Patna High Court - Orders
Dr. Vivekanand Sharma vs Smt. Manorma Rai @ Amrita on 23 September, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.104 of 2008
DR. VIVEKANAND SHARMA
Versus
SMT. MANORMA RAI @ AMRITA
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For the appellant: Mr. V.R.P.Singh
For the respondent : None
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PRESENT
Hon'ble the Chief Justice
And
Hon'ble Mr. Justice Kishore K. Mandal
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Dated, the 23rd September, 2008
The appeal has not been admitted so far. Therefore, we are not inclined to consider the prayer for interim relief vide IA.
No.4690 of 2008.
2. More over, from the impugned judgment of the Principal Judge, Family Court, the appeal has to be titled miscellaneous appeal and not first appeal.
3. The counsel for the appellant submits that he titled the appeal as first appeal in view of the order of this court in the case of Raj Kumar Saha v. Ritu Kala Saran, 2008(2) PLJR 211.
4. Recently, we considered this aspect in the case of Binod Thakur vs. The State of Bihar & anr. , and in our order dated 18th September, 2008, we held thus:
" Section 19 of the Family Courts Act, 1984 reads thus: -
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 2 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 an 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."
By this provision, inter alia, an appeal has been provided from every judgment or order, not being an interlocutory order, of a Family Court. Such appeal would lie to the High Court both on facts and on law. An exception to the aforesaid provision is that from a consent order or decree of a Family Court no appeal shall lie. The rest of the provision contained in Section 19 being unnecessary for the present purpose is not discussed by us. Pertinently, it may be observed that Section 19 does not provide that a judgment or order of the Family Court is appealable as a decree of the Court made in the 3 exercise of original jurisdiction. At this stage, we may consider Section 28 of the Hindu Marriage Act, 1955, which provides thus: -
"28. Appeals from decree and orders.- (1) All decrees made by the 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 decision of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceeding 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 the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order."
When Section 19 of Family Courts Act, 1984 and Section 28 of the Hindu Marriage Act, 1955 are kept side by side the material distinction in the two provisions is quite discernible. While Section 28 of Hindu Marriage Act provides that decrees made by the Court under the Act are treated as decrees made by the Court in exercise of its original jurisdiction, there is no such legal fiction provided in Section 19 of Family Courts Act, 1984.
Similarly, if we compare the provisions of Section 19 of Family Courts Act, 1984 with Section 54 of Land Acquisition Act, 1894, it may be immediately noticed that the award passed by the Civil Court in reference is deemed to be a decree and appeal is provided under section 54 of the Land Acquisition Act, 1894 as if having arisen from the original decree. Neither by any direct provision nor any legal fiction, the judgment or order of the Family Court is treated as a decree having been made in exercise of original Civil jurisdiction. Office objection is, accordingly, overruled in so far as filing of First Appeal is concerned. The other objection shall be considered at the time of consideration of appeal for admission.
4Henceforth, while processing the appeals under Section 19 of the Family Courts Act, 1984, the Stamp-reporter shall keep in mind the present order and also readily keep available the copy of this order."
5. The Stamp-reporter is directed to process the appeal afresh in the light of the aforesaid order and after processing place the matter accordingly.
6. The application for interim relief shall be considered at the time of admission of the appeal.
R. M. Lodha, CJ.
Kishore K. Mandal, J.
Neyaz/