SATEPPA BASAPPA v. KU. GEETHA — 1998 DIGILAW 492 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THIS Criminal Revision Petition has been placed before us to decide whether the order passed under Sec. 19 (4) of the Family Courts Act 1984 (henceforth in brief referred to for convenience as 'the Act' ( by the Family Court has to be challenged either as a Civil Revision Petition or as a Criminal Revision Petition and has to be disposed of by the learned single Judge of this Court under the provisions of the Karnataka High Court Act, 1961. Such a situation had occurred before the learned single Judge of this Court in view of the Full Bench decision of the Kerala High Court in the case of Sathyabhama v. Ramachandran reported in 1998 (1) Crimes 143 : (1997 Cri LJ 4306), wherein it was held that for the purpose of Sec. 19 (4) of the Family Courts Act (as amended in 1991), the Family Court acted as a Criminal Court and not as a Civil Court and in that view of the matter, the revision petitions to challenge the orders under the said provision of law has to be registered as revision petition (Family Court) liable to be disposed of by a learned single Judge under Sec. 3 (8) of the Kerala High Court Act as proceedings of a Criminal Court. The order for reference by the learned single Judge BSSRJ reads as under :"the learned counsel for the Revision Petitioner has relied on 1998 (1) Crimes 143 : (1997 Cri LJ 4306) Kerala High Court Full Bench in Sathya Bhama v. Ramachandran wherein it has been held that "application under Section 125 Cr. P. C. for maintenance - Whether Family Court acts as a Civil Court or as a Criminal Court while exercising jurisdiction under Section 7 (2) (a) of the Act and disposing of applications filed under Section 125 Cr. P. C. the Family Court acts as a Criminal Court and not as a Civil Court - Revision filed under Section 19 (4) of the Act against order passed in maintenance application are liable to be treated as revisions filed against orders passed by a Court acting as criminal Court. P. C. the Family Court acts as a Criminal Court and not as a Civil Court - Revision filed under Section 19 (4) of the Act against order passed in maintenance application are liable to be treated as revisions filed against orders passed by a Court acting as criminal Court. "in the present case on hand, office has raised objections in view of the order passed by the Bench wherein it has been ordered that after going through the provisions of the Family Courts Amendment Act, 1991 which came into force w. e. f. 28-2-1991 we find that the matter has to be registered as Civil Revision Petition and it will have to be disposed of by the learned single Judge under the provisions of the Karnataka High Court Act, 1961. We direct the Office to register the matter as Revision Petition. In view of the above, the matter has to be placed before the Division Bench to consider Full Bench decision of the Kerala High Court about the registration of the Revision Petition against the order passed under Section 125 Cr. P. C. by Family Court. " ( 2 ) IT is relevant here to mention at the outset that the Registry at the first instance had raised an Office Objection as to the very maintainability of the Criminal Revn. Petn. in the light of an unreported order/decision dt. 9-11-94 in Cr. A. No. 126/94 passed by the Division Bench wherein it was held that it was only a Civil Revn. Petn. that was maintainable under Sec. 19 (4) of the Family Courts Act. At the instance of the learned counsel for the appellant herein, Sri. Deshpande, the matter had been posted before the learned single Judge to hear on the Office objection on 25-3-98 and finally on the adjourned dt. on 2-4-98, after hearing the learned counsel for the petitioner, the learned single Judge BSSRJ had passed the orders of reference as above. ( 3 ) AS we see, the following three questions arise for our consideration in the reference : (i) Whether the revision petition filed under Sec. 19 (4) of the Family Courts Act, 1984 (as amended) in short henceforth as the Act) has to be treated and numbered as a Civil Revision Petition or a Criminal Revision Petition ? ( 3 ) AS we see, the following three questions arise for our consideration in the reference : (i) Whether the revision petition filed under Sec. 19 (4) of the Family Courts Act, 1984 (as amended) in short henceforth as the Act) has to be treated and numbered as a Civil Revision Petition or a Criminal Revision Petition ? (ii) Whether the Family Court while exercising the jurisdiction exercisable by the Magistrate of the I Class under Chapter IX (Relating to order for maintenance of the wife, children and parents) of the Code of Criminal Procedure, 1973 under Sec. 7 (2) of the Act acts as a Criminal Court ? (iii) Whether the matter had to be decided by the single