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2004 DIGILAW 201 (MP)

ARUNA CHOUDHARY v. SUDHAKAR CHOUDHARY

2004-02-27

DEEPAK VERMA, S.K.SETH

body2004
ORDER Deepak Verma, J. This order shall govern disposal of all those Misc. Appeals the details of which have been given in Annexure-A attached herewith, as common questions of law and facts were involved in the same, thus they were heard analogously. Some of the Appeals have become time barred, mainly due to the fact that on account of perplexity, it was not known to the aggrieved parties, as to what would be the proper remedy available to them in the facts and features of the case. Since the parties had genuine difficulty in coming to a definite conclusion about the remedy available to the aggrieved parties, hence delay has been caused. Thus, delay caused deserves to be condoned. Hence all the M.C.Ps. filed in this regard, seeking condonation of delay are allowed. Delay stands condoned. All Misc. Appeals be treated to have been filed within the period of limitation. M.C.Ps. stand closed. It is necessary to capitulate brief facts of this case, so as to know as to how the matters have been placed before the Division Bench. The appellant herein, claiming to be wife of the respondent, filed an application u/s 125 of the Code of Criminal Procedure (hereinafter, for brevity shall be referred to as the 'Code') before the Family Court. After consideration of the application on merits, the Family Court, established under the provisions of the Family Courts Act, 1984 (hereinafter for brevity shall be referred to as the 'Act'), rejected the same. Feeling aggrieved by rejection of the application, the appellant initially filed a Civil Revision in the High Court of M.P. Indore Bench, registered as Civil Revision No. 828 of 2003. The same came up for admission before learned Single Judge, whereby, vide order dated 20-3-2003, it has been held as under:- As per provisions of Family Courts Act, 1984, against the impugned order passed by the Family Court, appeal lies and that will be heard by a Division Bench of High Court. Therefore this revision is not maintainable. Learned counsel for the applicant seeks withdrawal of this Revision with liberty to file appeal before the appropriate forum. Prayer is allowed. After this order having been passed by Learned Single Judge, the present Misc. Appeal u/s 19 of the Act has been filed, which is to be heard by a Division Bench, that is how the matter has been placed before us. Prayer is allowed. After this order having been passed by Learned Single Judge, the present Misc. Appeal u/s 19 of the Act has been filed, which is to be heard by a Division Bench, that is how the matter has been placed before us. Now the questions that arise for consideration of this Division Bench are:- 1. Whether against an order passed by Family Court, while deciding an application u/s 125 of the Code, an Appeal or Revision u/s 19 of Family Courts Act, 1984 would be maintainable- In case, against such an order Revision lies to High Court, then, in that case would it be a Civil Revision, Criminal Revision or any other Revision? Looking to the questions which have cropped up for consideration before this bench, we requested Mr. G.M. Chaphekar, Senior Counsel to address us as Amicus Curiae and to act as friend of the Court. He has accordingly addressed us on the aforesaid two questions elaborately along with other learned counsel appearing for parties. The relevant provisions under which appeals and revisions could be filed in High Court are contained in section 19 (Chapter-V) of Family Courts Act, 1984. For ready reference the same is reproduced hereinbelow:- APPEALS AND REVISIONS 19. Appeals. - (1) Save as provided in sub-section (2) and notwithstanding 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 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)]. Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Court (Amendment) Act, 1991]. Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Court (Amendment) Act, 1991]. (3) Every appeal under this section shall be referred within a period of thirty days from the date of 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 and pass 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 not being an interlocutory order and as to the regularity of such proceedings]; [(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. 8-A. Sub-section (4) of the section 19 has been inserted by Act No. 59 of 1991 which has come into force w.e.f. 28-12-1991. The aforesaid sub-section (4) of section 19 of the Act clearly stipulates, where application u/s 125 of the Code falling under Chapter IX is decided by Family Court, then, a Revision alone would be maintainable, provided it is not an interlocutory order. Before insertion of sub-section (4), there might have been some difficulty felt as to against an order, where, an application u/s 125 of the Code has been decided by Family Court, then, what would be the remedy available to the aggrieved party. Perusal of sub-section (4) of section 19 of the Act, now makes it clear and leaves no amount of doubt that against the order passed by Family Court deciding an application u/s 125 of the Code, Revision alone would be maintainable. The Parliament in its wisdom had felt it necessary to insert subsection (4) in section 19 of the Act to remove doubts. Though provisions of the Act have been made applicable to whole of Madhya Pradesh, but, Family Courts have not been established in whole of Madhya Pradesh. The Parliament in its wisdom had felt it necessary to insert subsection (4) in section 19 of the Act to remove doubts. Though provisions of the Act have been made applicable to whole of Madhya Pradesh, but, Family Courts have not been established in whole of Madhya Pradesh. Thus, in some part of Madhya Pradesh such power to decide application u/s 125 of the Code is still being exercised by the Magistrates, but, where Family Courts have been established, then, there such powers are being exercised by Family Courts, It is, therefore, clear that where the orders have been passed by Magistrates, deciding the application u/s 125 of the Code, then, Criminal Revision against such an order would still be maintainable u/s 397 of the Code. But, where, such an application has been decided by Family Court, then, Revision would be maintainable u/s 19(4) of the Act in the High Court and would be heard by Single Bench, as under sub-section (6) of section 19 of the Act, only those appeals which have been preferred under sub-section (1) of section 19 are required to be heard by a Bench, consisting of two or more Judges. Thus, after giving our anxious consideration to the whole matter, we are of the opinion, that learned Single Judge has erroneously held, that against such an order, Appeal would lie and would be heard by Division Bench. Bare perusal of aforesaid provisions leaves no amount of doubt in our mind, that after insertion of sub-section (4) in section 19 of the Act, only Revision would be maintainable in the High Court against an order passed by Family Court, while deciding an application u/s 125 of the Code. Under M.P. High Court Rules and Orders, section 1 of Chapter I, jurisdiction of Single Bench has been defined. Under Clause L of section 1, all Revisions are to be heard by Single Bench only except those preferred u/s 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983. For ready reference, the relevant provision is reproduced hereinbelow:- (1) An application for revision under the Code of Civil Procedure, or under any Central or State Act (other than a revision u/s 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983). For ready reference, the relevant provision is reproduced hereinbelow:- (1) An application for revision under the Code of Civil Procedure, or under any Central or State Act (other than a revision u/s 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983). Under this provision, all Civil Revisions or other Revisions under any other Central or State Act would lie only to Single Bench and it alone would be competent to decide the same. The only exception carved out is with regard to Revisions preferred u/s 19 of the M.P. Madhyastham Adhikaran, 1983. Thus, question No. 1 is answered by holding that against an order of the Family Court, deciding an application u/s 125 of the Code, a Revision alone would be maintainable u/s 19 of the Act. It may further be clarified that although section 19(4) of the Act does not prescribe any period of limitation for filing the Revision, but, as we have held that Civil Revision alone would be maintainable against such an order passed by Family Court, thus, the same period of limitation would be available to an aggrieved party, as is prescribed for filing a Civil Revision u/s 115 of the Civil Procedure Code. As far as scope of interference against such an order is concerned, the same shall however be governed only with the scope, ambit and mandate of section 19(4) of the Act and not as provided u/s 115 of the Civil Procedure Code. It is also necessary to point out here that to these proceedings, provisions of Limitation Act would also apply as the expression, "any other law for the time being in force" appearing in section 10 of the Act is comprehensive enough to include provisions of Limitation Act. Now the second question that arises for consideration is, if it is to be filed as a Revision, then, it will be registered as Civil Revision, Criminal Revision or any other Revision and is to be heard by a Single Bench or by a Division Bench? Preamble of the Act shows that it was passed with an intention to provide for establishment of Family Courts