Mrs. Vira Chatur Kripalani vs Mr. Chatur Tahilram Kripalani on 25 January, 2018

FCA-143-15(10)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.143 OF 2015
WITH
CIVIL APPLICATION NO.258 OF 2016

Mrs. Vira Chatur Kripalani )
Age 68 years Occ Housewife )
Adult, Hindu, Indian Inhabitant )
Residing at A-501, Mount View, )
Aarohi Co-op Hsg Society )
Off Marol Maroshi Road, )
Andheri (E) Mumbai 400059 )
also having add: Flat No.A-204, )
Gera Landmark Kalyani Nagar ) ..Appellant

Vs.
Mr. Chatur Tahilram Kripalani )
Age 71 years, Occ Advocate )
Adult, Hindu, Indian Inhabitant )
Residing at Flat-A-2014, Gera )
Landmark Kalyani Nagar, )
Pune 411006 ) ..Respondent

Mr. P. J. Thorat for the Appellant
None for the Respondent

CORAM :R. M. SAVANT,
SANDEEP K SHINDE,JJ
DATE : 25th JANUARY, 2018
ORAL JUDGMENT

1 The above Family Court Appeal came to be admitted on 16-9-

2015. The same is directed against the judgment and order dated 22-4-2015

passed by the Learned Judge of the Family Court whereby the Petition being

No.E-98/2013 filed by the Appellant under Section 125 of CrPC along with

Sections 18, 20 and 22 of the Protection of Women from Domestic Violence

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Act, 2005, came to be dismissed.

2 In the above Appeal, the Appellant has filed the instant Civil

Application No.258 of 2015, claiming the following interim reliefs pending the

above Family Court Appeal:

(a)Pending the hearing and final disposal of the
Appeal, the Respondent be directed to pay
Rs.30,000/- per month to me by way of interim
maintenance.

(b) Pending the hearing and final the Hon’ble
Court may be directed the Respondent to allow
me to stay in my matrimonial house at Pune being
Flat No.A-204, Gera Landmark, Kalyani Nagar,
Pune 411006.

3 To the above Civil Application, the Respondent husband has filed

an Affidavit in Reply dated 21-9-2016, in which, in paragraph 7 he has taken

an objection to the maintainability of the above Family Court Appeal under

Section 19 of the Family Courts Act 1984, on the ground that the said Petition

No.E-98 of 2013 was filed by the Appellant under Section 125 of the CrPC and

Sections 18, 20 and 22 of the Domestic Violence Act, 2005. He has thereafter

reproduced Section 19 of the Family Courts Act in verbatim so as to buttress

his case of the above Family Court Appeal being not maintainable.

4 The above Civil Application had come up before a Division Bench

of this Court on 14-12-2017. On the said day though the Respondent had not

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appeared, the Division Bench considered the reply filed on behalf of the

Respondent and recorded as under:

On a reading of the reply filed by the respondent,
we find much force in the objection raised on
behalf of the respondent that the appellant would
not be entitled to file an appeal against the order
passed under Chapter IX of the Code of Civil
Procedure, 1908 in view of the provisions of
Sections 19(2) and 19(4) of the Family Courts
Act, 1984. We, prima facie, find that the prayer
made by the applicant before the Family Court for
grant maintenance of Rs.30,000/per month was
made under the provisions of
Section 125 of the
Cr.P.C. Also, against a final order passed under the
provisions of the Protection of Women from
Domestic Violence Act, 2005, an appeal would lie
to the Court of Sessions in view of the provisions
of
Section 29 of the Act of 2005. Since we are
prima facie inclined to uphold the preliminary
objection raised on behalf of the respondent, the
learned Counsel for the appellant seeks some
time to find out the case law on the aforesaid
aspect. Hence, stand over after Christmas
Vacations.

That is how the hearing as regards the objection in respect of the

maintainability of the above Family Court Appeal is before us for

consideration.

5 In the context of the said objection raised on behalf of the

Respondent, it would be apposite to reproduce Section 7(2) of the Family

Courts Act and Sections 18, 20, 22 and 26 of the Domestic Violence Act:

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Section 7(2) of the Family Courts Act

7(2) Subject to the other provisions of this Act, a
Family Court shall also have and exercise–

(a) the jurisdiction exerciseable by a Magistrate
of the first class under Chapter IX (relating to
order for maintenance of wife, children and
parents)
of the Code of Criminal Procedure, 1973
(2 of 1974) and

(b) such other jurisdiction as may be conferred on
it by any other enactment

Sections 18, 20, 22 26 of the Domestic
Violence Act

18. Protection orders.–The Magistrate may, after
giving the aggrieved person and the respondent
an opportunity of being heard and on being
prima facie satisfied that domestic violence has
taken place or is likely to take place, pass a
protection order in favour of the aggrieved person
and prohibit the respondent from–