Judge or the Division Bench ? ( 4 ) THE learned counsel for the petitioner Sri. Mahesh appearing along with Sri. R. B. Deshpande argued that while the Family Court acts under Sec. 7 (2) of the Act in the matter of maintenance of wife, children and parents under Sec. 125 of the Code of Criminal Procedure, it, i. e. the Family Court acts as a criminal Court. In support of that argument of his, he had drawn our attention to the very scheme of the Act in the matter of jurisdiction under Chapter III of the Act. While adverting to Sec. 7 (1) of the Act he had argued that when the Family Court exercises all the jurisdiction exercisable by the District Court or any subordinate Civil Court under any law for the time being in force in respect of the suits and the proceedings, it is the Civil Procedure Code that is made applicable to the proceedings and whereas under Sec. 7 (2) of the Act, the jurisdiction exercisable by the Magistrate under Chapter IX relating to the order of maintenance of wife, children and parents, the Criminal Procedure Code that is made applicable. In this regard he had also drawn our attention to the provision that came to be added by way of amendment to the Family Courts Act in the year 1991 by incorporating sub-sec. (4) below Sec. 19 by rearranging the original sub-sec. (4) and (5) as sub-sec. (5) and (6) respectively. It is also his submission that when the above provision of law in Sec. 19 (4) of the Act is read in conjecture with Sec. 397 (1) of Cr. (4) below Sec. 19 by rearranging the original sub-sec. (4) and (5) as sub-sec. (5) and (6) respectively. It is also his submission that when the above provision of law in Sec. 19 (4) of the Act is read in conjecture with Sec. 397 (1) of Cr. P. C. it is appreciable that both the provisions of law run in similar lines and therefore according to him it is only Criminal Revision Petition that is maintainable under Sec. 19 (4) of the Act as against the order passed under Section 7 (2) of the Act by the Family Court. In support of that limb of his argument, he had also cited before us a Full Bench decision of the Kerala High Court reported in 1998 (1) Crimes 143 : (1997 Cri LJ 4306) wherein the Full Bench of that High Court held in para 13 of the Judgment that while exercising jurisdiction under Sec. 7 (2) of the Act and disposing of the application filed under Chapter IX of Cr. P. C. , the Family Court acts as a Criminal Court and not as a Civil Court. To quote the said para No. 13 of the judgment of the Kerala High Court, the same reads as hereunder :"13. In the light of what is discussed above, we are of the view that while exercising jurisdiction under Sec. 7 (2) (a) of the Act and disposing off applications filed under Chapter IX Cr. P. C. the Family Court acts as a Criminal Court and not a Civil Court. In the circumstances, the view expressed by the Division Bench in its order dt. 10-7-97 cannot be accepted as correct. As such the revision filed under Sec. 19 (4) of the Act are liable to be treated as revisions filed against the orders passed by a Court acting as a Criminal Court and not as a Civil Court. In this view we would direct the office to number the revisions as 'r. P. (Family Court)' liable to be disposed off by a Single Judge under Sec. 3 (8) of the High Court Act as proceeding of a Criminal Court. " ( 5 ) IT is also his submission that the Division Bench ruling (unreported) of this Court in Cr. " ( 5 ) IT is also his submission that the Division Bench ruling (unreported) of this Court in Cr. A. No. 126/94 is to the effect that it is only Civil Revision Petition that is maintainable and according to him the same is not the correct law and therefore he prayed that the said decision has to be reconsidered by this Court in the light of the Full Bench decision of the Kerala High Court referred to above. ( 6 ) THE learned counsel for the appellant, Sri Mahesh had also cited before us the following decisions in support of his argument. 1) (1994) 2 Ker LJ 482; 2) (1993) 2 Ker LJ 447; 3) AIR 1965 SC 1636 ; 4) (1998) 1 Crimes 143 : (1997 Cri LJ 4306) ( 7 ) HAVING gone through the above decisions, we are of the view that the decision the one cited at Sl. No. (4), i. e. , (1998) 1 Crimes 143 : (1997 Cri LJ 4306) (Full Bench) adverted to by us above appears to be relevant here. ( 8 ) NOW we take up the three points we have formulated in para (3) above in that order. ( 9 ) REGARDING Point No. (i) We feel it proper to deal with the point by adverting to the very scheme of the Act; it requires no mention however that the Act is a self-contained code by itself in the matter of proceedings before the Family Court. It is pertinent to mention in this context that Sec. 2 (d) of the Act defines the Family Court as a Family Court established under Sec. 3 of the Act. It is also pertinent to