Section 19 Family Courts Act 1984 | Order Of Family Court Under Section 125 CrPC Not Appealable: Allahabad High Court

The Allahabad High Court has held that order passed by the Family Court under Section 125 of Code Of Criminal Procedure, 1973 is not appealable before the High Court under Section 19 of the Family Courts Act, 1984.

While referring to Section 19 of the Family Courts Act, 1984, the bench comprising of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held

“By using the words "Save as provided in sub-section (2)", the parliament has left no doubt to be entertained as to the supremacy of sub-section (2) of Section 19 with respect to right of appeal created under Section 19(1) of the Act. Section 19(2) of the Act clearly denies right of appeal against any order that may be passed by a Family Court under Chapter IX of the Cr.P.C. Undisputedly Section 125 Cr.P.C. is an integral part of Chapter IX of the Cr.P.C.”

Appellant had earlier filed a criminal revision before the High Court challenging the order of the Additional Principal Judge, Family Court, Shahjahanpur, granting monthly maintenance of Rs. 2500/- to the respondent-wife from the date of her application. The said order was passed under Chapter IX, Section 125 of the Code Of Criminal Procedure, 1973. The criminal revision was withdrawn with liberty to approach appropriate Court/ forum. Accordingly, there was a delay of 468 days in filing the first appeal before the High Court.

Counsel for appellant contended that every order passed by the Family Court was appealable before the High Court under Section 19 of the Family Courts Act, 1984.

Sub Section (1) of Section 19 of the Family Courts Act, 1984 provides that appeal from every order or judgment of the Family Court which is not an interlocutory order will lie before the High Court. However, Sub section (2) of Section 19 provides that

“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)”

The Court observed that the appeal is arising from order passed by the Family Court under Section 125 CrPC. and not under Section 24 of the Hindu Marriage Act, 1955.

“While, it is true that every judgment or order passed by a Family Court is appealable to the High Court both on facts and law, except interlocutory orders and though it may be expected that order providing for maintenance is of the nature that may be appealable, at the same time, the right of appeal granted under Section 19(1) of the Act is hedged,” observed the Court.

The Court held that right to appeal is subject to Section 19(2) of the Act of 1984. The words "Save as provided” in sub-section (2) take precedence over the right to appeal under Section 19(1). The Court held that since Section 125 of CrPC forms an integral part of Chapter IX of CrPC, the bar created under Section 19(2) is applicable on orders passed under Section 125 of CrPC.

Accordingly, the appeal against order of the Family Court under Section 125 of CrPC was dismissed.

Case Title: Deepak vs. Smt. Reena [First Appeal Defective No. - 377 of 2023]

Citaion: 2023 LiveLaw (AB) 450

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