Bombay High Court
Nirmala Brian Tavares Alias Nirmala ... vs Brian Rudolph Tavares on 22 February, 2022
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH
SHIVGAN
SHIVGAN
Date:
7-AO-744-2019.odt
2022.02.22
16:54:21
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.744 OF 2019
WITH
INTERIM APPLICATION NO.2682 OF 2020
WITH
CIVIL APPLICATION NO.886 OF 2019
WITH
CONTEMPT PETITION NO.162 OF 2021
Nirmala Brian Tavares ...Appellant
Vs
Brian Rudolph Tavares ...Respondent
...
Mr. Abhijit Sarwate i/by Mr. Ajinkya Udane for the Appellant and for Applicant in CAA 886 of 2019 and for Respondent No.1 in CP 162/2021.
Mr. Y.R.Singh for Respondent in AO/744/19 and CAA/886/19, IA/2682/20 and for Petitioner in CP 162 of 2021. Ms. Tanaya Goswami, Assistant Government Pleader for State/Respondent No.4 in CP/162/21.
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : FEBRUARY 10, 2022.
PRONOUNCED ON: FEBRUARY 22, 2022.
P.C. :
Heard Mr. Sarwate, learned counsel for the Appellant, Mr. Y.R.Singh, learned counsel for the Respondent and Ms. Tanaya Goswami, learned Assistant Government Pleader, for the State.Shivgan 1/9
7-AO-744-2019.odt
2 Appellant/Wife, instituted petition for divorce, bearing PA No. 1217 of 2017 and suit under Section 41 of the Specific Relief Act, 1963 bearing P.B.No.18 of 2017 in the Family Court at Pune. Respondent-Husband moved applications in Petition and the suit, under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC' for short) asking for rejection of the petition and plaint. The learned Judge, Family Court vide order dated 4th December, 2018, declined to reject the plaint/petition, however, returned the petition and the plaint to the appellant under Order 7 Rule 10 of the CPC for presentation before proper Court with liberty to make appropriate application in terms of Order 7 Rule 10A of the CPC. 3 Legality of order dated 4th December, 2018 is questioned in this Appeal From Order filed under Order 43 Rule 1(a) read with Section 104 of the CPC.
4 Learned counsel for respondent has taken preliminary objection, as to maintainability of this Appeal Under Order 43 Rule Shivgan 2/9 7-AO-744-2019.odt 1A of the CPC, to contend that appeal was not maintainable in terms of Section 19 of the Family Courts Act, 1982. 5 Thus, the question falls for consideration is, whether the Family Court invoking its power under Order 7 Rule 10 of the CPC. would be amenable to remedy of appeal available to aggrieved party under the provisions of the CPC or not ?
6 Mr. Sarwate, learned counsel for appellant, in support of the appeal from order, as to its maintainability would largely rely on the judgment of this Court in the case of Prakash Naidu. v. Shashank Prakash Naidu 2017 Supreme (Maharashtra) 1977. In the cited judgment, the learned Judge has held, that order directing the plaint to be returned for presentation before the proper Court, being interlocutory in nature, the appeal shall not lie under Section 19 of the Family Courts Act, 1984, in-as-much as appeal remedy provided under Section 19 is about the final order and it contains express bar against an interlocutory order. The learned Single Judge, by taking recourse to the provisions of Section 10(1) of the Family Courts Act, Shivgan 3/9 7-AO-744-2019.odt has held that, this section expressly made provisions of Civil Procedure Code, 1908 applicable to Family Court and also, held that by fiction of Law, family Court being, Civil Court, the Family Court invoking power under Order 7 Rule 10 of the CPC would be amenable to the remedy of appeal under the provision of the Civil Procedure Code, 1908.
7 To appreciate the arguments of the appellant, it would be advantageous to re-produce Sections 10 and 19 of the Family Courts Act, 1984;
"Section 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.Shivgan 4/9
7-AO-744-2019.odt (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.
Section 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 2[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.
2[(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 Shivgan 5/9 7-AO-744-2019.odt correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.] 3[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
4[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
8 Section 10 of the Act contemplates, that except the proceedings under Chapter IX of the Code of Criminal Procedure 1973 (order for maintenance of wives), the provisions of Code of Civil Procedure, 1908 and of other law for the time being in force shall apply, to suits and proceedings before the Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a Civil Court and shall have all the trappings and powers of, such Court.
9 Analysis of Section 10 unfold, that i. Proceedings before the 'Family Court' other than proceeding relating to maintenance of wives under Code of Criminal Procedure, 1973, rest, shall be governed by provisions of Code of Civil Procedure, 1908;
Shivgan 6/9
7-AO-744-2019.odt ii. For the purposes of provisions of the Code of Civil Procedure, 1908, Family Court shall be deemed to be Civil Court;
iii.Application of provisions of Code of Civil Procedure, 1908 is subject to other provisions of the Family Court and Rules; AND, iv. Procedure contemplated under Section 10(1) is applicable to proceedings and suits, before the Family Court established under Section 3 of the Family Courts Act, 1984;
Now, let me examine Section 19 of the Act; Its analysis unfold;
(i) It speaks of remedy of appeal from every judgment or order of Family Court; except from interlocutory order;
(ii) Appeal from every Judgment or order of Family Court shall lie only before the High Court;
(iii) Appeal preferred under Sub-section (1) of Section 19 shall be heard by a Bench consisting of Shivgan 7/9 7-AO-744-2019.odt two or more judges; AND
(iv) Section 19 by itself is distinct Code, and does not admit application of anything contained in the Code of Civil Procedure, in view of 'Non-obstante Clause'.
10 That being so reading the Sections 10 and 19, simultaneously, it becomes apparent, that
(i) General procedure, contemplated under Section 10 is applicable to, suit and proceedings before the 'Family Court' only and not to proceedings in Appeal;
(ii) Court hearing appeal is not Family Court, established under Section 3 of the Family Courts Act and, therefore, for all purposes, application of Section 10, to the appeal proceedings, stands excluded;
(iii) 'Non-obstante Clause' in opening of Section 19(1) excludes application of Code of Civil Procedure and Code of Criminal Procedure or order of the Family Court;
11 In that view of the matter and for the foregoing reasons, Shivgan 8/9 7-AO-744-2019.odt I hold, remedy of appeal against the order, passed by the Family Court, under Order 7 Rule 10, is no amenable under the provisions of Code of Civil Procedure, 1908. Question is answered accordingly. 12 In that view of the matter, appellant is granted liberty to convert this Appeal From Order in appropriate proceedings as permissible and in accordance with law.
(SANDEEP K. SHINDE, J.) Shivgan 9/9