Sunita Kumari vs Prem Kumar on 15 May, 2009

[Cites 6, Cited by 27]

Patna High Court - Orders

Sunita Kumari vs Prem Kumar on 15 May, 2009

Bench: Shiva Kirti Singh

                  IN THE HIGH COURT OF JUDICATURE AT PATNA
                                  MA No.126 of 2009
                                  SUNITA KUMARI
                                          Versus
                                    PREM KUMAR
                                        -----------
                                   with
                                 MA No.191 of 2009
                                BRAJ KISHORE SINGH
                                          Versus
                            THE STATE OF BIHAR & ANR
                                        -----------

6   15-05-2009

In both these appeals a question of some significance has arisen as to whether an appeal preferred u/s 19 of the Family Courts Act, 1984 against the judgement or order of a Family Court should be treated as a First Appeal or as a Miscellaneous Appeal. It has been brought to our notice that this issue was first decided by a Division Bench of this court in the case of Raj Kumar Saha vs Ritu Kala Saran reported in 2008 (2), PLJR, 211. In this case it was held that the appeal would be a First Appeal and not a Miscellaneous Appeal. Another Division Bench by order dated 23-9-08 passed in F.A. no. 104/2008 (Dr. Vivekanand Sharma vs Smt. Manorma Rai @ Amrita) noticed the aforesaid judgement but took a different view and held that the appeal should be numberd as Miscellaneous Appeal. The same issue was decided by another Division Bench in the same case which was re-numbered as M.A. no. 648/08 (Dr. Vivekanand Sharma Vs Smt. Manorma Rai @ Amrita) and by order dated 10-2-2009 it was held that the Division Bench order dated 23-9-08 was per incurium of Section 18 of Family Courts Act and hence, the earlier Division Bench was followed and it was held that appeal should be redesignated as First Appeal.

-2-

Before us learned counsel for the appellants has submitted that Section 18 of the Family Courts Act does not relate to provision for appeal and it relates only to execution of decrees and orders. It has been submitted that the expression in Section 18 that an order passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure for the execution of decrees and orders, creates limited fiction only for the purpose of execution and not for the purpose of preferring an appeal which is governed by Section 19 of the Family Courts Act. It was further submitted that in the Division Bench order dated 23-9-08 useful reference has been made to provisions under the Hindu Marriage Act, 1955 and after comparing Section 28 of the Hindu Marriage Act, 1955 with Section 19 of the Family Courts Act, 1984 the Division Bench came to a logical and proper conclusion that appeal u/s 19 of the Family Courts Act has to be treated as an appeal against a judgement and order and not against the decree of a Civil Court of competent jurisdiction. It has further been submitted that the Division Bench order dated 23-9-08 considered the earlier Division Bench and then consciously took a different decision and, therefore, the later Division Bench was not right in recalling the order dated 23-9-08 only on the ground of non notice of Section 18 of the Family Courts Act.

Having considered the aforesaid submissions, we are of the view that the aforesaid issue should be authoritatively decided by a larger Bench of at least three Judges. For that purpose the matter may -3- be placed before Hon'ble the Chief Justice.




                            (Shiva Kirti Singh, ACJ.)


BKS/                           (Dr. Ravi Ranjan, J.)

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Patna High Court - Orders