Allahabad High Court
Smt. Kamal Kumari vs State Of U.P. And Another on 6 November, 2013
Bench: Vineet Saran, Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 29.10.2013 Delivered on : 6.11.2013 Court No. - 36 Case :- FIRST APPEAL No. - 228 of 2013 Appellant :- Smt. Kamal Kumari Respondent :- State Of U.P. And Another Counsel for Appellant :- Indra Mani Tripathi Counsel for Respondent :- Dharmendra Dwivedi, Rajeev Misra Hon'ble Vineet Saran,J.
Hon'ble Manoj Kumar Gupta,J.
( Delivered by Manoj Kumar Gupta, J.)
1. Sri Rajeev Misra, counsel for the plaintiff-respondent, raised a preliminary objection regarding maintainability of the appeal before this Court. According to him, the decree under challenge is a decree for dissolution of marriage passed u/s.13 of the Hindu Marriage Act, 1955 (for short 'the Act'). It is therefore, appealable u/s.28 of the Act as the decree of the court made in exercise of its original civil jurisdiction. He submits that in view of it, the appeal would lie u/s.96 C.P.C. Since the valuation of the suit and the instant appeal is Rs.1000/- only, which is less than Rs.5 lacs, therefore, the appeal would lie before the District Judge, and not to this Court.
2. Sri Indra Mani Tripathi, counsel for appellant, refuting the contentions made by Sri Rajeev Misra, submitted that the appeal has been filed u/s.19 of the Family Courts Act, 1984 (for short 'Family Courts Act") and therefore, in view of section 19(1) and (6), it would lie before the High Court and is to be heard by a Division Bench consisting of two or more judges. He thus contends that it has been rightly filed before this court and is perfectly maintainable. He further submits that even if the decree is not by the Family Court, as no such court has been established at Jaunpur, but in view of object of the said legislation and particularly sections 7, 8, 19, 20 and 21, the judgement under challenge should be treated to be that of the Family Court, otherwise, it would amount to discrimination between the litigant initiating proceedings in cases where the Family Courts have been established, vis-a-vis the appellant. He has placed reliance on the following judgements :-
(a) Smt. Kiran Bala Srivastava vs. Jai Prakash Srivastava [2005 (23)LCD 1]
(b) Kode Kutumab Rao Vs. Kode Sesharatnamamba AIR 1967 (AP) 323
(c) Atindra Chandra Bhattacharjee vs. Dipali Bhattacharjee AIR 2007 (Gauhati)17
(d) Madhu Mishra vs. Additional Judge Family Court 2006 ADJ (9) 357
3. We have considered the rival submissions of the counsel for the parties and have perused the record.
4. This appeal was initially filed as First Appeal From Order (FAFO). The stamp reporter submitted a report on 5-11-2012 to the effect that "this FAFO is not maintainable". On 7-11-2012, a learned single judge of this court directed the appeal to be placed before a Division Bench as it purports to be u/s. 19 of the Family Courts Act read with section 28 of the Hindu Marriage Act. In view of it, the matter was placed before the Division Bench. By order dated 20-11-2012, a Division Bench of this Court permitted the appellant to convert the appeal from FAFO to First Appeal. The appeal was also admitted.
5. In pursuance thereof, the office permitted the appellant to convert the FAFO into a First Appeal. However, at the same time, the Stamp Reporter submitted another report dated 21-3-2013 stating that since the judgement and order dated 27-9-2012 impugned in the instant appeal, has been passed by the Additional Civil Judge (Senior Division)-II,Court No.10, Jaunpur and its valuation is less than Rs.5 lacs, therefore the appeal would lie before the District Judge and not to this Court. It has been further stated that in fact, this was the intent of the earlier report pointing out that this FAFO is not maintainable.
6. Fresh report submitted by stamp reporter was seriously challenged by the appellant as incorrect. He submitted that the stamp reporter had no jurisdiction to give such a report, once appeal has been admitted. On the contrary, counsel for plaintiff- respondent submitted that the stamp reporter had rightly pointed out that the appeal is not maintainable before this court.
7. We notice that while admitting the appeal, the question whether the appeal would lie before this Court or before the District Judge was not gone into. In view of it, irrespective of the report of the Stamp Reporter, the respondent is not precluded from raising such objection. Thus, we proceed to examine the correctness of the preliminary objection raised by the respondent.
8. Indisputably, suit was for dissolution of the marriage u/s. 13 of the Act. It thus relates to proceedings under the Act.
9. Section 28 of the Hindu Marriage Act specifies the forum to which the appeal would lie against decree or orders made by court in any proceeding under the Act. It reads as under :-
28. Appeals from decrees and orders.-(1) All decrees made by Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceedings under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.
