Calcutta High CourtCO/7/2022disposed

Jaya Chandran v. P. Renu

2022-04-27Hon'Ble Justice Ananda Kumar Mukherjee6 pages

IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction [ CIRCUIT BENCH AT PORT BLAIR ] *** CO/7/2022 Jayachandran

...Petitioner

Vs.

P. Renu

...Respondent

Mrs. Anjili Nag ... for the petitioner Mr. Lokesh Chezian ... for the respondent April 27, 2022 [SR] Item No.4 The petitioner filed this revisional application under Article 227 of the Constitution of India challenging order dated 06.01.2022 passed by learned Judge, Family Court, Port Blair in Mat.Suit No.55 of 2017 (Shri Jayachandran vs. Smt. P.Renu) whereby learned Court below allowed the application of the defendant for removing the main suit from peremptory Board and fix the application under section 24 of the Hindu Marriage Act for hearing on 18.02.2002.

It is the case of the petitioner that he filed a suit bearing Mat.Suit No.55 of 2017 against the opposite party/respondent for dissolution of marriage under section 13(1)(i-a) of the Hindu Marriage Act, 1955 before learned Judge, Family Court, Port Blair.

The respondent filed an application on 25.01.2018 for maintenance pandente lite under section 24 of the Hindu Marriage Act. The said application was fixed for hearing from time to time but the respondent did not press for hearing of the application and the suit reached the stage of peremptory hearing. After almost three years, the matter was fixed for further examination of witnesses and the respondent filed an application on 06.01.2022 for removal of the suit from the peremptory hearing board and for hearing of the application under section 24 of the Hindu Marriage Act.

It is submitted that the said application was objected by the petitioner on the ground that the said application cannot be heard along with the main suit and it was required to be registered as Misc.Judl.Case as per Civil Rules and Orders. After such submission, learned Judge, Family Court, removed the suit from the peremptory board and fixed the application under section 24 of the Hindu Marriage Act for hearing.

The petitioner has approached this Court under Article 227 of the Constitution of India for invoking the supervisory jurisdiction of this Court for setting aside the impugned order dated 06.01.2022 passed by learned Judge, Family Court and direct the application under section 24 of the Hindu Marriage Act filed to be registered as a Misc.Judl.Case, according to the Rule 776(58) of the

Civil Rules and Orders of Calcutta High Court. Learned advocate for the petitioner submitted that the order suffers from material irregularity and the same is not sustainable in the eye of law.

After service of notice upon the respondent, Mr. Lokesh Chezian, learned advocate appeared before the Court and raised objection regarding maintainability of this revisional application filed against an order passed by learned Judge, Family Court, Port Blair. Learned advocate for the respondent drew the Court's attention to subsection 3 of section 19 of the Family Courts Act, 1984 where it is laid down that 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. It is submitted that according to the provision of section 19(3) an appeal from the order of a Family Court lies before a Division Bench of the High Court. Learned advocate, in support of his submission, relied upon a decision in the case of Jayanti Prasad Gautam vs. Pragya Gautam; (CM (M) 140.

2018 & CM No.4633/2018) passed by learned Single Judge of Delhi High Court wherein it has been observed; "7. Once the Legislature has provided the remedy of appeal, that too to the Division Bench against the impugned order, the principle enshrined in large number of judgments discussed in dicta of the Division Bench of this court in Dinkar Kumar vs.

2014 SCC OnLine Del 2288 relating to writ jurisdiction would apply i.e. that the Writ Court should abstain from exercising jurisdiction when alternative statutory remedy is available. It is not the case that the challenge to the impugned order made in this Writ Petition cannot be made in appeal under Section 19 of the Family Courts Act." Learned advocate for the respondent strenuously argued that the present application is not maintainable and is liable to be dismissed in limine.

Learned advocate for the petitioner drew my attention to Section 19(1) of the Family Courts Act, which lays down, "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 judgment or under, not being an interlocutory order, of a Family Court, to the High Court both on facts and on law.

It is submitted by learned advocate for the petitioner that the impugned order is only an interlocutory order which does not decide upon any issue on merit, therefore no appeal or revision would lie against such order before a Division Bench of the High Court and the only recourse left with the petitioner would be to file an application under Article 227 of the Constitution of India.

Learned advocate further submitted that since the Courts under this High Court are guided by the Civil Rules and Order, an application under section 24 of the Hindu Marriage Act for maintenance pandente lite is required to be registered as a Miscellaneous Case under Rule 776(58) of the Civil Rules and Orders. It is contended that learned Judge, Family Court not having taken recourse to such provision, cannot proceed with the hearing of the application under section 24. It is therefore urged that a direction may be given to the learned Judge, Family Court, Port Blair to register the application of the respondent under section 24 of the Hindu Marriage Act, as a Miscellaneous case.

I have perused the impugned order as well as application for revision and the submissions made by learned advocates for the petitioner and the respondent/opposite party. It is undisputed that the application under section 24 of the Hindu Marriage Act filed by respondent herein in the year 2018 has not been registered as a miscellaneous case. In the impugned order, learned Trial Court has taken off the Mat. Suit from the peremptory board and fixed the application for hearing under section 24 of the Hindu Marriage Act without any direction for registering the same as a miscellaneous case. The order assailed before this Court is an interlocutory order against which no appeal/revision can be instituted

under section 19(3) of the Family Courts Act, 1984. Therefore, I hold that the course left open to the petitioner is to file an application for revision seeking invocation of the supervisory jurisdiction of this Court. In such view of the matter, I hold that the present application is maintainable. The impugned order dated 06.01.2022 suffers from irregularity due to the fact that without registering the application filed under section 24 of the Hindu Marriage Act, learned Judge, Family Court has fixed a date for hearing of the application. The impugned order is therefore set aside.

The civil revisional application is accordingly disposed of with a direction to the learned Judge, Family Court, Port Blair to register the application under section 24 of the Hindu Marriage Act as a Miscellaneous Case and thereafter to proceed with hearing of the same and dispose of the application at the earliest, preferably within a period of two months from the date of this order and to hear the Matrimonial suit thereafter.

Learned advocates for both parties shall extend all possible cooperation in proceeding with the trial of the suit in due course.

Let a copy of this judgment be transmitted to the learned Judge, Family Court for information and compliance.

(Ananda Kumar Mukherjee, J.)