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2006 Supreme(Ker) 523

Judges : KURIAN JOSEPH
Baiju - Appellant
Versus
Valsala - Respondent
Case No : CRP.No.1801 of 2003
Decided On : 08/23/2006
Advocates Appeared :
For the Petitioner: B. Premod, T.R. Sathyan, Advocates. For the Respondent: Philip T. Varghese, Thomas T. Varghese, Advocates.

Headnote:

Family Courts Act 1984 -Section. 19 -Whether a revision will lie against an interlocutory order passed by the Family Court is one of the questions to be considered in this Civil Revision Petition. S.19 of the Family Courts Act, 1984 -Save as provided in sub-s.(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 -Held, Civil Revision Petition is liable to be dismissed on that sole ground I may also refer to the factual situation in the instant case Civil Revision Petition is filed against the order dated 3-7-2003 in I.A.No. 1080/2002 in O.P.No.458/1998 on the file of the Family Court, Kottayam. application was filed for referring the respondent to the Medical College Hospital, Kottayam for assessing infertility -original petition is filed praying for a decree of divorce. It is submitted that the grounds taken are matrimonial fraud and cruelty, matrimonial fraud in the sense that the respondent suppressed her incapacity to conceive -Disposal of the petition.

Judgment :-

Whether a revision will lie against an interlocutory order passed by the Family Court is one of the questions to be considered in this civil revision petition. Section 19 of the Family Courts Act, 1984 reads as follows:-

“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 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 the 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 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 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.â€

Section 19(1) excludes appeals from interlocutory orders and sub-section (2) excludes appeals from decree or order passed with the consent of the parties and from an order passed under Chapter IX of the Code of Criminal Procedure. Chapter IX of the code of Criminal Procedure deals with orders for maintenance of wives, children and parents. In respect of orders on those aspects covered by Chapter IX of the Code of Criminal Procedure (Sections 125 to 128) the Act provides for revision before the High Court either suo motu or on application for examining the correctness, legality or propriety of the order or regularity of the proceedings. There is also or regularity of the proceedings. There is also an exclusion with regard to interlocutory orders passed under chapter IX of the code of Criminal Procedure. However, it is open to the High Court to examine the regularity of any proceedings in a revision under Section 19 (4). Sub-section (5) makes it crystal clear that except as provided under Section 19(1), (2) and (4) no appeal or revision lies to any court from any judgment or order or decree of a Family Court. The contention of the learned counsel appearing for the petitioner is that in view of the exclusion of the appellate remedy under sub-sections (1) and (2) of Section 19 it is open to the petitioner to have the remedy of revision, in terms of the general principles under Section 115 of the Code of Civil Procedure. In the absence of a specific exclusion clause, probably the contention could have been appreciated. However, in view of the statutory exclusion of revision except in the case of an order under Chapter IX of the Code of Criminal Procedure regarding maintenance no revision shall lie in any court in respect of orders either interlocutory or final passed by the Family Court.

2. Though the civil revision petition is liable to be dismissed on that sole ground I may also refer to the factual situation in the instant case. This civil revision petition is filed against the order dated 3-7-2003 in I.A.No.1080/2002 in O.P.No.458/1998 on the file of the Family Court, Kottayam. The application was filed for referring the res

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