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2025 DIGILAW 1336 (KER)

Bindhu thomas, W/o. Biju Dominic v. Biju Dominic, S/o Chandy Dominic

2025-05-21

KAUSER EDAPPAGATH

body2025
ORDER : KAUSER EDAPPAGATH, J. What is the period of limitation for filing a Revision Petition under Section 19(4) of the Family Courts Act, 1984, before the High Court? - This is the short but important question that arises for consideration in this unnumbered Revision Petition. 2. The 1 st petitioner is the legally wedded wife of the 1 st respondent. The 2 nd petitioner and the 2 nd respondent are the children born to the 1 st petitioner in wedlock with the 1 st respondent. The petitioners and the 2 nd respondent filed a maintenance case against the 1 st respondent under Section 125 of Cr. P.C. as MC No.75/2018 before the Family Court, Pala. The Family Court, after trial, allowed the maintenance case in part and granted monthly maintenance of Rs.3,000/- to the 2 nd respondent and Rs.3,500/- to the 2 nd petitioner from the date of the petition. The claim of the 1 st petitioner for maintenance was rejected.Aggrieved by the judgment of the Family Court, the petitioners preferred the revision petition against the 1 st respondent before this Court. 3. The Registry raised an objection that there was a delay of 174 days in filing the revision petition. The revision petitioners did not file any application to condone the delay. On the other hand, the 1 st petitioner filed an affidavit explaining the reason for the delay. The Registry took the view that the limitation period prescribed to prefer revision petition under Section 19(4) of the Family Courts Act is 90 days as per Article 131 of the Limitation Act, 1963, and hence, an application to condone the delay supported by an affidavit should be filed. The revision petitioners took the stand that no period of limitation is prescribed for preferring revision under Section 19(4) of the Family Courts Act, and hence, no delay condonation application is required. Therefore, the matter was placed before the Bench. 4. Considering the importance of the question of law involved, Adv. Shajna Mullath has been appointed as Amicus Curiae. I have heard Sri. Ravi Sankar, the learned counsel for the revision petitioners and the learned Amicus Curiae. 5. Chapter IX of Cr. P.C. (Chapter X of BNSS) deals with the maintenance of the wives, children and parents. 4. Considering the importance of the question of law involved, Adv. Shajna Mullath has been appointed as Amicus Curiae. I have heard Sri. Ravi Sankar, the learned counsel for the revision petitioners and the learned Amicus Curiae. 5. Chapter IX of Cr. P.C. (Chapter X of BNSS) deals with the maintenance of the wives, children and parents. Before the enactment of the Family Courts Act, 1984, the applications under Chapter IX of Cr.P.C were dealt with by the Judicial First-Class Magistrate Courts. By virtue of Section 7(2)(a) of the Family Courts Act, the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C relating to order for maintenance of wife, children and parents became vested with the Family Court. Chapter V of the Family Courts Act deals with appeals and revisions. Sub-section (1) of Section 19 provides that 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. Sub-section (2) makes it clear that an appeal shall not lie to the High Court from an order passed by the Family Court under Chapter IX of Cr.P.C. However, the order passed under Chapter IX is revisable before the High Court under sub-section (4). The learned counsel for the petitioners Sri.Ravi Sankar submitted that Section 19(3) of the Family Courts Act prescribes a limitation period of thirty days for filing appeals, but when it comes to filing of revision under Section 19(4), it does not so provide and hence no period of limitation is prescribed for filing revision under Section 19(4). The learned counsel further submitted that going by the scheme of the Family Courts Act, the revision petition filed against an order passed under Chapter IX of Cr.P.C is not a revision that falls under Section 397 of Cr.P.C., but a revision specifically provided under Section 19(4) of the Family Courts Act and hence, Article 131 of the Limitation Act cannot be applied. On the other hand, the learned Amicus Curiae Smt.Shajna submitted that Section 10(2) of the Family Courts Act provides that the provisions of Cr.P.C shall apply to the proceedings under Chapter IX of Cr.P.C before the Family Court and hence, the revision filed against the order under Chapter IX of Cr.P.C is to be treated as one filed under Section 397 of Cr.P.C attracting Article 131 of the Limitation Act. Reliance was placed on a decision of the Division Bench of the Patna High Court in Sita Devi v. State of Bihar and Another (2012 KHC 3432) and the Full Bench of this Court in Satyabhama v. Ramachandran (1997 KHC 405) in support of her submission. The learned Amicus Curiae has also brought to my attention Rule 44 of the Rules of the High Court of Kerala, 1971 which stipulates that where no period of limitation is prescribed by any other law, the revision petition shall be presented before the High Court within 90 days of the order complained of and the decision of the Full Bench of this Court in Moideen Koya v. Kunhammed Haji (1999 KHC 397) regarding the applicability of Rule 44. 6. Before proceeding further, let me extract the relevant statutory provisions in the Family Courts Act, 1984, Criminal Procedure Code, 1973, Limitation Act, 1963 and the Rules of the High Court of Kerala, 1971. 7. Sections 7(2), 10 and 19 of the Family Courts Act: “7. Jurisdiction.—(1) Subject to the other provisions of this Act, a Family Court shall- xxx xx (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.” 