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of
domestic violence;

(c) entering the place of employment of the
aggrieved person or, if the person aggrieved is a
child, its school or any other place frequented by
the aggrieved person;

(d) attempting to communicate in any form,
whatsoever, with the aggrieved person, including
personal, oral or written or electronic or
telephonic contact;

(e) alienating any assets, operating bank lockers
or bank accounts used or held or enjoyed by both
the parties, jointly by the aggrieved person and
the respondent or singly by the respondent,
including her stridhan or any other property held
either jointly by the parties or separately by them
without the leave of the Magistrate;

(f) causing violence to the dependants, other
relatives or any person who give the aggrieved
person assistance from domestic violence;

(g) committing any other act as specified in the

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protection order.

20. Monetary reliefs.–

1. While disposing of an application under sub-
section (1) of
section 12, the Magistrate may
direct the respondent to pay monetary relief to
meet the expenses incurred and losses suffered
by the aggrieved person and any child of the
aggrieved person as a result of the domestic
violence and such relief may include but is not
limited to–

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction,
damage or removal of any property from the
control of the aggrieved person; and

(d) the maintenance for the aggrieved person as
well as her children, if any, including an order
under or in addition to an order of maintenance
under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law for
the time being in force.

(2) The monetary relief granted under this
section shall be adequate, fair and reasonable
and consistent with the standard of living to
which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order
an appropriate lump sum payment or monthly
payments of maintenance, as the nature and
circumstances of the case may require.
(4) The Magistrate shall send a copy of the order
for monetary relief made under sub-section (1) to
the parties to the application and to the in-charge
of the police station within the local limits of
whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief
granted to the aggrieved person within the
period specified in the order under sub-section
(1).

(6) Upon the failure on the part of the
respondent to make payment in terms of the
order under sub-section (1), the Magistrate may
direct the employer or a debtor of the

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respondent, to directly pay to the aggrieved
person or to deposit with the court a portion of
the wages or salaries or debt due to or accrued to
the credit of the respondent, which amount may
be adjusted towards the monetary relief payable
by the respondent.

22. Compensation orders.–In addition to other
reliefs as may be granted under this Act, the
Magistrate may on an application being made by
the aggrieved person, pass an order directing the
respondent to pay compensation and damages
for the injuries, including mental torture and
emotional distress, caused by the acts of domestic
violence committed by that respondent.

26. Relief in other suits and legal proceedings.–
(1) Any relief available under
sections 18, 19, 20,
21 and 22 may also be sought in any legal
proceeding, before a civil court, family court or a
criminal court, affecting the aggrieved person
and the respondent whether such proceeding was
initiated before or after the commencement of
this Act.

(2) Any relief referred to in sub-section (1) may
be sought for in addition to and along with any
other relief that the aggrieved person may seek in
such suit or legal proceeding before a civil or
criminal court.

(3) In case any relief has been obtained by the
aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to
inform the Magistrate of the grant of such relief.

Before proceeding to analyse the aforesaid statutory provisions, it

would be relevant to refer to the Petition No.E-98 of 2013 filed by the

Appellant. The cause title of the said Petition reads thus:

Petition for maintenance u/s 125 of Criminal
Procedure Code, 1973 read with
Section 18, 20
and
22 of the Protection of Women from
Domestic Violence Act,

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Paragraph 27 of the said Petition which comprises prayer clauses

reads thus:

(a) The Respondent be directed to pay a sum of
Rs.30,000/- per month to the Petitioner as
permanent maintenance.

(b) Pending the hearing and final disposal of the
Petition, the respondent be directed to pay
Rs.30,000/- per month to the petitioner by way
of interim maintenance.

(c) The Respondent be directed to pay to the
petitioner Rs.10,00,000/- for mental and
emotional distress.

(d) The Respondent be directed by this Hon’ble
Court to allow the petitioner to stay in her
matrimonial house at Pune being flat No.204,
Gera Landmark, Kalyani Nagar, Pune 411006.

(e) Pending the hearing and final the Hon’ble
Court may be directed the Respondent to allow
the petitioner to stay in her matrimonial house at
Pune being flat No.204, Gera Landmark, Kalyani
Nagar, Pune 411006.

