IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 10982/2015(GM-FC) BETWEEN:
SHRI RAMAPPA S/O PHAKKIRAPPA AGED ABOUT 61 YEARS R/AT NO.32, SHIRGOD VILLAGE & POST, HANAGAL TALUK HAVERI DISTRICT PIN-581 114.
... PETITIONER (BY SRI.B.N.SHETTY, ADV.) AND SMT SUMANGALA W/O RAMAPPA AGED ABOUT 50 YEARS R/AT AREMALLAPURA RANEBENNUR TALUK HAVERI DISTRICT PIN-581 115.
... RESPONDENT (BY SRI.POONACHA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.7.2.2015 PASSED BY THE FAST TRACK JUDGE, SAGAR IN RA.A.235/2010 VIDE ANNEXURE-A AS ONE WITHOUT JURISDICTION AND UNSUSTAINABLE IN LAW.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 7.2.2015 passed by the Fast Track Court, Sagar vide Annexure-A in R.A.No.235/2010 whereby the Fast Track Judge has set aside the order of divorce dated 29.7.2010 passed by the Addl. Civil Judge (Sr.Dn.), Sagar in M.C.No.22/2007.
2. Brief facts of the case:
The petitioner and respondent herein are the husband and wife. The husband had filed a petition under Section 13(1)(1a) of the Hindu Marriage Act in M.C.No.22/2007. By order dated 29.7.2010, the learned Civil Judge allowed the petition filed by the husband. Being aggrieved by the same, the wife has filed an appeal before the Fast Track Court, Sagar in R.A.No.235/2010. By judgment and decree dated 7.2.2015, the learned Fast Track Judge allowed the appeal and remanded the matter to the trial Court. Being aggrieved by the same, the petitioner-husband has filed this writ petition.
3. Sri.B.N.Shetty, the learned counsel for the petitioner submits that any order passed under Section 13 of the Hindu Marriage Act, an appeal lies under Section 28 of the Act before the High Court. The appeal filed by the respondent herein before the Fast Track Court is not maintainable and the judgment passed by the Fast Track Court is without jurisdiction. Hence, he sought for allowing the petition.
4. Sri.C.M.Poonacha, the learned counsel for the respondent submits that in the appeal filed by the respondent-wife before the Fast Track Court, notice has been issued to the husband and he appeared through his advocate and he has not raised any objection regarding jurisdiction. The appellate Court has set aside the order passed by the trial court in M.C.No.22/2007 and remanded the matter to the trial court whereby the rights of the parties are not affected.
5. Heard the learned counsel for the parties and perused the records.
6. It is not in dispute that the parties are husband and wife. The husband had filed a petition under Section 13(1)(1a) of the Hindu Marriage Act in M.C.No.22/2007. The Family Court after hearing the parties has allowed the petition on 29.7.2010 granting decree of divorce. Being aggrieved by the same, the wife had filed an appeal in R.A.235/2010 before the Fast Track Court, Sagar. The said appeal was allowed on 7.2.2015 and matter was remanded to the trial Court. Challenging the order dated 7.2.2015, the present petition is filed.
7. As per the provisions of Section 28 of the Hindu Marriage Act and Section19 of the Family Court Act, an appeal lies before the High Court. Section 28 of the Act is relevant and the same is extracted hereunder:
28. Appeals from decrees and orders. — (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.
Section.19 of Family Court Act is extracted below:
19. Appeal. - l) 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.] (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 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.”
8. From the above provisions, it is clear that the appeal filed by the respondent-wife before the Fast Track Court is not maintainable and consequently, the order dated 7.2.2015 passed in R.A.No.235/2010 is contrary to the provisions of the Section 28 of the Act. Hence, the same is unsustainable.
9. Accordingly, the writ petition is allowed.
The order dated 7.2.2015 passed by the Fast Track Court, Sagar vide Annexure-A in R.A.No.235/2010, is set aside. The respondent-wife is at liberty to challenge the judgment dated 29.07.2010 passed by the Family Court, Sagar in M.C.No.22/2007 in accordance with law.
Sd/- JUDGE DM