Smt. Shashi Sharma v. Dharmendra Sharma), under Section
Case Details
Neutral Citation No. - 2024:AHC:187752 Court No. - 75 Case :- APPLICATION U/S 482 No. - 22537 of 2024 Applicant :- Dharmendra Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Neelam Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Legal Reasoning
i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of sub- section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act. ii. No appeal would lie under Section 19 (1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act. iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act." 10. In view of aforesaid, it is clear that the instant application under Section 482 Cr.P.C. against impugned order is not maintainable. Hence this application under Section - 482 Cr.P.C. is dismissed as not maintainable. Order Date :- 28.11.2024 RKM
Arguments
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record. 2. This application under Section - 482 Cr.P.C. has been preferred against order dated 28.04.2022, passed by the learned Principal Judge, Family Court, Kanpur Dehat in Case No. 176 of 2019 (Smt. Shashi Sharma Vs. Dharmendra Sharma), under Section - 127(1) Cr.P.C., whereby on the application of opposite party no.2, the amount of maintenance has been enhanced from Rs.5000/- to Rs.8000/- per month. 3. Learned AGA has raised a preliminary objection that the impugned order has been passed by Family Court under Section 127(1) Cr.P.C. and it is a final order and thus, application under Section 482 Cr.P.C. against the impugned order is not maintainable and only remedy available to the applicant is to file criminal revision 4. Learned counsel for the applicant submitted that the instant application under Section 482 Cr.P.C. against impugned order is maintainable. It was submitted that the impugned order is against facts and law and in such case, the applicant can invoke jurisdiction under Section 482 Cr.P.C. 5. I have considered the submissions and perused the record. 6. Section 19 of Family Court Act, 1984 reads as under: "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 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]. (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. (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." 7. Thus, Section 19 of the Act, 1984 enshrines the provision of appeal or revision against the order or decree of the Family Court. By the impugned order, amount of maintenance has been enhanced from Rs.5000/- PM to Rs.8000/- PM. It is not an interlocutory order. The law is settled that special law shall prevail over the general law. Therefore, in light of provision under Section 19 of the Act, 1984, the only remedy before the applicant is to file revision/ appeal, as the case may be. 8. In case of Liaqat Hussain Vs. Jainab Praveen and Another AIRONLINE 2020 ALL 2497, a Division Bench of this Court has held that remedy of criminal revision was available against an interim and final order passed under Section -125 to 128 Cr.P.C. 9. In case of Manish Aggarwal Vs. Seema Aggarwal and Others 2012 SCC OnLine Del 4816, Hon'ble Delhi High Court has summarized the legal position as under :- "26. We, thus, conclude as under: