1. Application under Section 5, Limitation Act, 1963, seeking condonation of delay in filing appeal under Section 19(1), Family Courts Act, 1984. (Para 1 )
Back
Next 
2025 Supreme(Sikk) 111
IN THE HIGH COURT OF SIKKIM : GANGTOK
BISWANATH SOMADDER, CJ., MEENAKSHI MADAN RAI, J.
Ms. Yangchen Donkar Bhutia, Wife of Sonam Pintso Bhutia – Appellant
Versus
Mr. Sonam Pintso Bhutia, Son of Late Lhakpa Thenup Bhutia – Respondent
IA NO. 01/2025 IN MAT. APP. NO. 96/2025 (Filing No.)
Decided on : 23-09-2025
Advocates Appeared:
For the Appellant :Mr. Pramit Chhetri, Advocate.
For the Respondent:Ms. Zola Megi, Advocate.
For the Appellant :Mr. Pramit Chhetri, Advocate.
For the Respondent:Ms. Zola Megi, Advocate.
No appeal lies against an order passed by a Family Court under maintenance provisions (Section 144 BNSS/Section 125 CrPC) per Section 19(2) of the Family Courts Act; consequently, applications for condonation of delay in filing such non-maintainable appeals cannot be granted.
Headnote:(A) Family Courts Act, 1984 - Section 19(2) - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 144 - Code of Criminal Procedure, 1973 - Chapter IX - Limitation Act, 1963 - Section 5 - Appeal against order passed by Family Court under maintenance provisions - No appeal maintainable under Section 19(2) of Family Courts Act from orders passed under Chapter IX of Code of Criminal Procedure, 1973 (now corresponding to Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023) - If no scope for maintaining an appeal, question of condoning delay in preferring such appeal does not arise. (Paras 3, 4, 5)
Facts of the case:
An application was filed under section 5 of the Limitation Act seeking condonation of a 135-day delay in filing an appeal against a judgment and order passed by the Family Court exercising powers under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Findings of Court:
The court found that section 19(2) of the Family Courts Act, 1984, explicitly bars appeals from orders passed under Chapter IX of the Code of Criminal Procedure, 1973. As section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, corresponds to the maintenance provisions of the old law (Section 125 CrPC), no appeal is maintainable against such an order.
Issues: Whether the court can exercise discretion to condone delay under section 5 of the Limitation Act for an appeal that is legally barred under section 19(2) of the Family Courts Act.
Ratio Decidendi: Where the statute expressly prohibits an appeal from a specific order, the court cannot entertain an application for condonation of delay in filing such a non-maintainable appeal.
Result: The application is, therefore, liable to be dismissed and is accordingly dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether the court could condone a 135-day delay for an appeal against a Family Court order under Section 144, BNSS. (Para 1 , 2 )
3. Section 19(2) bars appeal from orders under Chapter IX, CrPC, now Chapter X, BNSS, covering Section 144 maintenance orders. (Para 3 , 4 )
4. No appeal lies against a Family Court order under Section 144 BNSS; thus, delay condonation is unnecessary. (Para 4 , 5 )
5. Application dismissed as no appeal can be maintained against the order. (Para 6 )
6. Is an appeal maintainable against a Family Court order passed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023?
No, Section 19(2) of the Family Courts Act, 1984, bars appeals from orders under Chapter IX of CrPC (now Chapter X of BNSS), which includes Section 144. (Para 3 , 4 )
7. Can delay be condoned under Section 5 of the Limitation Act for an appeal that is not maintainable?
No, if no appeal lies, there is no scope to condone delay in preferring such an appeal. (Para 5 )
JUDGMENT :
BISWANATH SOMADDER, CJ.
1. This is an application under section 5 of the Limitation Act, 1963, for the purpose of seeking condonation of delay for filing of an appeal under section 19(1) of the Family Courts Act, 1984. The judgment and order of the learned Family Court was passed in respect of Family Court (Crl.) Case No.36 of 2024, in an application under section 144 of the Bharatiya Nagarik Pintso Bhutia), on 05th March, 2025. The period of delay in filing of the present appeal, as stated in the instant application, is 135 (one hundred and thirty five) days.
2. The question that was posed by this Court is whether the period of 135 (one hundred and thirty five) days can be condoned by this Court under section 5 of the Limitation Act, 1963, while taking into account the fact that this matter is in respect of an order passed by the Family Court, exercising its powers under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 {which corresponds to section 125 of the Code of Criminal Procedure, 1973 (falling under Chapter IX) being the old law}.
3. For the purpose of this matter, we need to consider and read section 19(2) of the Family Courts Act, 1984, carefully:-
“19. Appeal.— ………………………………
(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.”
4. A plain reading of the above provision of law clearly reveals that in the facts of the instant case, there is no scope for any appeal from an order passed by the Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (which dealt with maintenance under section 125 of the old law) and which is now squarely covered under section 144, falling under Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023.
5. Since there is no scope for maintaining any appeal against an order passed by the Family Court under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, there is no question of this Court exercising its discretion to condone the delay in preferring an appeal from an order therefrom.
6. The application is, therefore, liable to be dismissed and is accordingly dismissed.