with intention to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section 7 of the Act deals with jurisdiction of Family Court. Preamble of the Act shows that it was passed with an intention to provide for establishment of Family Courts with intention to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section 7 of the Act deals with jurisdiction of Family Court. It shows that Family Court shall 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 or proceedings connected therewith. The explanation appended to section 7 gives the details of the suits and proceedings which it shall be competent to exercise. Explanation 2(A) shows that it shall have a jurisdiction exercisable by a magistrate First Class of Chapter-IX (relating to orders for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973. Section 8 deals with exclusion of jurisdiction and pending proceedings. Thus, section 7 and 8 of the Act go together. The former lays down the jurisdiction of Civil Courts in matrimonial matters and Criminal Courts in respect of maintenance cases u/s 125 of the Code. Section 10 of the Act deals with procedure, which is generally required to be followed by the Family Courts. Perusal of this section shows that Family Courts have been given powers to decide civil suits and proceedings under Chapter IX of the Code. It further says that Family Court shall be deemed to be a Civil Court and shall have all powers of such courts. Scrutiny of section 10 of the Act shows that under deeming provision, Family Court shall be deemed to be a Civil Court. Meaning thereby even if Family Court decides an application falling under Chapter IX of the Code, the procedure to be followed by Court would as prescribed under the Code but the order passed thereunder, would be deemed to be an order passed by Civil Court. Further question that arises for consideration is, whether proceedings before the Family Court initiated u/s 125 of the Code, are of criminal nature or of civil nature? Several High Courts and Supreme Court had the occasion to consider, whether maintenance proceedings initiated under the provisions of Code would be of criminal nature or of civil nature? Further question that arises for consideration is, whether proceedings before the Family Court initiated u/s 125 of the Code, are of criminal nature or of civil nature? Several High Courts and Supreme Court had the occasion to consider, whether maintenance proceedings initiated under the provisions of Code would be of criminal nature or of civil nature? The first case on which we could lay our hands on, is, reported in the matter of Subayya Gounder vs. Bhoopala Subramanian, AIR 1959 Mad 396 . In this case the Court had considered the nature and scope of provisions of section 488 of the old Code. The Court has held, that maintenance proceedings are not criminal proceedings. The object of maintenance proceedings is not to punish the husband or parent. The Magistrate's power to make an order is discretionary. On the other hand, the object of criminal procedure is always punishment; the convicted offender is made to undergo evil, which is inflicted upon him, not for the sake of redress, but, for the sake of example. The other distinctive attribute of Criminal Procedure is that the sanctions, punishments of criminal procedure are remissible by the Crown or State. In these quasi civil matters, where private parities are arrayed against each other. Ultimately, while pronouncing the judgment, jail sentence or imposition of fine cannot be passed. The other party can only be directed to pay the amount of maintenance, looking to the facts and features of each case. In the matter of Nandlal Misra vs. Kanhaiyalal Misra, AIR I960 SC 882, the Supreme Court had the occasion to deal with the provisions of section 488 of the old Code. Considering the matter Supreme Court has held that proceedings u/s 488 of the Code are of civil nature, even, though, it emanates from the provisions contained in the Code. Considering the same question, Supreme Court has held in the matter of S.A.L. Narayan Row and Another Vs. Ishwarlal Bhagwandas and Another, , as under:- The expression "Civil proceeding" is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by the statute, and claims relief for breach thereof. Ishwarlal Bhagwandas and Another, , as under:- The expression "Civil proceeding" is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by the statute, and claims relief for breach thereof. A criminal proceeding, on the other hand, is ordinarily one in which if carried to its conclusion, it may result in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehend breach of the peace; orders to bind down persons who are a danger to the maintenance of peace; an order aimed at preventing vagrancy are contemplated to be passed. The ratio of aforesaid cases, therefore, give