Patna High Court - Orders
Sita Devi vs The State Of Bihar & Anr on 16 April, 2012
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.113 of 2012
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Sita Devi W/O Sivendra Mehta Resident Of Village- Amari Kukran, P.O.-
Kukran, P.S.- Dhandaha, District- Purnea.
.... .... Petitioner
Versus
1. The State Of Bihar
2. Sivendra Mehta S/O..................... Resident Of Village- Amari Kukran,
P.O.- Kukran, P.S.- Dhandaha, District- Purnea.
.... .... Respondents
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Appearance:
For the Petitioner:- Mr. Dineshwar Mishra,
Mr. Anurag Kumar
Mr. Surendra Mishra, Advocates.
For the Opposite Parties:- Mr. B.P.Tiwary, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD
SINGH
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR
SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
2 16-04-2012Two questions have been referred to Division Bench by learned Single Judge of this Court.
1) "Whether the limitation of 90 days as prescribed under Section 131 of the Limitation Act, 1963 shall be applicable in cases where the revision application is filed under Section 19(4) of the Family Courts Act, before the High Court.
2) What would be the effect of Section 10(2) read with Section 19(4) of the Family Courts Act as far as the matter of time prescribed for filing a revision application before the High Court is concerned."
The facts leading to the present reference, only in so far as Patna High Court CR. REV. No.113 of 2012 2 (2) dt.16-04-2012 2 /12 relevant for disposal of the reference, is as under.
It appears that due to matrimonial discord the petitioner allegedly has been deserted by her husband. In course of time the petitioner made an application under Section 125 Cr.P.C. to the Principal Judge, Family Court, Purnea claiming maintenance. The same was allowed. Thereafter, an application was filed in the said proceeding being Matrimonial 40 of 1999 claiming enhancement because of subsequent events. In terms of Section 127 of Criminal Procedure, by order dated 04.12.2010, the learned Principal Judge, Family Court, Purnea enhanced the maintenance from Rs.2,500/- to Rs.4,000/- per month as against Rs.12,000/- per month sought by the petitioner. It is against this order that the present revision application was filed in this Court on or about 24.01.2012 which would be more than a year after the order was passed. Upon this application being filed, the Stamp Reporter raised an objection that this revision was barred by limitation treating the period for filing revision as 90 days, as in the case of applications under Section 397 read with Section 401 Cr.P.C. This has been contested by the petitioner primarily on the ground that this is an application in terms of Section 19(4) of the Family Court Act, 1984 and not an application in terms of Section 397 and 401 Cr.P.C. Accordingly, it is submitted that Article 131 of the Patna High Court CR. REV. No.113 of 2012 3 (2) dt.16-04-2012 3 /12 Limitation Act which provides for limitation for filing civil revision or criminal revision would not apply and what would apply would be Article 137 of the Limitation Act which prescribes a period of three years where no other period is prescribed. It is under these circumstances when the matter was taken up before the learned Single Judge, the learned Single Judge formulated the questions as noted above and referred to Division Bench for authoritative opinion.
We have heard the learned counsel for the petitioner and counsel for the State at length.
Learned counsel for the petitioner submits, apart from what has been noticed above, that Section 19(3) of the Family Court Act provides for a period of limitation of 30 days in respect of filing of appeals but when it comes to filing of criminal revision application u/s 19(4) it does not so provide. The intention of the legislature must have been not to provide for any limitation or at best in such situation it would be article 137 of the Limitation Act that could apply and therefore his application could not be said to be barred by limitation.
Having considered the matter, in our view, the submissions made by the learned counsel for the petitioner is not on sound footing and does not appear to be correct. The reasons Patna High Court CR. REV. No.113 of 2012 4 (2) dt.16-04-2012 4 /12 are noted hereunder.
The first thing that we would like to point out that we are dealing with four legislative enactments. The first is the general procedural law in relation to criminal matters, i.e., the Code of Criminal Procedure. The second is the provisions of the Hindu Marriage Act, 1955 which creates right, duties and obligations in respect of Hindus and their marriage. Then we have the Limitation Act. This Limitation Act, we must note at the very outset, applies to this Court and courts below. Then we have the Family Courts Act, 1984.
