Himachal Pradesh High Court
Bal Krishan vs . Kirna Devi And Ors. on 18 July, 2024
Bal Krishan vs. Kirna Devi and Ors.
.
Cr. Revision No. 673 of 2023
Order Reserved on: 04.07.2024
18. 07.2024 Present: Mr. Ashok Kumar, Advocate, for the
applicant/petitioner.
Mr. Divya Raj Singh, Advocate, for the non-
applicants/respondents.
Cr. MP No. 491 of 2024
The applicant/petitioner has filed the present
application for converting the criminal revision under
Section 397 read with Section 401 of Cr.P.C. into the one
under Section 19(4) of the Family Courts Act.
2. It has been asserted that the applicant/petitioner
had earlier filed the petition under Section 19 of the Family
Courts Act but an objection was raised that it was filed under
the wrong provisions of law, hence, the petition was filed
under Section 397 and 401 of Cr.P.C. The Court ordered on
13.12.2023 that keeping in view Sections 19 and 20 of the
Family Courts Act, 1984, it is doubtful that the present
petition would lie under Section 397 of Cr.P.C. The learned
counsel went through the provisions and the judgments of
the Courts and found that the petition was to be filed under
Section 19 (4) of the Family Courts Act, hence, the
application for converting it into a criminal revision under
.
Section 19(4) of the Family Courts Act.
3. The petition is opposed by filing a reply denying the
contents of the petition. It was asserted that the petitioner's
remedy is to file an appeal to the higher Courts under the
provisions of the Family Courts Act; therefore, it was prayed
that the present petition be dismissed.
4. I have heard Mr. Ashok Kumar learned counsel for
the applicant/petitioner and Mr. Divya Raj Singh, learned
counsel for the non-applicants/respondents.
5. Mr Ashok Kumar, learned counsel for the
applicant/petitioner, submitted that the petition should have
been filed under Section 19(4) of the Family Courts Act but it
was filed under Section 397 read with Section 401 of Cr.P.C.
Since, this was merely a technical error, therefore, the
present application be allowed and the applicant/petitioner
be permitted to convert the petition into the one under
Section 19(4) of the Family Courts Act.
6. Mr. Divya Raj Singh, learned counsel for the non-
applicants/respondents submitted that the petition would lie
under Section 19(1) of the Family Courts Act and the present
application for converting it into the one under Section 19 (4)
of Family Courts Act is not maintainable; hence he prayed
.
that the present application be dismissed.
7. I have given considerable thought to the rival
submissions at the bar and have gone through the records
carefully.
8.
under: to
Section 19 of the Family Courts Act, 1984 reads as
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 or Criminal
Procedure, 1973 (2 of 1974), or in any other law, an
appeal shall lie from every judgement 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
judgement or order of a Family Court.
(4) The High Court may, of its own motion or otherwise,
call for an 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.
9. It is apparent from the bare perusal of Section 19 (2)
that no appeal lies from the order passed under Chapter IX of
Cr.P.C. Section 125 of CrPC falls within Chapter IX of CrPC.
Hence, no appeal can be filed against an order granting
maintenance and the submission of learned counsel for the
non-applicants/respondents that an appeal should have
been preferred in the present matter is not acceptable.
10. Section 19(4) of the Family Courts Act provides for
revision against the orders passed in the proceedings under
Chapter IX of CrPC. The applicant/petitioner had filed a
revision but had mentioned the wrong Sections. The mere
mentioning of the wrong Section will not take away the
jurisdiction of a Court to grant the relief. The
applicant/petitioner is only changing the Section under
which, the present petition should have been filed and is not
changing the substance of the petition. Since the change in
the Section is merely formal, therefore, the present
application is allowed and the applicant/petitioner is
permitted to change the Section to 19(4) of the Family Courts
.
Act from Section 397 and 401 of Cr.P.C. Necessary correction
be made. The present application stands disposed of.
11. List the matter for hearing in due course.
r to (Rakesh Kainthla)
Judge
July 18th , 2024
(saurav pathania)
