C. Govindaraj Vs. Smt. Padmini

C. Govindaraj vs Smt. Padmini

Type Court Judgment Court Karnataka Decided Nov 03, 2008

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Citation: sooperkanoon.com/383230
Court: Karnataka High Court
Judge: S.R. Bannurmath and ;A.N. Venugopala Gowda, JJ.
Decided On: Nov 03, 2008
Case Number: Miscellaneous First Appeal Nos. 7396 and 7397 of 2008
Subject: Family

Case Summary

AI-generated summary - not the official court judgment text.

Family Courts Act, 1984 (Act No. 66 of 1984) - Section 19--Appeals filed under--Payment of court fee under Schedule-II Article 3(iii) of the KCFSV Act--Office objection regarding--As per the office objection, court fee is payable as per schedule-II Article 1 of the KCFSV Act--The operation of the maxim 'Generalia sp...

Key legal issue: Family
Acts & sections: Hindu Marriage Act, 1955 - Sections 9, 13, 13(1), 13(1A) and 28; Karnataka Court Fees and Suite Valuation Act, 1958 - Schedule - Articles 1 and 3; Family Courts Act, 1984 - Sections 19

Parties & Advocates

Appellant / Petitioner

C. Govindaraj

Advocate D.R. Sundaresha and ;S.U.S. Pandith, Advs.

Respondent

Smt. Padmini

Advocate A.Y.N. Gupta, Adv.

Legal References

Acts: Hindu Marriage Act, 1955 - Sections 9, 13, 13(1), 13(1A) and 28; Karnataka Court Fees and Suite Valuation Act, 1958 - Schedule - Articles 1 and 3; Family Courts Act, 1984 - Sections 19
Reported In: AIR2009Kant108; ILR2009KAR21; 2009(1)KarLJ23; 2008(5)KCCR3469; 2009(1)KLJ23; 2009(3)AIRKarR331.(D.B).

Excerpt

family courts act, 1984 (act no. 66 of 1984) - section 19--appeals filed under--payment of court fee under schedule-ii article 3(iii) of the kcfsv act--office objection regarding--as per the office objection, court fee is payable as per schedule-ii article 1 of the kcfsv act--the operation of the maxim 'generalia speciali bus non derogant'--held, the appeals not being filed under section 28 of the hindu marriage act but under the special provision viz., section 19 of the family courts act, the court fee paid by valuing under schedule-ii article 3(iii) of the kcfsv act is just and proper.--further held, the family courts act has come into force in the year 1984 and after establishment of the family courts, under section 19 of the family courts act an appeal has been provided against the orders or judgments passed by a family court. this is a special statute and as such, prevails over general law especially in the light of non-obstinate clause. it is well settled law that in the event of conflict between a special law and a general law, the special law must always prevail. in case of conflict between a special law and a general law, even if both enacted by the same legislative authority, the special law must displace the general law to the extent of inconsistency. the operation of the maxim 'generalia speciali bus non derogant' has been approved and applied by the hon'ble supreme court in a catena of decisions. in the absence of corresponding provision in the kcfsv act regarding appeals arising from the orders of the family court unlike section 28 of the hindu marriage act and especially in view of the non obstante clause under section 19 of the family courts act, that the office objection cannot be upheld. - section 19: [s.r.bannurmath & a.n.venugopala gowda,jj] appeals filed under payment of court fee under schedule ii, article 3(iii) of the kcfsv act office objection regarding as per the office objection, court fee is payable as per schedule-ii, article 1 of the..........is liable to pay the court fee of rs. 100/- each as per schedule ii, article 1 of the kcfsv act.4. in this regard, it is the contention of the learned counsel for the appellant that, the appeals are not filed under section 28 of the hindu marriage act but under section 19 of the family courts act no. 66 of 1984 and as such, as there is no provision under schedule ii, article 1 regarding the court fee to be paid in respect of the matters under the family courts act, the payment of court fee of rs. 15/- as per schedule ii, article 3(iii) is just and correct.5. on perusal of the said provisions, it is to be noted that though the hindu marriage act is of the year 1955, the family courts act has come into force in the year 1984 and after establishment of the family courts, under section 19 of the family courts act an appeal has been provided against the orders or judgments passed by a family court. this is a special statute and as such, prevails over general law especially in the light of non obstante clause. it is well-settled law that in the event of conflict between a special law and a general law, the special law must always prevail. in case of conflict between a special law and a general law, even if both enacted by the same legislative authority, the special law must displace the general law to the extent of inconsistency. the operation of the maxim generalia specialibus non derogant has been approved and applied by the hon'ble supreme court in a catena of decisions.6.in the absence of corresponding provision in the kcfsv act regarding appeals arising from the orders of the family court unlike section 28 of the hindu marriage act and especially in view of the non obstante clause under section 19 of the family courts act, we find that the office objection cannot be upheld. as such, as the present appeals also being not filed under section 28 of the hindu marriage act but under the special provision viz., section 19 of the family courts act, the court fee paid by.....