Before Family Court Act, 1984, the aspect of marriage, annulment thereof, dissolution thereof and consequences thereof were exclusively dealt with by the Hindu Marriage Act and the suits were filed as per the jurisdictions under the Code of Civil Procedure. There were different matters which were dealt with by different enactments. For example matters of maintenance of a spouse that has been provided under Section 24 of the Hindu Marriage Act and is also contained within Section 125 of the Criminal Procedure Code. There are different enactments by virtue of which a matrimonial dispute or consequences thereof were taken to different courts. It appears that the legislature considered it appropriate that there should be a centralized court which should Patna High Court CR. REV. No.113 of 2012 5 (2) dt.16-04-2012 5 /12 deal with all such matters so that parties are not harassed before different forums for different things. The Family Courts Act, 1984- thus was enacted. One of the purposes of the Act is to consolidate and bring under one court various disputes of matrimonial in nature. Thus, so far as maintenance is concerned and appeal or revision there of which are both subject matter of Hindu Marriage Act and the Code of Criminal Procedure have been brought under the jurisdiction of one court. The substantive rights under the Hindu Marriage Act or the Code of Criminal Procedure remain unaltered. The only change in this limited regard is the forum, otherwise, the substantive rights remain intact. The remedies under the Code of Civil Procedure in so far as the proceeding under Hindu Marriage Act are concerned or under the Code of Criminal Procedure so far as maintenance is concerned as the legislature had provided for a single forum it had to modify those procedures. Keeping in mind these aspects of the matter if we now re-visit the provisions of the Family Court Act we would appreciate the changes made therein. For this purpose we may first quote Sections 10 and 19 of the Family Courts Act which is as follows:-
"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 Patna High Court CR. REV. No.113 of 2012
6 (2) dt.16-04-2012 6 /12 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.] (3) Every Appeal under this section shall be preferred 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 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 Patna High Court CR. REV. No.113 of 2012 7 (2) dt.16-04-2012 7 /12 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."
Now we must refer to the provisions of Section 10 of the Family Court Act. If we read sub-section 1 of Section 10 thereof we would find that what it provides is that the provisions of Code of Civil Procedure and the Code of Criminal Procedure are applicable to the proceedings before the Family Court as it is dealing both with matters arising from inter-alia the Hindu Marriage Act which are civil proceedings and matters arising inter-alia out of Section 125 of the Code of Criminal Procedure which are criminal proceeding but as the forum is singular, i.e., the Principal Judge being a District Judge level officer certain things had to change. Ordinarily, in a civil proceedings from a judgment or a decree of the Munsif being the first court of original jurisdiction an appeal lies, depending upon circumstances to the Sub Judge or as the case may be to the District Judge. The period of limitation of that appeal would be 30 days in terms of Article 116(b) and if it had to be an appeal to the High Court it would 90 days in terms of Article 116(a) of the Limitation Act but as it was Patna High Court CR. REV. No.113 of 2012 8 (2) dt.16-04-2012 8 /12 a first appeal under section 19(3) of the Family Courts Act and the legislature intended that it ought to be preferred expeditiously. Now if we refer to section 19(1) of the Family Courts Act we find that an appeal lies to the High Court from every judgment or order of the Family Court notwithstanding the provisions of C.P.C or Cr.P.C. The provisions of C.P.C. and Cr.P.C. are thus modified to that extent in respect of the matters under the jurisdiction of Family Courts. Then we notice section 19(2) which restricts the right to appeal in matters of orders under Chapter IX of Cr.P.C. [sections 125 and 127]. By Section 19(3)of the Family Court Act, the legislature provided that in cases of appeals to the High Court they are required to be filed within 30 days. That is the reason for making a provision like Section 19(3) in the Family Court Act to override the 90 days as provided under Article 116(a) of Limitation Act. Apparently, when we come to the criminal proceedings which are now covered by Section 19(4) of the Family Courts Act, there being no such time period prescribed in the Family Court Act, which has given learned counsel for the petitioner inspiration to argue that whereas in sub-Section 3 of Section 19 a period is prescribed but nothing is prescribed 19(4) there is no period of limitation and thus by virtue of Article 137 of the Limitation Act the period for filing revision would be three Patna High Court CR. REV. No.113 of 2012 9 (2) dt.16-04-2012 9 /12 years. We are afraid this is not correct. In this connection we must refer to Section 29(2) of the Limitation Act which is quoted herein under.
