There is bar of filing appeal against order passed under Chapter IX of Cr.P.C. — In view of specific bar of appeal
Court: CHHATTISGARH HIGH COURT
Bench: JUSTICE Dr. I.M. Quddusi & G. Minhaj
GEETA BARETH Vs. KESHAV PRASAD BARETH On 10 May 2012
Law Point:
There is bar of filing appeal against order passed under Chapter IX of Cr.P.C. — In view of specific bar of appeal and fact that order challenged in this appeal has been passed under Chapter IX of Cr.P.C., this appeal is not maintainable — Objections raised by learned Counsel for respondent is unsustainable in the eyes of law — This will not debar appellant to file revision under Section 19(4) of F.C. Act if same is permissible under law.
JUDGEMENT
This appeal has been filed by the appellant under Section 19(1) of the Family Courts Act, 1984, against the order dated 28.12.2011 passed by Judge, Family Court, Raigarh (C.G.) in Civil Cr. M. J. C. No. 17/2011 dismissing the application filed under Section 125 of Cr.P.C.
2. The facts, in brief, according to the appellant, as per averments made in application under Section 125 of Cr.P.C., are that the marriage of the appellant-Geeta Bareth was solemnized with the respondent-Keshav Prasad Bareth on 25.4.2009 as per the Hindu rites and ceremonies. After the marriage, the respondent/husband and his family members had started demand of various articles including a motor cycle in dowry from the appellant/wife and she was subjected to cruelty in connection with the same. In the month of July 2009, her in-laws had caused her miscarriage by administering some Ayurvedic medicine. Thereafter, the appellant/wife was forcefully sent to her parents’ house and her entire goods were detained by her in-laws. Since then she is residing at her parents’ house and is unable to maintain herself. The respondent/husband had neglected and refused to maintain her. On account of this, the appellant/wife filed an application under Section 125 of Cr.P.C. for grant of maintenance.
3. On the other hand, the respondent/husband denied all the averments made in the application for maintenance and has stated that neither any dowry was demanded nor the appellant was ever tortured and harassed in connection with the same. The appellant/wife, despite all efforts, has not been able to adjust her at her in-laws’ place and is living separately from the husband without any just and reasonable cause.
4. Learned Family Court, Raigarh after affording opportunity of hearing and of adducing evidence to the parties, has dismissed the application of the appellant/wife vide impugned order, against which the present appeal has been filed.
5. Heard learned Counsel for the parties and perused the impugned order.
6. Learned Counsel for the respondent has raised a preliminary objection regarding the maintainability of the appeal.
7. This appeal has been filed against the impugned order dated 28.12.2011 passed by the Family Court, Raigarh (C.G.) in Cr.M.J.C. No. 17/2011.
8. The appellant had moved an application under Section 125 of Cr.P.C. for obtaining an order for maintenance. The same has been dismissed, against which the instant appeal has been filed.
9. This appeal has been filed under Section 19(1) of the Family Courts Act. Before proceedings further, it is necessary to peruse the provisions of Section 19(1)(2), (4) of the Family Courts Act which are reproduced below:
“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.
(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 proceedings.”
10. As in Sub-section (1) it has been mentioned at the very outset that “Save as provided in Sub-section (2)”. The provisions of Sub-section (2) shall be applicable in every appeal.
11. Sub-section (2) provides that “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”.
12. Chapter IX of Cr.P.C. relates to the order for maintenance of wives, children and parents. Sections 125 to 128 are in Chapter IX of Cr.P.C. Therefore, any order passed under Sections 125 to 128, would come under Chapter IX of Cr.P.C.
13. Therefore, there is bar of filing an appeal against the order passed under Chapter IX of Cr.P.C.
14. Sub-section (4) provides for a revision, in case, an order has been passed under Chapter IX of Cr.P.C., but not being an interlocutory order.
15. Therefore, in view of the specific bar of appeal and the fact that the order under challenge in this appeal has been passed under Chapter IX of Cr.P.C., this appeal is not maintainable and the objection raised by the learned Counsel for the respondent is sustainable in the eye of law.
16. In view of the above, the appeal is dismissed as not maintainable. However, this will not debar the appellant to file revision under Sub-section (4) of Section 19 of the Family Courts Act, 1984, if the same is permissible under law.
17. The registry is directed to note the above order and raise objections regarding maintainability of the appeal in case the same is filed against the order passed under Chapter IX of Cr.P.C.
18. Learned Counsel for the appellant at this stage submits that certified copy of the impugned order be returned back to him. Therefore, the registry shall return the certified copy after substituting xerox copy of the same on record.
Appeal dismissed.