Madhavan Vs. Chellamma

Madhavan vs Chellamma

Type Court Judgment Court Kerala Decided Nov 11, 2003

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Citation: sooperkanoon.com/731108
Court: Kerala High Court
Judge: J.B. Koshy and; K. Thankappan, JJ.
Decided On: Nov 11, 2003
Case Number: Mat. App. No. (Unnumbered of 2003)
Subject: Family

Case Summary

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

- CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of Petition for enhancement of maintenance dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under ...

Key legal issue: Family
Acts & sections: Kerala Family Court Act, 1984 - Sections 7, 19, 19(1) and 19(5); Code of Civil Procedure (CPC) - Order 43, Rule 1

Parties & Advocates

Appellant / Petitioner

Madhavan

Advocate Sathish Ninan, Adv.

Respondent

Chellamma

Legal References

Acts: Kerala Family Court Act, 1984 - Sections 7, 19, 19(1) and 19(5); Code of Civil Procedure (CPC) - Order 43, Rule 1
Cases Referred: Abdul Jaleel v. Sahida
Reported In: I(2004)DMC764; 2004(1)KLT908

Excerpt

- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. .....challenging the above order this appeal has been filed. the registry objected the same saying that such appeal can be filed only under order xliii, rule 1(a) of cpc. sections 19(1) and 19(5) of the family courts act, 1984 reads as follows:'19. appeal.- (1) 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, order, not being an interlocutory order, of a family court to the high court both on facts and on law.** ** **(5) except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a family court'.2. a finding of a family court on a preliminary issue that it has got jurisdiction or no jurisdiction to entertain the petition will certainly affect the rights of the parties and it was held in abdul jaleel v. sahida, 1997 (1) klt 734, that such orders are appealable. the appeal filed from an order of the family court will lie only before this court under section 19. section 19(5) specifically prohibits filing of appeal against any order of family court in any other forum. the question to be decided is whether impugned order of the family court in rejecting the petition as not maintainable is correct and the reliefs claimed in the o.p. will come within the scope of section 7 of the family courts act. it has to be decided not in an appeal filed under order xliii, rule 1(a) of cpc but in an appeal filed under section 19(1) of the family courts act. therefore the appeal is maintainable. registry to number the appeal.

Full Judgment

ORDER

J.B. Koshy, J.

1. The question to be decided is regarding the maintainability of appeal filed under Section 19 of the Family Courts Act against an order of the Family Court, returning the O.P. filed before it as not maintainable for presentation before the proper court. An application was filed before the Family Court by the Appellant. The Family Court found that the application will not lie before it and therefore it is not maintainable and therefore the Original Petition was returned for presentation before the proper court. Challenging the above order this appeal has been filed. The Registry objected the same saying that such appeal can be filed only under Order XLIII, Rule 1(a) of CPC. Sections 19(1) and 19(5) of the Family Courts Act, 1984 reads as follows:

'19. Appeal.- (1) 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, Order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

** ** **(5) Except as aforesaid, no appeal or revision shall lie to any court from any Judgment, Order or Decree of a Family Court'.

2. A finding of a Family Court on a preliminary issue that it has got jurisdiction or no jurisdiction to entertain the petition will certainly affect the rights of the parties and it was held in Abdul Jaleel v. Sahida, 1997 (1) KLT 734, that such orders are appealable. The appeal filed from an order of the Family Court will lie only before this Court under Section 19. Section 19(5) specifically prohibits filing of appeal against any order of Family Court in any other forum. The question to be decided is whether impugned order of the Family Court in rejecting the petition as not maintainable is correct and the reliefs claimed in the O.P. will come within the scope of Section 7 of the Family Courts Act. It has to be decided not in an appeal filed under Order XLIII, Rule 1(a) of CPC but in an appeal filed under Section 19(1) of the Family Courts Act. Therefore the appeal is maintainable. Registry to number the appeal.

Same Court & Year Kerala · 2003 Same Parties Madhavan vs Chellamma Same Subject Family Same Judge J.B. Koshy and; K. Thankappan, JJ. Acts & Sections Kerala Family Court Act, 1984 - Sections 7, 19, 19(1) and 19(...

Family