10. Thus, decree under challenge being in relation to proceedings under the Act, is by virtue of Sec.28, appealable as decree of the court made in exercise of its original civil jurisdiction. Section 96 CPC provides that appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. The classes of courts and the forum of appeal is provided under the Bengal, Agra & Assam Civil Courts Act, 1887. Section 21 of the said Act specifies the forum before which appeal would lie from the decree or order of the civil court. Section 21 as applicable in the State of Uttar Pradesh reads as under:
21. Appeal from Civil Judges and Munsifs-
"(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie, --
(a) to the High Court in any case other than a case referred to in clause (b);
(b) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made (whether instituted or commenced before or after the relevant date) did not exceed one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may fix from time to time by notification in the official Gazette............"
11. It is not in dispute that the High court by notification in the official gazette has raised the pecuniary limit of the court of District Judge to rupees five lakhs.
12. The valuation of the suit from which the instant appeal arises was admittedly Rs.1000/- and so is the valuation of the instant appeal, both of which are less than rupees five lakh. The decree under challenge is by Civil Judge. Thus, by virtue of section 21(1) of the Bengal, Agra & Assam Civil Courts Act, 1887, it is appealable before the court of District Judge, and not before this Court.
13. A similar controversy cropped up in the case of Major Dal Chand Singh Pratap vs. Swarn Pratap AIR 1965 (All) 46. Therein, Swarn Pratap respondent filed a petition u/s.10 of the Hindu Marriage Act and in those proceedings, order passed on applications u/s. 24 and 25 was challenged by filing First Appeal From Order before this court. The petition was valued at Rs.1000/-. It was contended that the appeal would lie before the District Judge. The matter was resolved by the Full Bench of this Court holding that the valuation being less than Rs.1000/-, appeal would lie to the District Judge by virtue of provision of section 28 of the Act read with section 21 of the Bengal, Agra & Assam Civil Courts Act, 1887. Even contention of the counsel for the appellant therein that the civil judge who has passed the impugned order by virtue of special provision of section 3(b) of the Act was performing the function of "District Court" and therefore appeal would lie to this Court, was repelled, holding that the powers under the Act as 'District Court' may be exercised by the civil judge but the same would not be synonymous with the phrase "District Judge" as used in the Bengal, Agra & Assam Civil Courts Act, 1887, and appeal against such judgement of the civil judge would not lie before the High Court. The aforesaid Full Bench decision of this Court also lends support to the view taken by us above.
14. We now proceed to examine the contention of the appellant that decree of the court below should be treated as that of the family court and consequently, appeal would lie to this court.
15. The Family Courts Act, 1984 was enacted to provide for the establishment of Family court with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Section 3 of the Act provides for establishment of the Family Courts by the State Government after consultation with the High Court and which reads as under :-
(3) Establishment of Family Courts.-(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government after consultation with the High Court, and by notification,-
(a) shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court;
(b) may establish Family Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.
Section 7 of the Act relates to the jurisdiction of the Family Court which is reproduced below :-
7. Jurisdiction.-
(1) Subject to the other provision of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-- The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:--
(a) a suit or proceeding between the parties to a marriage 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 (2 of 1974 ); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
Section 8 of the Act excludes the jurisdiction of the ordinary civil judge in areas where Family Courts have been established. It reads as under :-
8. Exclusion of jurisdiction and pending proceedings.-
Where a Family Court has been established for any area,--
(a) no district court or any subordinate civil court referred to in sub- section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub- section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974 .);
(c) every suit or proceeding of the nature referred to in the Explanation to sub- section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974 ),--
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub- section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
16. A conjoint reading of the aforesaid provisions of the Family Courts Act would demonstrate that in the first instance, family courts were to be established for every area in the State comprising a city or town whose population exceeds one million. However, State has the powers to establish family courts for such other areas as it may deem necessary. These courts have been invested with all the jurisdiction exercisable by any District Court or any subordinate civil judge under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation to section 7 and are deemed for the purpose of exercising such jurisdiction 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. By virtue of section 8, no District Court or any subordinate civil judge in relation to such area, have or exercise any jurisdiction in respect of any suit or proceedings of the nature referred to in the explanation to that sub-section. Thus, with the establishment of the Family Court in any City or town or such other areas in the State as the State Government may deem necessary, such courts are invested with all the jurisdiction exercisable by any District Court in respect of suits and proceedings of the nature referred to in the explanation to section 7 and by virtue of section 8, the jurisdiction of ordinary civil judge is excluded. Even pending matters covered by explanation to sub-section (1) of section 7 and every proceedings under Ch. IX of the Cr.P.C. 1973 shall stand transferred to the Family Court on the date on which it is established.
17. Section 19 of the Family Courts Act provides the forum of appeal and it reads as under :-
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.
(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.
To attract Sec.19 of the Family Courts Act, it is essential that the decree or order is that of the Family Court. In such cases, appeal shall lie to the High Court and which is to be heard by a Bench comprising of two or more Judges. Section 19 is not attracted to cases where the decree or order is by ordinary civil judge of original jurisdiction in relation to the areas where Family Court has not been established. There, the appeal would lie as per provisions of section 28 of the Act read with section 96 C.P.C. and 21 of the Bengal, Agra & Assam Civil Courts Act, 1887.