a clear indication that proceedings for maintenance as contemplated in section 125 of the Code, would be of civil nature, as, ultimately, in the said proceedings, there cannot be an order of imposition of jail sentence or fine. The aggrieved party is granted the relief of maintenance against other spouse and nothing more than this. The term 'vagrant' is an elastic one and, as ordinarily used, no precise meaning can be attached to it, though, it may be regarded for most purposes as being synonymous with vagabond or loiterer. The purpose of provision u/s 125 of the Code, contemplates that the offending party does not continue to neglect other spouse or children or parents. The provision is not punitive in nature, but, basically, it is of civil nature so that such act may not continue to happen in future and it may set a good example for the public at large. A similar question had cropped up for consideration before the Full Bench of Kerala High Court on a reference being made to it with regard to interpretation of sections 125, 126 etc. of the Code. Kindly see Balan Nair Vs. Bhavani Amma Valsalamma and Others, . The Full Bench has held that in the proceeding u/s 125 or 126 of the Code the relief given is essentially of a civil nature and the proceedings are essentially civil proceedings and not the criminal proceedings. of the Code. Kindly see Balan Nair Vs. Bhavani Amma Valsalamma and Others, . The Full Bench has held that in the proceeding u/s 125 or 126 of the Code the relief given is essentially of a civil nature and the proceedings are essentially civil proceedings and not the criminal proceedings. The proceedings might have been described in some decisions as quasi criminal nature or quasi civil nature, but, in the considered opinion of the Full bench, it was held that they would essentially be of civil nature. They have also held that the fact that provisions occurred in Code of Criminal Procedure and not the CPC and the fact that recalcitrant opposite party, who suffers the order of maintenance and does not obey the order may have to go to prison will not change the nature of proceedings from civil to criminal proceedings. The provisions have been incorporated in the Code only with a view to expedite the proceedings as it was thought that the magistrate could better deal with the matter in a summary manner. However, another Full Bench of Kerala High Court took a somewhat different view in the matter of Satyabhama vs. Ramchandra, 1998 (1) Crimes 143. In this case, Full Bench was considering the provisions of section 7 of Family Courts Act, 1984 as also section 125 of the Code. After analyzing the relevant provisions of the Act and the Code, it has been held that Family Court is a Court established with jurisdictions of different nature i.e. to say it has jurisdiction which is exercisable by the District Court and other Subordinate Courts to be exercised in accordance with the CPC and jurisdiction exercisable by the Magistrate of a Criminal Court as per section 6 of Chapter-IX of the Code, They have, accordingly, held as under:- As a corollary we think that it must follow while exercising jurisdiction u/s 7(2)(a) in accordance with the provisions of the Criminal Procedure Code. Family Court cannot be deemed or treated as a Civil Court. The jurisdiction conferred u/s 7(2)(a) of the Act being one exercisable by a Magistrate who is a 'criminal court' as per section 6 of the Criminal Procedure Code and in accordance with the Criminal Procedure Code, we find justification to accept. Family Court cannot be deemed or treated as a Civil Court. The jurisdiction conferred u/s 7(2)(a) of the Act being one exercisable by a Magistrate who is a 'criminal court' as per section 6 of the Criminal Procedure Code and in accordance with the Criminal Procedure Code, we find justification to accept. The contention that while exercising jurisdiction conferred u/s 7(2)(A), the Family Court acts as a criminal court and not as a "Civil Court". In the subsequent Full Bench of Kerala High Court, the earlier Full Bench of same High Court between Balan Nair vs. Valsalamma was considered, but, in our considered opinion, the ratio of Supreme Court judgment in the matter of Narayanrow (supra) has not been interpreted correctly and in right perspective by the subsequent Full Bench of Kerala High Court. Infact, the reasonings adopted by the earlier Full Bench of Kerala High Court are based on more sound principles of law and by correctly interpreting the judgment of Supreme Court in the matter of Narayanrow (supra). Thus it would be proper to hold that proceedings initiated u/s 125 of the Code before Family Court, resulting in passing of an order would be of civil nature. It is further to be seen whether a revision against an order passed by Family Court exercising the right conferred on it