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1996 DIGILAW 16 (KER)

Saleesh Babu v. Deepa

1996-01-10

P.K.BALASUBRAMANYAN, V.V.KAMAT

body1996
Judgment :- Balasubramanyan, J. This appeal has come up before us for orders in view of the reference made by the Taxing Officer on the question of court fee payable on this appeal filed by the respondent in a proceeding before the Family Court. 2. Originally, the wife, the respondent in the appeal, initiated proceedings by way of an indigent suit for recovery of a sum of Rs. 2,11,629/ - claimed as the value of the ornaments and other assets belonging to her but appropriated by the appellant who is the husband. The proceeding was imated before the Subordinate Judge's Court of Irinjalakuda before the constitution of Family Court having jurisdiction over the area in question. On the constitution of the Family Court, the proceeding was transferred to the Family Court at Ernakulam and the proceeding was continued. Overruling the defence put forward by the husband-appellant in part, the Family Court granted the wife, the respondent herein, a decree for Rs. 1,36,875/- being the value of ornaments due to her. Since the proceeding was originally filed as a suit before the Subordinate Judge's Court of Irinjalakuda, the Family Court also ordered that the Court fee payable on the plaint would be recovered from the respondent herein in view of the fact that she was permitted to initiate the proceeding as an indigent person. 3. The husband, the respondent in the proceeding before the Family Court, has filed this appeal challenging the decree passed by the Family Court and he paid court fee on the appeal under Schedule II Article 3(III)(A)(1)(a) of the Kerala Court Fees and Suits Valuation Act. Objection was taken by the Taxing Officer to the applicability of the said Article by pointing out that what was passed by the Family Court was a decree in a suit for recovery of money which was being valued under Ss.22 and 24 of the Court Fees Act and in view of S.52 of the Court Fees Act, court fee was payable ad valorem on the amount decreed. He also took the stand that Schedule II Article 3(III)(A)(1)(a) has no application since what was appealed against was not an order but was a decree. The appellant not having accepted this position adopted by the Taxing Officer, the matter has come up before us for orders. He also took the stand that Schedule II Article 3(III)(A)(1)(a) has no application since what was appealed against was not an order but was a decree. The appellant not having accepted this position adopted by the Taxing Officer, the matter has come up before us for orders. 4.It is true that in the present case, the proceeding was originally initiated in the Subordinate Judge's Court of Irinjalakuda and was subsequently transferred to the Family Court. According to us, this fact may not make any difference on the question to be decided or the principle to be settled by us on this reference. 5. S.23 of the Family Courts Act provides for the making of Rules by the State Government after consultation with the High Court for carrying out the purposes of the Act. The Family Courts (Kerala) Rules 1989 were framed in exercise of that power. R.3 of the said Rules provides that all proceedings instituted before the Family Court shall be by way of a petition, but making an exception in regard to proceeding under the Code of Criminal Procedure. For the present purpose what is to be noticed is that, all proceedings instituted before the Family Court are by way of a petition. In such a situation, when a wife makes a claim for recovery of the value of the ornaments from her husband, going by R.3 of the Rules, that proceeding has to be initialed by way of a petition. That the proceeding is to be initiated by way of a petition is re-emphasised by R.4 and the other Rules. The question then is what is the effect of the adjudication on such a petition. S.17 of the Family Courts Act only provides for what a judgment should contain and S.18 of the Act provides that an adjudication by the Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner. S.2(e) of the Family Courts Act provides that the words and expressions used in the Act but not defined in the Act, shall have the meaning assigned to them by the Code of Civil Procedure. The word 'order' has been defined by the Code of Civil Procedure under S.2(14) of the Code, as meaning the formal expression of any decision by a civil court which is not a decree. The word 'order' has been defined by the Code of Civil Procedure under S.2(14) of the Code, as meaning the formal expression of any decision by a civil court which is not a decree. S.2(2) of the Code defines 'decree' as the formal expression of an adjudication which regards the court exercising it conclusively determines the rights of parties. Whether considered as an 'order' or a'decree', it is clear that the proceedings leading to the adjudication is by way of a petition only and the court fee payable thereon could only be the fee prescribed for an application. If treated as a decree, the Court fee payable under S.52 of the Court Fees Act for the appeal would only be the fees payable in the first instance. 