mention here that in no part of the provisions in the Act, it had been said that the Family Court is either a Civil Court or a Criminal Court. It is also pertinent to mention here that in no part of the provisions in the Act, it had been said that the Family Court is either a Civil Court or a Criminal Court. As a matter of fact, in Chapter III in the matter of jurisdiction under Sec. 7 (1) it is provided therein that subject to other provisions of the Act, the Family Court shall have and shall exercise all the jurisdiction exercisable by District Court or any subordinate Civil Court under any law for the time being in force in respect of the suits and proceedings in the nature referred to in the explanations there below (the explanation reads that the suits and proceedings referred to in the sub-section are suits and proceedings), whereas under sub-section (2) of Sec. 7 it is provided therein that the Family Court shall also exercise the jurisdiction exercisable by the Magistrate of the I Class under Chapter IX relating to order of maintenance of wife, children and parents under the Code of Criminal Procedure. We feel it apt to quote Sec. 7 of the Act in this context and the same reads as hereunder :"7, (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 purpose 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; and (b) such other jurisdiction as may be conferred on it by any other enactment. " ( 10 ) IT is seen that Chapter IV of the Act deals with the procedure the Family Court has to follow in the matter of the proceedings under Sec. 7 (1) and further the proceedings under Chapter IX of the Code of Criminal Procedure under Sec. 7 (2) of the Act, whereas Sec. 10 of the Act speaks about the application of the Code of Civil Procedure and any other law for the time being in force in respect of the suits and proceedings and further application of the Code of Criminal Procedure, 1973 or the Rules made thereunder in the matter of proceedings under Chapter IX of the Code before the Family Court. In this regard, mention has to be made that the Family Court had been given distinctly liberty to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings before it. Secs. 9 and 10 of the Act in this regard read as hereunder :" (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. (2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings. 10. (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) of sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. " ( 11 ) IT is further seen that Section 18 of the Act deals with the execution of a decree or an order passed under S. 7 (1) of the Act and also with regard to the execution of the order passed under Section 7 (2) of the Act in the manner prescribed by the Code of Criminal Procedure in respect of the proceedings under Chapter IX of the said Code. Section 18 of the Act reads as hereunder :"18. (1) A decree or an order (other than an order under Chapter IX of the Code of Criminal Procedure, 1973) passed by a 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 as is prescribed by the Code of Civil Procedure, 1908 for the execution of decrees and orders. (2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 shall be executed in the manner prescribed for the execution of such order by that Code. (3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil Court to which it is sent for execution. " ( 12 ) ORIGINALLY the Chapter V containing the solitary Section 19 of the Act had provided for appeals only and with the passing of the Family Courts (Amendment) Act, 1991, the Parliament in its wisdom had provided both for Appeals and Revisions. With the amendment of Chapter V of the Act, in the present form, the provision under S. 19 reads as hereunder :"chapter V - Appeals and Revisions. 19. With the amendment of Chapter V of the Act, in the present form, the provision under S. 19 reads as hereunder :"chapter V - Appeals and Revisions. 19. (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory 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) (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 otherwise, 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 corrections, legality of propriety of order, not being an interlocutory 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. " ( 13 ) FROM the above provision in Section 19 (4), it is clear that an order passed under Chapter IX of the Code of Criminal Procedure, 1973 is revisable order even suo motu by the High Court. Now to turn to the impugned order hereunder challenge in the instant Cr. R. P. , it is clear that it is the order one passed by the Family Court under Section 7 (2) of the Act. But the point is, whether the same is a revisable order to be styled as Criminal Revision Petition under the Code of Criminal Procedure or to be styled