u/s 125 of the Code, should be registered as a Criminal Revision under the Code or as a Civil Revision under the CPC or it should be nomenclatured as any other revision. Infact, the aforesaid question was precisely considered by a Division Bench of Karanataka High Court, reported in the matter of Sateppa Basappa Paschapuri Vs. Kum. Geetha, , and after analyzing various provisions of the Act as well as of the Code, it held that revision petition filed u/s 19 of the Act is neither a Criminal Revision Petition under the Code, nor a Civil Revision under the Code, but, it is only a Revision Petition simpliciter. Thus, further direction was given that it should be registered as Revision Petition (Family Court). Ultimately, it has further been held by the Division Bench that revisional jurisdiction vested in the High Court u/s 19(4) of the Act is exercisable by the learned Single Judge of the High Court. Thus, further direction was given that it should be registered as Revision Petition (Family Court). Ultimately, it has further been held by the Division Bench that revisional jurisdiction vested in the High Court u/s 19(4) of the Act is exercisable by the learned Single Judge of the High Court. Thus in our considered opinion, analyzing the legal position as it emerges after critically examining the matter from all angles, we are of the considered opinion, that the proceedings exercisable by the Family Court u/s 125 of the Code, would be of civil nature and would be amenable to revisional jurisdiction of learned Single Judge of the High Court. Under section 19(5) of the Act, order of interim maintenance under sections 24 and 25 of Hindu Marriage Act would be treated as interlocutory order, therefore, against such an order, neither appeal lies nor a Revision. The only remedy available to an aggrieved party against such an interlocutory order is to challenge the same by filing a writ petition under Art. 227 of the Constitution of India. The Supreme Court has already held that an order passed u/s 24 or 26 of Hindu Marriage Act is an interlocutory order. Since section 19(5) creates a bar of filing an appeal against an interlocutory order of such a nature, thus no appeal or revision against such an order would be maintainable. This is what has been held by Full Bench of Orissa High Court in the matter of Swarna Prava Tripathy and another vs. Dibya Singha Tripathi and another, 1998 AIHC 4573. Thus, there should not be any doubt with regard to the orders which are passed exclusively by Family Court u/s 125 of the Code and other orders which may be passed in pending matters or other matters under sections 24 and 26 of Hindu Marriage Act. Even, though, purpose of both orders may be same, i.e. grant of maintenance for the spouse, but, they are passed in separate proceedings under different Act and Code. Apart from above, one order is termed as interlocutory in nature, whereas, another order passed u/s 125 of the Code cannot be termed as an interlocutory order. For convenience and maintaining the records properly such Revisions can be nomenclatured as Civil Revision (Family Court). This position can further be clarified by making necessary amendments in High Court Rules and Orders so as to avoid any confusion in future. For convenience and maintaining the records properly such Revisions can be nomenclatured as Civil Revision (Family Court). This position can further be clarified by making necessary amendments in High Court Rules and Orders so as to avoid any confusion in future. In the light of aforesaid discussions, we hold that a Civil Revision alone would lie in the High Court to be heard by Single Judge when an order is passed by Family Court exercising jurisdiction conferred on it u/s 125 of the Code. Thus, two questions referred to above are answered accordingly. All Misc. Appeals are directed to be taken off from the register of Misc. Appeals and they be registered as Civil Revisions (Family Court), We must express out sense of gratitude to Mr. G.M. Chaphekar Sr. Advocate of this Court, who, on our request acted as an Amicus Curiae and spent his valuable time in arguing the matter before us. His superb advocacy and clarity of thoughts though already acclaimed as one of the best, has to be accepted by us also. Here it may be necessary to mention with regard to spark and potential of a young advocate, who is just at the threshold of his career, but, has impressed us immensely, is Mr. Anuj Bhargava, who has done commendable and splendid job in assisting the Court. In the light of the aforesaid discussions, both the questions are answered. Office is directed to score out all these Misc. Appeals from the Register of Misc. Appeals maintained by High Court and be registered as Civil Revisions (Family Court). Copy of the order be retained in each Appeal. Parties to bear their own costs.