. Similarly, jurisdiction U/S 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was exercisable by a Magistrate under the provisions of Wakf Act 1954. Such juris- diction would now lie with the Family Court u/s 7(2) and an order passed by it under that provision would be revisable U/S 19(4) of the Family Courts Act. Similarly the nature of the rights of maintenance of persons and marriages covered by the Special Marriage Act 1955 and other similar enactments relating to the cases of the members of other different communities and the forum for exercise of such rights and for redressal of grievaness may be known from the provisions of other statutes and the source of the jurisdiction of the Family Court U/S 7 can be would determined. Thus, the nature of the jurisdiction exercised by a Family Court U/S 7 would determine the forum of redressal of grievances U/S 19 of the Family Courts Act. (11). In the instant case, the impugned order was passed by the Family Court in exercise of its power U/S 7(1) of the Family Courts Act. Section 19(1) provides for an appeal against the order passed in exercise of its jurisdiction by the Family Court under Section 7(1). No revision U/S 19(4) is therefore, maintainable against the impugned order. (12). The petition moved U/S 115 C.P.C. by the petitioner could have been trea- ted, in the interest of justice,as an appeal U/S 19(1), but for the obvious reason that it was not filed within a period of 30 days from the date of impugned order, as prescribed U/S 19(3) of the Family Courts Act. As held in the cited case, and I fully agree with that view, the impugned order which has been passed U/S 24 of the Hindu Marriage Act, 1955 cannot be termed as an interlocutory order for the purpo- ses of expression used in the language of Section 19(1) of the Family Courts Act. Even on merits of the case, I see no justification in taking a view different from that taken by the learned Judge, Family Court, Ajmer in the facts and circumstances of the case so as to ignore the forum and period of limitation in order to do substantial justice to the parties. Even on merits of the case, I see no justification in taking a view different from that taken by the learned Judge, Family Court, Ajmer in the facts and circumstances of the case so as to ignore the forum and period of limitation in order to do substantial justice to the parties. (13) In the result, since the impugned order was passed by the Judge, Family Court, Ajmer in exercise of his powers U/S 7(1) of the Family Court Act and an appeal and not a revision lies U/S 19(1) against such order, this revision petition is not maintainable and is hereby dismissed, such, with Rs. 500/- as cost to the wife-non-petitioner.