Allahabad High Court
Irshad Khan vs Smt Tabassum on 16 September, 2021
Bench: Kaushal Jayendra Thaker, Subhash Chand
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- FIRST APPEAL No. - 515 of 2021
Appellant :- Irshad Khan
Respondent :- Smt Tabassum
Counsel for Appellant :- Sanjay Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Subhash Chand,J.
Heard learned counsel for the appellant.
By way of this appeal the appellant has felt aggrieved by the order dated 09.02.2021 passed by the Additional Principal Judge, Family Court No. 1, Bulandshahr. Earlier the same order was challenged by way of filing a Civil Misc. Writ Petition (227) No. 3409 of 2021 (Irshad Khan Vs. Smt. Tabassum) on 28.07.2021 which come to be dismissed as according to Court, appeal under Section 19 of the Family Courts Act could be preferred. The Court on 28.07.2021 held:
"that rejecting the amendment application is a final order in respect of the proceedings of amendment and therefore was appealable within the meaning of Section 19 of the Family Courts Act, 1984."
The appellant did not even file the application for condonation of delay though the order impugned was pronounced in the month of February. The counsel for the appellant has submitted that the marriage of the appellant was solemnized on 01.11.2009 as per Muslim Rites and Customs and a daughter and a son are born out of the wedlock and they were in the custody of appellant who is maintaining them. The respondent here in preferred a petition on 16.12.2019 before the Principal Judge, Family Court, Bulandshahr for dissolution of Muslim marriage on the ground of cruelty. The appellant here in filed his written statement. An application under Order 6 Rule 17 was moved for deletion of paragraph-6 of the petition. The judge concerned allowed the amendment application which has aggrieved the appellant. Having heard the learned counsel for appellant it would be necessary for us to perused Section 19 of the Family Courts Act.
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 1[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].
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.
2[(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.]"
3[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgement, order or decree of a Family Court.
3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges".
Even if on perusal of this the amendment though the learned Single Judge in the writ petition has mentioned that amendment is a final order we now do not delve into that issue rather we decide the appeal on its merits.
The application of the wife is not projected to have change the mode of the litigation or nature of the litigation. The learned Judge of the Family Court has heavily relied on authoritative pronouncement in three matters which are enumerated here in below:
"1. 2012 Legal Eagle (C) 495 Abdul Rehman & Anr. Vs. Mohd. Fuldu & Ors;
2. 2015 SCCr 568 Mahila Ram Kali Devi and Others Vs. Nandram (D) Thr. LRS And Others;
3. 2006 Legal (SC) 216 Rajesh Kumar Aggarwal & Ors. V.K.K. Modi and Ors."
We have heard the learned counsel, we cannot stay the proceedings of the Matrimonial Case No. 1798 of 2019 (Tabassum Vs. Irshad) under Section 02 of Dissolution of Muslim Marriage Act.
The affidavit in support of this appeal is sworn by Shamimuddin Khan. The appellant himself has not sworn the affidavit, it is not mentioned whether the said pairokar was authorized to prefer this appeal. The sole objection of the appellant is that averments made in paragraph-6 of the petition for divorce cannot be deleted. It relates to gift deed which was filed in the Court. The litigation is for divorce and therefore the Court has felt that deletion of the said paragraph relating to gift deed will not make much difference to the litigation and the lis between the parties.
We concur with the order of the learned Additional Principal Judge, Family Court No.1, Bulandshahr.
With these observations, this appeal is dismissed.
Order Date :- 16.9.2021
PS