10. Procedure generally.—(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 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 (2 of 1974)] 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 (2 of 1974) 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) or 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.” “19. Appeal.—(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 Courts (Amendment) Act, 1991 (59 of 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. (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 correctness, legality or propriety of the 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.” Sections 397(S.438 BNSS) and 401 (S.442 BNSS) of the Code of Criminal Procedure : “397. Calling for records to exercise powers of revision.—(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” “401. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” “401. High Court's powers of revision.—(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of Justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” Article 131 of the Limitation Act: Description of application Period of Limitation T ime from which period begins to run 131 To any court for the exercise of its powers of revision under the Code of Civil Procedure, 1908 (5 of 1908), or the Code of Criminal Procedure, 1898 (5 of 1898). Ninety days The date of the decree or order or sentence sought to be revised. Rule 44 of the Rules of the High Court of Kerala, 1971: “44. Ninety days The date of the decree or order or sentence sought to be revised. Rule 44 of the Rules of the High Court of Kerala, 1971: “44. Revision Petitions: Where no period of limitation is prescribed by any other law, a revision petition shall be presented within 90 days of the order complained of. The provisions of S.5 and 12 of the Limitation Act, 1963, shall apply to such petitions.” 8. The Family Court is a court established under Section 3 of the Family Courts Act, conferring jurisdiction of different nature as stated in Section 7. As per Section 7(1), the Family Court is conferred with jurisdiction exercisable by the District Court or subordinate Civil Court under any law for the time being in force in respect of suits and proceedings enumerated in the Explanation to the said section. As per Section 10(1), such matters are expressly directed to be tried and disposed of in accordance with the provisions contained in the Civil Procedure Code, subject to the other provisions of the Act. By the deeming provision contained in Sections 7(1) and 19(1), the Family Court, while exercising the jurisdiction in respect of suits and proceedings enumerated in the Explanation to Section 7(1), is to be deemed as the District Court or, as the case may be, the subordinate Civil Court. The second kind of jurisdiction is the one conferred under Section 7(2)(a), viz., the jurisdiction exercisable by a Magistrate under Chapter IX of Cr.P.C. While exercising such jurisdiction, the provisions of Cr.P.C or the rules made therein are made applicable as per Section 10(2) subject to other provisions of the Act. Section 19, as it stands now after amendment, provides for appeals and revisions. But before the amendment, it provided only an appeal against all orders except interim orders passed by the Family Court, irrespective of the nature of the jurisdiction exercised and the nature of the proceedings dealt with. However, as per the amendment in 1991, orders passed under Chapter IX of Cr.P.C were excluded from the purview of the appealable orders and were made revisable by the High Court under sub-section (4) of Section 19. However, as per the amendment in 1991, orders passed under Chapter IX of Cr.P.C were excluded from the purview of the appealable orders and were made revisable by the High Court under sub-section (4) of Section 19. It says that the High Court may, of its own motion or otherwise, call for and examine the record of any proceeding against an order passed by the Family Court under Chapter IX of Cr.P.C for the purpose of satisfying itself as to the correctness, legality or propriety of the order. The object for which the amendment was brought was to do away with the difference in the remedy provided against the orders passed in proceedings under Section 125 of the Cr. P.C. by the Family Court and the Magistrate in cases where the Family Court is not established. The legislative intent was to treat the jurisdiction exercisable by the Family Court and to provide a remedy of revision akin to the revision provided in the Cr. P.C. Sub-section (5) of Section 19 specifically states that, except as stated under Section 19, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. Sub-section (6) provides that an appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. The Full Bench of this Court in Satyabhama (supra) has held that while exercising jurisdiction conferred under Section 7(2)(a), the Family Court acts as a criminal court and the proceedings under Chapter IX of Cr. P.C. are criminal proceedings. 