6. In determining the question arising for decision, we have to bear in mind the object of the Family Courts Act. The Family Courts Act was enacted with the object of creating Especial set up for the settlement of family disputes laying emphasis on conciliation and achieving socially desirable results without adherence to rigid rules of procedure and rules of evidence. This was based on the recommendation of the Law Commission in its 59th report that in dealing with disputes concerning the family, the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings. One of the objectives of the Act is also to bring succour to women and children who have been abandoned by their husbands and fathers. In this context, when R.3 speaks of the initiation of all proceedings before the Family Court by way of a petition, it will be in consonance with the object sought to be achieved, to understand the proceeding only as a petition not warranting payment of advalorem fees under the Court Fees Act. The Court Fees Act prescribes the fee to be paid on application to be made to a court. S.7 of the Family Courts Act directs that the Family Court shall be deemed for the purpose of exercising jurisdiction under the Act, to be a District Court or other subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. S.7 of the Family Courts Act directs that the Family Court shall be deemed for the purpose of exercising jurisdiction under the Act, to be a District Court or other subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. It is therefore; clear that S.7(c) of the Act takes within its purview a suit or proceeding between the parties to a marriage with respect to the property of the parties or any of them. The claim by a wife therefore for recovery of her property from her husband, would come squarely within the jurisdiction of the Family Court and obviously in view of R.3 of the Rules by way of a petition. But S.7(1)(b) of the Act would indicate that the Family Court should be deemed as a District Court for the purpose of entertaining an application referred to in S.7 of the Family Courts Act. Since the proceeding is to a Court, which is deemed to be a District Court, and since the proceeding would commence by way of an application, it is obvious that such an application would be governed by Schedule II of the Court Fees Act. Schedule II provides for petitions under various matrimonial enactments. Obviously, a claim for return of her property by a wife against her husband does not come under any of the specific sub-clauses under Schedule II Article 1. We have therefore to look to the residuary Article (as there is no other Article applicable) to determine what is the fee payable "on such a petition. It is clear from Schedule II Article 11 (1)(2)(ii) of the Court Fees Act that the fee payable in a petition to the Family Court, which is not otherwise provided for in the Court Fees Act, would be Rs. 10/-. This is so, notwithstanding the fact that the claim in the petition involves a claim for recovery of an ascertained sum of money or specific property. If the fees payable on a petition under the Family Courts Act in respect of a claim by a wife against her husband or vice versa is governed by Schedule II Article 11 (1)(2)(ii) of the Court Fees Act, it appears to be clear to us that the court fee payable on the appeal would also be the same. 7. If the fees payable on a petition under the Family Courts Act in respect of a claim by a wife against her husband or vice versa is governed by Schedule II Article 11 (1)(2)(ii) of the Court Fees Act, it appears to be clear to us that the court fee payable on the appeal would also be the same. 7. The decisions relied on by learned Government Pleader suggesting that Schedule II Article 3 (iii) (A) (1) (a) would apply only to appeals against orders and not to appeals against judgments do not advance the case of the revenue in our view that the proceedings before the Family Court initiated by way of a petition need not be valued as a suit for money or for recovery of property and advalorem court fee need not be paid on that basis. Since no advalorem court fee is payable in the court of first instance, the fee payable in appeal would only be the same as the fee payable in the court of first instance, on the scheme of the Act. Consequently we find that the court fee payable in Appeal is only Rs. 10/-. We therefore order that the fee payable on this appeal by the appellant is only Rs. 10/-.