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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
Raju - Petitioner
Versus
Neelam & Ors. - Respondents
CM(M) 1109 of 2018, FAO 431 of 2018
Decided On : 14-09-2018
Family Courts Act, 1984 - Interdiction by Family Courts Act, 1984 of remedies against orders in proceedings under the Hindu Marriage Act, 1955 - Section 19(1) and (6) of the Family Courts Act, 1984, Order IX Rule 13 of the Code of Civil Procedure, 1908, Section 126(2) of the Code of Criminal Procedure, 1973, Section 125 of the CrPC, Section 13(1)(ib) of the Hindu Marriage Act - The judgment discusses the interdiction by the Family Courts Act, 1984 of remedies against orders in proceedings under the Hindu Marriage Act, 1955, and the applicability of Section 19(1) and (6) of the Family Courts Act, 1984, Order IX Rule 13 of the Code of Civil Procedure, 1908, Section 126(2) of the Code of Criminal Procedure, 1973, Section 125 of the CrPC, and Section 13(1)(ib) of the Hindu Marriage Act. It highlights the interpretation of 'interlocutory order' and 'intermediary order' and the applicability of appeals under Section 19(1) and (6) of the Family Courts Act, 1984.
Fact of the Case:
The judgment discusses two proceedings related to orders in proceedings under the Hindu Marriage Act, 1955 and the Family Courts Act, 1984. The court examines the maintainability of appeals and petitions filed under various provisions of the CPC, CrPC, and the Constitution of India.
Finding of the Court:
The court found that the orders impugned in both proceedings were of the Family Court constituted under the Family Courts Act, and the appeals and petitions filed were not maintainable under the relevant provisions. It held that the appropriate remedy against the orders was a Criminal Revision.
Issues: The issues revolved around the maintainability of appeals and petitions filed under various provisions of the CPC, CrPC, and the Constitution of India against orders in proceedings under the Hindu Marriage Act, 1955 and the Family Courts Act, 1984.
Ratio Decidendi: The court applied the tests adopted by the Division Bench in Manish Aggarwal to determine the characteristics of finality of the orders and the applicability of appeals under Section 19(1) and (6) of the Family Courts Act, 1984. It also considered the exclusions and remedies provided under the Family Courts Act, 1984.
Final Decision: Both the proceedings were rejected as not maintainable, and the parties were granted liberty to invoke appropriate remedies, specifically Criminal Revision, against the impugned orders.
CMs No.37815/2018 & 37816/2018 in CM(M) No.1109/2018 (both for exemption) & CM No.37678/2018 in FAO No.431/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
CM(M) No.1109/2018 & CM No.37817/2018 (for stay) &
FAO No.431/2018 & CM No.37679/2018 (for condonation of 48 days delay in re-filing the appeal)
3. Both proceedings are taken up together as entail common question of law i.e., interdiction by Family Courts Act, 1984 of remedies against orders in proceedings under the Hindu Marriage Act, 1955.
4. CM(M) No.1109/2018 under Article 227 of the Constitution of India impugns the order [dated 24th July, 2018 in M No.08/2018 of the Court of Principal Judge, Family Court, Shahdara] of dismissal of an application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) and under Section 126(2) of the Code of Criminal Procedure, 1973 (CrPC), for setting aside of the ex-parte order dated 21st February, 2017.
5. The petitioner has not filed the copy of the ex-parte order dated 21st February, 2017, setting aside whereof was sought by filing application which has been dismissed. The petitioner has also not placed any documents before this Court from which the nature of the proceedings in which the ex-parte order dated 21st February, 2017 was made can be known. However, from the petitioner, besides Order IX Rule 13 of the CPC, also invoking Section 126(2) of the CrPC, it appears that the proceedings in which the ex-parte order dated 21st February, 2017 was made, were proceedings under Section 125 of the CrPC. The counsel for the petitioner confirms.
6. The Registry of this Court raised an objection as to the maintainability of CM(M) No.1109/2018. However, the counsel for the petitioner insisted that the petition is maintainable. The Registry has thus listed the petition subject to objection as to maintainability thereof.
7. The counsel for the petitioner in CM(M) No.1109/2018 on being asked to satisfy this Court about the maintainability of the petition, states that the impugned order is an interlocutory order.
8. The counsel for the petitioner in CM(M) No.1109/2018 further states that earlier, proceedings under Section 125 of the CrPC used to lie before the Metropolitan Magistrate and against an ex-parte order therein, a Revision Petition under Section 397 of the CrPC used to lie to the Sessions Court; however, now that proceedings under Section 125 of the CrPC are dealt with by the Family Court, the Revision Petition under Section 397 of the CrPC cannot be preferred before the Sessions Court and thus the petitioner has moved this Court under Article 227 of the Constitution of India.
9. FAO No.431/2018 under Order XLIII Rule 1(d) of the CPC along with an application for condonation of 48 days delay in re-filing thereof has been preferred against the order [dated 27th February, 2018 in M No.17/2018 of the Court of Judge, Family Court, Shahdara] of dismissal of an application under Order IX Rule 13 of the CPC filed by the appellant therein to set aside the ex-parte judgment and decree dated 30th July, 1991 of dissolution of marriage of parties therein by a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act.
10. Though the Registry of this Court did not raise any objection as to maintainability of FAO No.431/2018, but I have enquired from the counsel for the appellant in FAO No.431/2018, how, in light of Section 19 of the Family Courts Act, 1984, appeal under Order XLIII Rule 1(d) of the CPC against the orders of the Family Court of dismissal of applications under Order IX Rule 13 of the CPC is maintainable.
11. It is further enquired from both the counsels, whether they have examined the matter in the light of the dicta of the Division Bench of this Court in Manish Aggarwal Vs. Seema Aggarwal (2012) 192 DLT 714. Copy of the judgment is supplied to the counsels and the matter passed over to enable the counsels to study.
12. While the counsel for the
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