9. Sub-section (3) of Section 19 provides that every appeal under Section 19(1) shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. But no period of limitation is prescribed for preferring revision under sub-section (4) of Section 19. There is no specific provision in the Limitation Act, 1963 either that prescribes time to prefer revision under Section 19(4) of the Family Courts Act before the High Court. But no period of limitation is prescribed for preferring revision under sub-section (4) of Section 19. There is no specific provision in the Limitation Act, 1963 either that prescribes time to prefer revision under Section 19(4) of the Family Courts Act before the High Court. In the absence of any other provision either in the Family Courts Act or in the Limitation Act which governs the period of limitation to prefer revision before the High Court under Section 19(4) of the Family Courts Act, the crucial question that arises for consideration is whether the limitation of 90 days prescribed under Article 131 of the Limitation Act could be made applicable to the revision petition filed under Section 19(4) of the Family Courts Act before the High Court. The Division Bench of the Patna High Court in Sita Devi (supra) took the view that as per Section 10(2) of the Family Courts Act, the provisions of Cr.P.C would apply to all proceedings under Chapter IX and therefore what is exercised under Section 19(4) of the Family Courts Act is the power of the High Court of superintendence as contained under Section 397 read with Section 401 of Cr.P.C and hence, the period of limitation for filing revision in terms of Section 19(4) of the Family Courts Act would be 90 days as prescribed under Article 131 of the Limitation Act. 10. The Family Courts Act is a self-contained special enactment which provides a framework for resolving disputes and protecting the rights and interests of persons involved in family law related matters. Section 7 of the Family Courts Act deals with the jurisdiction of the Family Courts, and Section 10 deals with the procedure generally. Chapter V is a separate chapter set apart for appeals and revisions. Section 19(4) is a specific provision designed to address revision against the order passed by the Family Court under Chapter IX of Cr.P.C. Section 397 of Cr.P.C (S.438 of BNSS) is a general provision that applies to any criminal proceedings. When an order is passed by the Family Court under Chapter IX and a revision is desired, it must be filed under Section 19(4) of the Family Courts Act and not under Section 397 of Cr. When an order is passed by the Family Court under Chapter IX and a revision is desired, it must be filed under Section 19(4) of the Family Courts Act and not under Section 397 of Cr. P.C. Sub-section (5) of Section 19 specifically states that no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court except as stated under Section 19. Section 20 provides that the provisions of the Family Courts Act shall have overriding effect over any other law or instrument that conflicts with them. These provisions make it clear that a revision filed under Section 19(4) of the Family Courts Act cannot be treated as a revision under Section 397 of Cr.P.C., but it is a revision under Section 19(4) of the Family Courts Act. Article 131 of the Limitation Act specifies a 90-day limitation period for filing applications to any Court for the exercise of its power of revision under the C.P.C or the Cr.P.C. Since the revision filed under Section 19(4) of the Family Courts Act is not a revision filed under the Cr.P.C., Article 131 of the Limitation Act cannot be made applicable to it. 11. To arrive at the conclusion that period of limitation for filing revision in terms of Section 19(4) of the Family Courts Act would be 90 days as prescribed under Article 131 of the Limitation Act, the Patna High Court in Sita Devi (supra) relied on Section 10(2) of the Family Courts Act which says that the provisions of the Cr.P.C would apply to all proceedings under Chapter IX of Cr.P.C. I cannot subscribe to the said reasoning and consequential findings of the Division Bench of the Patna High Court. Section 10(2) only says that the provisions of Cr.P.C. shall apply to the proceedings under Chapter IX of Cr.P.C before a Family Court. However, the appeals and revisions are dealt with under a separate Chapter. Chapter V specifically provides for appeals against any judgment or order of a Family Court and revision against any order passed under Chapter IX of Cr. P.C. There is nothing in the Family Courts Act which suggests that provisions of Cr. P.C., more specifically Section 397, would apply to a revision filed before the High Court against any order passed under Chapter IX of Cr. P.C. There is nothing in the Family Courts Act which suggests that provisions of Cr. P.C., more specifically Section 397, would apply to a revision filed before the High Court against any order passed under Chapter IX of Cr. P.C. When there is a specific provision in the Family Courts Act to deal with the revision against an order passed under Chapter IX of Cr.P.C, the general provision under Cr.P.C cannot be applied. The provisions in the special law would prevail over the general law. The Full Bench in Satyabhama (supra) did not consider the question whether the revision provided under Section 19(4) of the Family Courts Act could be treated as revision under Section 397 of Cr.P.C for the purpose of applicability of Article 131 of the Limitation Act. The Full Bench only considered the issue whether the Family Court, while exercising jurisdiction conferred under Section 7(2)(a), is acting as a criminal court or not. There is no doubt regarding the proposition that the Family Court, while exercising jurisdiction under Section 7(2) of the Family Courts Act, acts as a criminal court and the proceedings under Chapter IX are criminal proceedings. However, that does not mean that provisions of Section 397 of Cr.P.C would be made applicable to a revision filed under Section 19(4) of the Family Courts Act for the reasons stated above. 