(f) Ad-interim and interim reliefs in terms of
prayer clauses (b) and (e)

6 Hence a reading of the said Petition being E-98 of 2013 discloses

that the same was filed for maintenance under Section 125 of the CrPC read

with Sections 18, 20 and 22 of the Domestic Violence Act. The relief sought

vide prayers comprised in paragraph 27 therefore are ascribable to the said

provisions. The first question therefore arises is the jurisdiction of the Family

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Court to try the application under Sections 18, 20 and 22 of the Domestic

Violence Act. The Family Court derives the jurisdiction to try the application

under Section 125 of the CrPC on account of Section 7 of the Family Courts

Act and especially sub-section(2) thereof. In so far as an application under

Sections 18, 20 22 of the Domestic Violence Act is concerned, Section 26 of

the Domestic Violence Act enables an aggrieved person to seek any reliefs

referred to in sub Section (1) of the said Section 26 in any legal proceedings

before the Civil Court, Family Court or the Criminal Court. Hence in the

instant case, by virtue of Section 7(2) of the Family Courts Act, the

proceedings under Section 125 of the CrPC lie before the Family Court. In

view of Section 26 of the Domestic Violence Act the reliefs claimed under

Sections 18, 19, 20, 21 and 22 can also be sought before the Family Court if

there is any legal proceeding before the Family Court. The Family Court

therefore exercises jurisdiction in respect of an application made under

Sections 18, 19, 20, 21 and 22 of the Domestic Violence Act by virtue of

Section 26 of the Domestic Violence Act, if the reliefs sought vide the said

application are in addition to the reliefs sought in any other proceedings

before the Family Court. Hence in the instant case the additional relief

claimed under the Domestic Violence Act can be said to be an adjunct to the

relief claimed in the proceedings under Section 125 of the CrPC which the

Family Court has undoubtedly the jurisdiction in view of Section 7(2) of the

Family Courts Act.

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7 This is in our view can be the analysis of the statutory provisions

which enable the Family Court to exercise the jurisdiction in so far as the

additional reliefs referrable to Sections 18, 19, 20, 21 and 22 of the Domestic

Violence Act are concerned. The Appeals can be filed under Section 19(1) of

the Family Courts Act against any judgment or order not being an interlocutory

order of a Family Court, in this Court, both on facts and on law. The said sub-

section (1) is a non-obstante clause in as much as the same is notwithstanding

anything contained in the Code of Civil Procedure or in the Code of Criminal

Procedure. However, sub-section (2) of Section 19 carves out an exception to

the said non -obstante clause. A reading of sub-section (2) therefore indicates

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

CrPC. Hence in so far as a decree or order passed by the Family Court in a

proceeding filed under Chapter IX of the CrPC is concerned, an Appeal would

not lie.

8 The Learned Counsel appearing on behalf of the Applicant Mr.

Thorat would contend that having regard to the non-obstante clause being

sub-section (1) of Section 19, the proceedings by way of a Revision cannot be

filed against an order passed under Section 125 read with the relevant

provisions of the Domestic Violence Act.

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9 We are unable to accept the said contention urged by the Learned

Counsel especially having regard to the clear terms in which sub-section (2) of

Section 19 is couched. As indicated above, the said sub-section (2) carves out

an exception in so far as the non-obstante clause is concerned. Inclusion of the

words “or any order passed under Chapter IX of the Code of Criminal

Procedure Code” in the year 1991 by amendment, in our view was to bring

about uniformity in respect of the remedy available against an order passed

under Section 125 as otherwise a litigant who files proceedings under Section

125 before a Criminal Court, would be entitled to file a Revision, whereas a

litigant who files a proceeding under Section 125 before the Family Court

could file an Appeal namely a Family Court Appeal in this Court as per the

unamended Sub-Section of Section 19. Since the relief sought under Sections

18, 20 and 22 of Domestic Violence Act can be said to be an adjunct to the

relief sought under Section 125 of CrPC and since by virtue of sub-section (2)

of Section 19 of the Family Courts Act, an Appeal is barred against an order

passed under Section 125 of the CrPC, the remedy of the Appellant if any is to

be found in Section 19(4) of the Family Courts Act, namely that the Appellant

would have to file a Revision in this Court. We therefore uphold the

preliminary objection raised by the Respondent as regards the maintainability

of the above Family Court Appeal. We accordingly hold that the above Appeal

is not maintainable and that the Appellant would have to file a Revision under

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Section 19(4) of the Family Courts Act, in this Court. The above Family Court

Appeal is accordingly dismissed as not maintainable.

10 However, the Appellant is at liberty to file a Revision under

Section 19(4) of the Family Courts Act, 1984. If any such Revision is filed, the

fact that the Appellant was prosecuting the instant Family Court Appeal from

May 2015 till this date, would be considered by the concerned Court, if the

issue of limitation arises.

11 In view of the fact that the above Family Court Appeal is held as

not maintainable, the above Civil Application is accordingly disposed of with

liberty to claim the relief claimed in the Civil Application in appropriate

proceedings.

[SANDEEP K. SHINDE, J] [R.M.SAVANT, J]

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