"29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
The rule embodied under Section 29(2) of the Limitation Act is what is commonly knows as "generalia specialibus non derogant"- general must give way to special. What Section 29(2) of the Limitation Act provides is that where there is a special provision in any law then that would prevail over the provisions of the Limitation Act. Thus, where the legislature wanted to reduce the period available for filing the appeal which, as noticed above, would be 90 days to the High Court, they accordingly in the Family Court Act provided that the appeal to the High Court would be filed within 30 days in terms of Section 19(3) of the Act. So far as Section 19(4) is concerned the legislature while conferring Criminal Revision Jurisdiction on the High Court did not intend to provide for any change. Therefore, no period is Patna High Court CR. REV. No.113 of 2012 10 (2) dt.16-04-2012 10 /12 separately specified and hence the provision of the Limitation Act would govern and that being so in terms of Article 131 it would be 90 days.
It is then argue that Article 131 of the Limitation Act applies to revision under Code of Criminal Procedure and not revision as contemplated under Section 19(4) of the Family Court Act. In our view this submission is not correct. As pointed out above, a reference to Section 10(2) of the Family Court Act would show that the legislature had provided that subject to the provisions of the family Court Act, the provisions of the Code of Criminal Procedure would apply to all proceedings under Chapter- IX of the Code of Criminal Procedure Chapter-IX inter-alia contains Sections 125 and 127. If that were so and left untouched then, by virtue of Section 397 of the Code of Criminal Procedure an order passed by the Family Judge under Section 125 or for that matter 127 Cr.P.C. would become revisable by the High Court and the Sessions Judge. The legislature obviously did not want this because the Principal Judge, Family Court is of the level of District & Sessions Judge himself. Therefore, to eliminate the powers of the Sessions Court from Section 397 of the Cr.P.C. it became necessary to provide for the revisional power under the Family Court Act itself. The power that is being exercised under Patna High Court CR. REV. No.113 of 2012 11 (2) dt.16-04-2012 11 /12 Section 19(4) by the High Court is nothing but the power of revision under Section 397 read with Section 401 of the Code of Criminal Procedure. The only difference is that the power conferred on the Sessions Judge under 397 is excluded. Thus, what is exercised under Section 19(4) of the Family Court Act is the power of the High Court of superintendence as contained under Section 397 read with Section 401 of the Code of Criminal Procedure and it is because of that Article 131 of the Limitation Act would apply to such revisions and not Article 137 of the Limitation Act.
Thus, in our view, the answer to the first question as referred to would be that the period of limitation for filing revision in terms of Section 19(4) of the Family Court Act would be 90 days as prescribed under Article 131 of the Limitation Act and to the second question the answer would be that Section 10(2) and Section 19(4) of the Family Court Act are complementary provisions, which in effect only restricts the powers of the Sessions Court to exercise Criminal Revisional Jurisdictions, otherwise the jurisdiction and the power exercised by the High Court under Section 19(4) by virtue of Section 10(2) would be of Section 397 read with Section 401 of the Code of Criminal Procedure, which is nothing but a power of a superintendence.
Patna High Court CR. REV. No.113 of 2012 12 (2) dt.16-04-2012 12 /12 Reference thus being answered let the case records be remitted to the learned Single Judge for proceeding in accordance with law with liberty to the petitioner to file appropriate application, if so advised for condonation of delay which would be considered upon its own merits by the court in seisin of the matters.
(Navaniti Prasad Singh, J) (Ashwani Kumar Singh, J) Brajesh Kr./-