12. Rule 44 of the Rules of the High Court of Kerala, 1971 provides that where no period of limitation is prescribed by any other law, a revision petition shall be presented before the Family Court within 90 days of the order complained of. A Full Bench of this Court in Moideen Koya (supra) considered the question whether the period of 90 days prescribed in Rule 44 of the Rules of the High Court of Kerala could be treated as a prescription of limitation in the matter of filing of revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the Rent Control Act). Under Section 20 of the Rent Control Act, no period of limitation is prescribed for filing a revision before the High Court against an order passed by the appellate authority under the Rent Control Act. Under Section 20 of the Rent Control Act, no period of limitation is prescribed for filing a revision before the High Court against an order passed by the appellate authority under the Rent Control Act. It was held that the provisions contained in Rule 44 of the Rules of the High Court of Kerala cannot be taken as one providing a limitation in the matter of filing a revision petition under Section 20 of the Rent Control Act. It was further held that if no period of limitation is prescribed under the law, there is no question of filing an application under Section 5 of the Limitation Act to condone the delay in filing the revision petition. It was also found that so long as no provision is made in the statute prescribing the period of limitation for filing a revision petition, it has to be taken that there is no period of limitation prescribed by law for filing a revision under Section 20 of the Act. In view of the dictum laid down by the Full Bench, Rule 44 also cannot be applied to a revision petition filed under Section 19(4) of the Family Courts Act. In short, the period of limitation mentioned either in Article 131 of the Limitation Act or Rule 44 of the Rules of the High Court of Kerala cannot be made applicable to a revision petition filed under Section 19(4) of the Family Courts Act. In the absence of such provision, it has to be held that there is no period of limitation prescribed by law for filing a revision under Section 19(4) of the Family Courts Act before the High Court. 13. The exercise of revisional power under Section 19(4) is discretionary in nature in the interest of justice. It does not confer any right on the revision petitioner but only vests power with the court. In other words, it is a privilege conferred on the revision petitioner and not otherwise. Even though there is no period of limitation prescribed for filing revision, the petitioner is expected to be diligent in invoking the revisional power under Section 19 (4). He must come to Court without undue delay, at the earliest. In other words, it is a privilege conferred on the revision petitioner and not otherwise. Even though there is no period of limitation prescribed for filing revision, the petitioner is expected to be diligent in invoking the revisional power under Section 19 (4). He must come to Court without undue delay, at the earliest. The Full Bench in Moideen Koya (supra) has held that in the absence of a specific provision for filing revision under Section 20 of the Rent Control Act, it is sufficient that an affidavit is filed by the petitioner along with the revision petition explaining the delay in filing the revision petition. In Narayanan v. Rent Controller ( 1988 (2) KLT 74 ) while dealing with Section 20 of the Rent Control Act, this court took the view that a period of 90 days should be treated as the reasonable time within which an aggrieved party should move under Section 20 of the Act and any delay thereafter has to be explained satisfactorily before the court can be requested to exercise its discretion in favour of the petitioner. The Division Bench of this Court approved the above decision of the Single Bench in Thomas v. Mukunda Menon ( 1992 (2) KLT 9 ). The Full Bench in Moideen Koya (supra) has also approved the decisions in Narayanan and Thomas (supra). Another Full Bench of this Court in Sobhanakumari K. v. Santhosh @ Pallan Shaji ( 2018 (1) KHC 195 ) while dealing with an appeal by a victim under the proviso to Section 372 of Cr.P.C. held that since no period of limitation is prescribed for appeal by a victim under the proviso to Section 372 from an order of acquittal, the victim shall bring appeal within a reasonable period of 90 days from the date of the order. It was also held that if such an appeal is filed beyond the reasonable period, the victim shall file an affidavit explaining why it could not be filed within the reasonable period. The dictum laid down in the above decisions can be made applicable to the revision filed under Section 19(4) of the Family Courts Act in the absence of a specific provision either in the Family Courts Act or in the Limitation Act governing the period of limitation for filing revision under Section 19(4) of the Family Courts Act before the High Court. 14. 14. The upshot of the above discussion is that no period of limitation is prescribed for preferring revision under Section 19(4) of the Family Courts Act before the High Court. Article 131 of the Limitation Act or Rule 44 of the Rules of the High Court of Kerala do not apply to such a revision. However, the petitioner has to bring his revision within a reasonable period of 90 days from the date of the order. If such a revision is filed beyond the said period, there is no necessity to file an application under Section 5 of the Limitation Act to condone the delay since no period of limitation is prescribed under the law. But, the petitioner shall file an affidavit explaining why he could not file it within a reasonable period. As the 1 st petitioner herein has already filed an affidavit explaining the delay, the Registry is directed to number the revision petition and post it for admission. I place on record the appreciation for the able assistance rendered by Adv. Shajna Mullath, the learned Amicus Curiae, as well as Sri. Ravi Sankar, the learned counsel for the revision petitioners.