Raj Kumar Saha vs Ritu Kala Saran

This Miscellaneous Appeal has been preferred against the order dated 14.7.2005 passed by the Principal Judge, Family Court, Bhagalpur in Matrimonial Suit No. 84 of 2001.

According, to the Stamp Reporter, this appeal has been made maintainable. Section 19 of the Family Courts Act, 1984 reads as under:- "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) of 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 subsection 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 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 preferred under subsection (1) shall be heard by a Bench consisting of two or more Judges."

According to Section 19 of the Family Courts Act, 1984, it appears that 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. It further appears that the orders passed by Family Court is in the form of a decree. Obviously, therefore, a decree drawn in a suit can be tested by this court in a First Appeal and not in miscellaneous appeal.

The Stamp Reporter, in this view of the matter, is directed to examine these questions and make a fresh stamp reporting after going through the several judgments of this court on the point. List this matter after two weeks as prayed for.