as Civil Revision Petition under the Code of Civil Procedure. But the point is, whether the same is a revisable order to be styled as Criminal Revision Petition under the Code of Criminal Procedure or to be styled as Civil Revision Petition under the Code of Civil Procedure. In our considered view it is neither, for it is a revision simpliciter squarely falling under Section 19 (4) of the Act. No doubt the provision in S. 19 (4) of the Act, as we see, is an analogous provision as the one we find under S. 397 of Cr. P. C. However, the provision of law in S. 19 (4) of the Act reads that, an order is revisable by the High Court either suo motu or otherwise. That being so, it appears to us that it cannot be said that the revisable powers under S. 19 (4) of the Act vested in the High Court is a revisional power either under the Code of Criminal Procedure or the Code of Civil Procedure. In our considered view, the revisional powers of the High Court under Section 19 (4) of the Act is a revisional power simpliciter totally devoid of the revisional powers of the High Court either under the Cr. P. C. or for that matter under the C. P. C. Therefore, in our further considered view, question of giving a nomenclature to such a petition under S. 19 (4) of the Act either as a Cr. R. P. or as a C. R. P. does not arise at all and as such, such a nomenclature is a misnomer. ( 14 ) IN deciding the similar questions what are before us now in the instant Cr. R. P. , the High Court of Kerala held that while disposing of the applications filed under Chapter IX of the Cr. P. C. the Family Court acts as a Criminal Court and not as a Civil Court and further that the revisions filed under S. 19 (4) of the Act are liable to be treated as revision petitions filed against the orders passed by the Court acting as a Criminal Court and as such has to be registered as a proceedings as if of a Criminal Court. But with due respect to the learned Judges of the Full Bench of the Kerala High Court, we are but to disagree with the said view, for S. 2 (d) of the Act made it amply clear that "family Court' means a Family Court established under S. 3 and under the scheme thereof, the Family Court is vested with powers exercisable by the District Court or any other subordinate civil Court and further exercisable by the Magistrate of the First Class under S. 7 of the Act and further more, more importantly, under S. 7 (2) (b), the Family Court as well be vested with jurisdiction as may be conferred to it under any other enactment. Therefore, it appears to us that conferment of jurisdiction either of the civil Court or of the Criminal Court or for that matter of jurisdiction of any other Tribunal or under any other enactment will not change the nature of the Family Court in whatsoever manner, but to stay steadfast as "family Court" of special jurisdiction or powers vested in it under the Act. ( 15 ) THIS takes us to the order dt. 9-11-94 in Cr. A. No. 126/94 wherein the Division Bench of this Court had observed that the revision petition under S. 19 (4) of the Act is maintainable as a Civil Revision Petition. This order in fact had occasioned the learned single Judge of this Court to refer the matter to us. ( 16 ) TO decide the matter in controversy we have since secured the case records in Crl. Revn. P. No. 4150/94, originally registered as Cr. A. No. 126/94, to assist ourselves. As we see in the said case, their Lordships KBNJ and RRKJ had ordered as hereunder :"after going through the provisions of the Family Courts Amendment Act, 1991, which came into force from 28-12-91, we find that the matter has to be registered as Civil Revision Petition and it will have to be disposed of by a learned single Judge under the provisions of the Karnataka High Court Act, 1961. We direct the office to register the matter as revision petition and place it before our Lord esteemed the Hon'ble Chief Justice for orders for being posted before the appropriate Bench. We direct the office to register the matter as revision petition and place it before our Lord esteemed the Hon'ble Chief Justice for orders for being posted before the appropriate Bench. " ( 17 ) AS we further see, the above order is per incuriam inasmuch as no law has been laid down by the Division Bench in passing the same. We do not find in the order in Cr. R. P. No. 4150/94 any discussion of the provision of S. 19. That being so, the order cannot be regarded as a binding precedent upon the point. In this connection a reference may be made to a decision of the Hon'ble Supreme Court in the case of Harichand v. Director of School Education, reported in AIR 1998 SC 788 : (1998 Cri LJ 1106 ). In paras (5) and (6) of the above said decision, the Hon'ble Supreme Court observed as hereunder :"5. Learned counsel drew our attention to the order of this