18. Section 20 of the Family Courts Act stipulates that the provision of Family Courts Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for time being in force. However, we do not find any inconsistency in the provisions of section 28 of the Act or section 21 of the Bengal, Agra & Assam Civil Courts Act, 1887, in so far as the aforesaid provisions relate to the decree or orders passed by the civil court of original civil jurisdiction in relation to the areas where Family Courts have not been established.
19. Learned counsel for the appellant has laid much emphasis on section 8(c)(i)and(ii) of the Family Courts Act. However, the aforesaid provisions only provide for transfer of the pending proceedings of the nature referred to in the explanation to sub-section (1) of section 7 and every proceeding under Ch. IX of the Cr.P.C., 1973 to Family Court from the date it is established. In the case at hand, admittedly in District Jaunpur, no Family Court has been established till date and therefore, these clauses never got attracted.
20. Counsel for the appellant, placing reliance on section 21 of the Family Courts Act submitted that the High Court by virtue of said provision, has ample powers to entertain the instant appeal. However, the submission has no force. Under section 21 of the Act, the High Court has been conferred with powers to make rules to carry out purposes of the Act. But under guise of exercising such power, the High Court cannot arrogate upon itself the power to treat decree under challenge to be a decree passed by the family court. The contention of the appellant is wholly misconceived and cannot be accepted.
21. As regards plea of discrimination raised by counsel for plaintiff-appellant on the ground that there cannot be two different forums of appeal for similar kind of lis, the same is not sustainable in law. In areas where family courts have been established and where the decision is by such court, remedy of appeal will be available to such litigant as per provisions of the Family Courts Act. In areas where the family courts have not been established, a litigant therein cannot plead discrimination as no litigant has a right to institute a lis or file appeal before any particular forum , till such time a remedy is available. It is not in dispute that even under the Hindu Marriage Act, the remedy of filing an appeal is available to a litigant. Thus, plea relating to discrimination has no legs to stand.
22. Counsel for the respondent has placed great emphasis on the Full Bench Judgement of this Court reported in case of Smt. Kiran Bala Srivastava(supra). In that case, the question which came up for consideration before the Full Bench was whether an order passed by the Family Court in proceedings under section 24 of the Hindu Marriage Act is a judgement or order against which the appeal would lie to the High Court under section 19 or is an interlocutory not amenable to appeal. The Full Bench held that the order deciding the application for grant of interim maintenance had all the trappings of the judgement as it decides the valuable rights and liabilities of the parties and is thus, not an interlocutory order but is subject to appeal u/s. 19 of the Act. Before the Full Bench, there was no question as to the forum before which such an appeal would lie. The said judgement is therefore, of no help to the appellant. To the same effect is the judgment by Andhra Pradesh High Court in case of Kode Kutumab Rao (supra) and for the same reason does not come to rescue of the appellant. The next decision on which reliance has been placed is of Gauhati High Court in case of Atindra Chandra Bhattacharjee (supra). Therein, it was held that against a decree dismissing the suit seeking dissolution of marriage, an appeal would lie and not a revision. There is no such dispute in the present case and the said judgement is therefore, also not applicable to the facts of the instant case. The last judgement on which reliance has been placed by counsel for appellant is in the case of Madhu Mishra (supra). Therein, the Family Court has passed an order deciding the application under section 24 of the Hindu Marriage Act. Against such order, writ petition was filed before this Court. The question which arose for consideration was whether writ petition is maintainable or appeal would lie under section 19 of the Family Courts Act. It was held that the order passed under section 24 is an interlocutory order and therefore, no appeal is maintainable and writ petition would lie. The aforesaid judgement is of no help to the appellant as there is no such controversy in the instant appeal. Further, the aforesaid judgement is no more good law in view of Full Bench judgement of this Court in the case of Smt. Kiran Bala Srivastava(supra). Thus, none of the judgements on which reliance was been place by counsel for the appellant are of no any help to the appellant.
23. In view of the foregoing discussions, it is held that the present appeal would not be maintainable before this Court. However, it cannot be disputed that an appeal against the impugned judgement would lie before the court of District Judge u/s. 28 of the Act, read with sec. 96 C.P.C. and 21 of the Bengal, Agra & Assam Civil Courts Act.
24. In view of it, we are not dismissing it as not maintainable before this Court, but instead transfer the same, by invoking suomoto powers u/s. 24 C.P.C. read with sec. 21 of the Bengal, Agra & Assam Civil Courts Act, to the court of District Judge, Jaunpur, who shall decide the same itself, or transfer it to any other court of competent jurisdiction. Registry shall take necessary steps in this regard, by transmitting the record of instant appeal to District Judge, Jaunpur within a week. On receipt of record of the appeal, the District Judge, Jaunpur shall intimate the parties about receipt of record of the appeal, and thereafter proceed in accordance with law.
25. Ordered accordingly.
(Manoj Kumar Gupta, J.) (Vineet Saran, J.) Order Date :- 6.11.2013 skv