Madras High Court
Rohit Acharya vs Pooja Vyas on 20 June, 2022
Crl.OP.No.2693 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P. No.2693 of 2022 & Crl.M.P.No.1222 of 2022
Rohit Acharya ... Petitioner
Vs.
1. Pooja Vyas
2. Rishik Pooja Acharya
Minor, aged about 6 years,
Rep. by her natural guardian
and mother Pooja Vyas ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to set aside the Order dated 06.12.2021 in Crl.M.P.No.692
of 2019 in M.C.No.278 of 2019 pending before the V Additional Family
Court, Chennai.
For Petitioner : Mr.P.Kumaresan
for Ms.S.S.Jayanthi
For Respondents : Mr.K.Suresh Babu
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Crl.OP.No.2693 of 2022
ORDER
This Criminal Original Petition has been filed camouflage in the name
of a direction to set aside the Order dated 06.12.2021 passed in
Crl.M.P.No.692 of 2019 in M.C.No.275 of 2019 on the file of the V
Additional Family Court, Chennai.
2. Heard the learned counsel appearing for the petitioner and the
learned counsel for the respondents and perused the materials available on
record.
3. At the outset, this Court is of the view that very invoking power
under section 482 of Cr.P.C. to set aside an Order passed by a Family Court
is misconceived and such a petition is not maintainable. It is relevant to
note that Chapter V of the Family Court Act reads as follows :
CHAPTER V - APPEALS AND REVISIONS
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
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Crl.OP.No.2693 of 2022
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 referred under sub-section (1) shall be
heard by a Bench consisting of two or more Judges.
A perusal of the above section makes it very clear that any decree or Order
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Crl.OP.No.2693 of 2022
passed by the Family Court, in respect of Chapter IX of the Code of
Criminal Procedure, there is a specific bar in preferring an appeal invoking
Section 482 of Cr.P.C. to set aside the Order granting maintenance to the
petitioner and the minor child.
4. Be that as it may. In an earlier occasion, this Court by its Order
dated 22.04.2022 has directed the assessment of the child by an expert.
With the consent of both parties, child was referred to NIMHANS,
Bangalore for such assessment. Now both sides submitted that the child was
properly assessed by NIMHANS. It is the contention of the learned counsel
for the respondent that the assessment as suggested CMC, Vellore is also
asked to be continued by NIMHANS and it also suggested that child should
mingle with the other children and except that NIMHANS has not suggested
any contrary to the suggestion given by CMC, Vellore. Hence, it is the duty
of the petitioner to take care of the medical expenses of the child, who is
said to be suffering from Autism.
5. In such view of the matter, the very entertaining of the petition
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Crl.OP.No.2693 of 2022
under section 482 of Cr.P.C. as against the Order passed by V Additional
Family Court, is not correct. Hence, this Court is not inclined to go into the
merits of the Order passed by the V additional Family Court. If at all any
appeal has to be preferred, it has to be preferred only before Division Bench
of this Court.
6. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected miscellaneous petition is closed. In the event, the
expert report is received or yet to be received, the same shall be forwarded
to the V Additional Family Court, Chennai and the V Additional Family
Judge, shall decide the issue on its own merits.
20.06.2022
vrc
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Crl.OP.No.2693 of 2022
N. SATHISH KUMAR, J.
vrc
Crl.O.P. No.2693 of 2022
20.06.2022
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