Court in the case of Aitha Chander Rao v. State of Andhra Pradesh, 1981 (Supp) SCC 17. The said Rao had been convicted under S. 304-A of the Indian Penal Code and sentenced to undergo two years rigorous imprisonment and pay a fine of Rs. 500/ -. On appeal to this Court against the judgment of the High Court affirming the conviction, this Court found no reason to interfere on the merits of the appeal. The only question that it considered was whether it was an appropriate case in which the appellant before it could be released on probation. The Sessions Judge had found that there was some amount of contrary negligence on the part of the said Rao. Having regard "to the peculiar circumstances of this case" it was thought to be a fit case to release the said Rao on probation. This Court added "as the appellant has been released on probation this may not affect his service career in view of S. 12 of the Probation of Offenders Act. "6. The order in the case of the said Rao was delivered on an appeal against conviction. The conviction was sustained but, having regard to the peculiar circumstances of the case, the said Rao was released on probation and it was added that "this may not affect his service career in view of S. 12 of the Probation of Offenders Act". The order in the case of the said Rao was delivered on an appeal against conviction. The conviction was sustained but, having regard to the peculiar circumstances of the case, the said Rao was released on probation and it was added that "this may not affect his service career in view of S. 12 of the Probation of Offenders Act". We do no find in the order in Rao's case 1981 (Supp) SCC 17 any discussion of the provision of S. 12 or of the meaning of words "disqualification, if any, attaching to a conviction of an offence under such law" therein. The order cannot, therefore, be regarded as a binding precedent upon the point. "the above being the position, we find it difficult to be persuaded to follow the said order of the Division Bench to hold that, as against the order under S. 19 (4) of the Act, it is the Civil Revision Petition that is maintainable. Therefore, we are of the considered view that the Revision Petition maintainable under S. 19 (4) of the Act is neither a Civil Revision Petition under the CPC nor a Criminal Revision Petition under the Cr. P. C. It is our further considered view in this regard that the revision petition under the said provision of law of the Act i. e. Section 19 (4) of the Act is a revision petition simpliciter and as such, the same has to be nomenclatured as "revision Petition (Family Court) or in brief to say 'r. P. (F. C.)'. We thus answer the point No. 1 accordingly. ( 18 ) REG. Point No. (ii) : To turn to the point No. 2, we have to answer that while the Family Court exercises its jurisdiction exercisable by the Magistrate of the I Class under Chapter IX (relating to order of maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 under S. 7 (2) of the Act, it acts neither as a Civil Court nor a Criminal Court, but the Family Court and Family Court alone with the special jurisdiction vested in it under the Act. ( 19 ) REG. ( 19 ) REG. Point No. (iii) :now we take up the third and the last point under S. 8 of the Karnataka High Court Act, the revisional jurisdiction vested in the High Court under any law for the time being in force except cases relating to quashing of orders of commitment is exercisable by the single Judge of this Court. To quote Section 8 of the Karnataka High Court Act, the same reads as hereunder :"8. Powers of single Judge to dispose of revision cases himself or refer to a Bench.- (1) Any Judge of the High Court sitting alone, shall have power to hear and dispose of civil and criminal revision cases in exercise of the revisional jurisdiction vested in the High Court under any law for the time being in force, except cases relating to quashing of orders of commitment :provided that in exercise of such revisional jurisdiction in respect of proceedings of any criminal Court such single Judge shall not impose a sentence of death or imprisonment for life or sentence of imprisonment exceeding seven years. (2) The decision or order of a single Judge in cases under sub-section (1) shall be final : Provided that such Judge may, if he thinks fit, instead of disposing of any case as aforesaid refer such case to a Bench of two Judges for hearing and disposal. " ( 20 ) HENCE, in our considered view, the revisional jurisdiction vested in the High Court under Section 19 (4) of the Act is exercisable by the learned single Judge of this Court. ( 21 ) THE reference made by the learned single Judge is therefore answered as above. The Registry under the circumstances directed to place the above matter before the learned single Judge. Order accordingly. --- *** --- .