Full Judgment

ORDER

1. Registry has raised the objection regarding deficit Court fee to be paid.

2. Both these appeals arise from the common judgment passed by the Family Court in the petitions filed under Sections 9 and 13(1)(i), (i-a), (i-b) and (1-A)(ii) of the Hindu Marriage Act, 1955 by the wife and husband respectively. The appellant in each of these cases has paid a Court fee of Rs. 15/- as per Schedule II, Article 1 of the Karnataka Court Fees and Suite Valuation Act, 1958 (hereinafter referred to as the 'KCFSV Act').

3. But, as per the office objection, Court fee is payable as per Schedule II, Article 1 of the KCFSV Act since, the appeal against the order passed under Section 9 or 13 of the Hindu Marriage Act is provided under Section 28 of the said Act. As such, the office states that the appellant is liable to pay the Court fee of Rs. 100/- each as per Schedule II, Article 1 of the KCFSV Act.

4. In this regard, it is the contention of the learned Counsel for the appellant that, the appeals are not filed under Section 28 of the Hindu Marriage Act but under Section 19 of the Family Courts Act No. 66 of 1984 and as such, as there is no provision under Schedule II, Article 1 regarding the Court fee to be paid in respect of the matters under the Family Courts Act, the payment of Court fee of Rs. 15/- as per Schedule II, Article 3(iii) is just and correct.

5. On perusal of the said provisions, it is to be noted that though the Hindu Marriage Act is of the year 1955, the Family Courts Act has come into force in the year 1984 and after establishment of the Family Courts, under Section 19 of the Family Courts Act an appeal has been provided against the orders or judgments passed by a Family Court. This is a special statute and as such, prevails over general law especially in the light of non obstante clause. It is well-settled law that in the event of conflict between a special law and a general law, the special law must always prevail. In case of conflict between a special law and a general law, even if both enacted by the same legislative authority, the special law must displace the general law to the extent of inconsistency. The operation of the maxim generalia specialibus non derogant has been approved and applied by the Hon'ble Supreme Court in a catena of decisions.

6.In the absence of corresponding provision in the KCFSV Act regarding appeals arising from the orders of the Family Court unlike Section 28 of the Hindu Marriage Act and especially in view of the non obstante clause under Section 19 of the Family Courts Act, we find that the office objection cannot be upheld. As such, as the present appeals also being not filed under Section 28 of the Hindu Marriage Act but under the special provision viz., Section 19 of the Family Courts Act, the Court fee paid by valuing under Schedule II, Article 3(iii) of the KCFSV Act is just and proper.

Accordingly, office objection stands overruled.

Same Court & Year Karnataka · 2008 Same Parties C. Govindaraj vs Smt. Padmini Same Subject Family Same Judge S.R. Bannurmath and ;A.N. Venugopala Gowda, JJ. Acts & Sections Hindu Marriage Act, 1955 - Sections 9, 13, 13(1), 13(1A) and ...

Family