Bombay High Court
Nirmala Brian Tavares Alias ... vs Brian Rudolph Tavares on 22 February, 2022
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH
SHIVGAN
SHIVGAN
Date:
7-AO-744-2019.odt
2022.02.22
16:54:21
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.744 OF 2019
WITH
INTERIM APPLICATION NO.2682 OF 2020
WITH
CIVIL APPLICATION NO.886 OF 2019
WITH
CONTEMPT PETITION NO.162 OF 2021
Nirmala Brian Tavares ...Appellant
Vs
Brian Rudolph Tavares ...Respondent
...
Mr. Abhijit Sarwate i/by Mr. Ajinkya Udane for the Appellant
and for Applicant in CAA 886 of 2019 and for Respondent No.1
in CP 162/2021.
Mr. Y.R.Singh for Respondent in AO/744/19 and CAA/886/19,
IA/2682/20 and for Petitioner in CP 162 of 2021.
Ms. Tanaya Goswami, Assistant Government Pleader for
State/Respondent No.4 in CP/162/21.
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : FEBRUARY 10, 2022.
PRONOUNCED ON: FEBRUARY 22, 2022.
P.C. :
Heard Mr. Sarwate, learned counsel for the Appellant,
Mr. Y.R.Singh, learned counsel for the Respondent and Ms. Tanaya
Goswami, learned Assistant Government Pleader, for the State.
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2 Appellant/Wife, instituted petition for divorce, bearing PA
No. 1217 of 2017 and suit under Section 41 of the Specific Relief
Act, 1963 bearing P.B.No.18 of 2017 in the Family Court at Pune.
Respondent-Husband moved applications in Petition and the suit,
under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC'
for short) asking for rejection of the petition and plaint. The learned
Judge, Family Court vide order dated 4th December, 2018, declined
to reject the plaint/petition, however, returned the petition and the
plaint to the appellant under Order 7 Rule 10 of the CPC for
presentation before proper Court with liberty to make appropriate
application in terms of Order 7 Rule 10A of the CPC.
3 Legality of order dated 4th December, 2018 is questioned
in this Appeal From Order filed under Order 43 Rule 1(a) read with
Section 104 of the CPC.
4 Learned counsel for respondent has taken preliminary
objection, as to maintainability of this Appeal Under Order 43 Rule
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1A of the CPC, to contend that appeal was not maintainable in terms
of Section 19 of the Family Courts Act, 1982.
5 Thus, the question falls for consideration is, whether the
Family Court invoking its power under Order 7 Rule 10 of the CPC.
would be amenable to remedy of appeal available to aggrieved party
under the provisions of the CPC or not ?
6 Mr. Sarwate, learned counsel for appellant, in support of
the appeal from order, as to its maintainability would largely rely on
the judgment of this Court in the case of Prakash Naidu. v. Shashank
Prakash Naidu 2017 Supreme (Maharashtra) 1977. In the cited
judgment, the learned Judge has held, that order directing the plaint
to be returned for presentation before the proper Court, being
interlocutory in nature, the appeal shall not lie under Section 19 of
the Family Courts Act, 1984, in-as-much as appeal remedy provided
under Section 19 is about the final order and it contains express bar
against an interlocutory order. The learned Single Judge, by taking
recourse to the provisions of Section 10(1) of the Family Courts Act,
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has held that, this section expressly made provisions of Civil
Procedure Code, 1908 applicable to Family Court and also, held that
by fiction of Law, family Court being, Civil Court, the Family Court
invoking power under Order 7 Rule 10 of the CPC would be
amenable to the remedy of appeal under the provision of the Civil
Procedure Code, 1908.
7 To appreciate the arguments of the appellant, it would be
advantageous to re-produce Sections 10 and 19 of the Family Courts
Act, 1984;
"Section 10 - Procedure generally
(1) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure,
1908 (5 of 1908) and of any other law for the time
being in force shall apply to the suits and proceedings
[other than the proceedings under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974)] before a
Family Court and for the purposes of the said
provisions of the Code, a Family Court shall be deemed
to be a civil court and shall have all the powers of
such court.
(2) Subject to the other provisions of this Act and the
rules, the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) or the rules made
thereunder, shall apply to the proceedings under
Chapter IX of that Code before a Family Court.
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(3) Nothing in sub-section (1) or sub-section (2) shall
prevent a Family Court from laying down its own
procedure with a view to arrive at a settlement in
respect of the subject-matter of the suit or proceedings
or at the truth of the facts alleged by the one party
and denied by the other.
Section 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 2[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 (59 of 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.
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
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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 judgment, order or decree
of a Family Court.
4[(6)] An appeal preferred under sub-section (1) shall
be heard by a Bench consisting of two or more
Judges."
8 Section 10 of the Act contemplates, that except the
proceedings under Chapter IX of the Code of Criminal Procedure
1973 (order for maintenance of wives), the provisions of Code of
Civil Procedure, 1908 and of other law for the time being in force
shall apply, to suits and proceedings before the Family Court and for
the purposes of the said provisions of the Code, Family Court shall
be deemed to be a Civil Court and shall have all the trappings and
powers of, such Court.
9 Analysis of Section 10 unfold, that
i. Proceedings before the 'Family Court' other than
proceeding relating to maintenance of wives under
Code of Criminal Procedure, 1973, rest, shall be
governed by provisions of Code of Civil Procedure,
1908;
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ii. For the purposes of provisions of the Code of
Civil Procedure, 1908, Family Court shall be
deemed to be Civil Court;
iii.Application of provisions of Code of Civil
Procedure, 1908 is subject to other provisions of
the Family Court and Rules; AND,
iv. Procedure contemplated under Section 10(1) is
applicable to proceedings and suits, before the
Family Court established under Section 3 of the
Family Courts Act, 1984;
Now, let me examine Section 19 of the Act; Its analysis unfold;
(i) It speaks of remedy of appeal from every
judgment or order of Family Court; except from
interlocutory order;
(ii) Appeal from every Judgment or order of
Family Court shall lie only before the High Court;
(iii) Appeal preferred under Sub-section (1) of
Section 19 shall be heard by a Bench consisting of
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two or more judges; AND
(iv) Section 19 by itself is distinct Code, and does
not admit application of anything contained in the
Code of Civil Procedure, in view of 'Non-obstante
Clause'.
10 That being so reading the Sections 10 and 19,
simultaneously, it becomes apparent, that
(i) General procedure, contemplated under Section 10
is applicable to, suit and proceedings before the
'Family Court' only and not to proceedings in Appeal;
(ii) Court hearing appeal is not Family Court,
established under Section 3 of the Family Courts Act
and, therefore, for all purposes, application of Section
10, to the appeal proceedings, stands excluded;
(iii) 'Non-obstante Clause' in opening of Section
19(1) excludes application of Code of Civil Procedure
and Code of Criminal Procedure or order of the
Family Court;
11 In that view of the matter and for the foregoing reasons,
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I hold, remedy of appeal against the order, passed by the Family
Court, under Order 7 Rule 10, is no amenable under the provisions
of Code of Civil Procedure, 1908. Question is answered accordingly.
12 In that view of the matter, appellant is granted liberty
to convert this Appeal From Order in appropriate proceedings as
permissible and in accordance with law.
(SANDEEP K. SHINDE, J.)
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