Kanhikkamthoppu Parambil Radha Vs. Kondarappatt Velayudhan - Court Judgment

Excerpt:
family - revision in family orders - sections 7,19 and 20 of family courts act, 1984 and section 4 of guardians and wards act, 1890 - petitioner filed revision against order of delivery of custody of child to father by family court - petitioner pleaded involvement of father in death of mother - revision does not lie from interlocutory order passed by family court. - orderl. manoharan, j. 1. revision petitioner is the mother-in-law of the respondent. respondent married the daughter of the revision petitioner. in the marriage two children were born. the wife died in 1988. after her death the two children are residing with the revision petitioner, their grand mother. while so the respondent filed o. p. 258 of 1992 for the custody of his children under section 25 of the guardians and wards act, 1890. in that the revision petitioner filed i.a. 567 of 1993 undersection 10 read with section 151 cpc for staying of o. p. 258 of 1992 till the investigation as to the cause of death of her daughter on the basis of a complaint filed by her is completed. learned judge dismissed the petition. this revision is against the said order,2. a preliminary objection was taken by the respondent's counsel that the revision is not maintainable. according to him no revision is maintainable from the order under challenge as per the provisions in the family courts act, 1984 (for short 'the act'). learned counsel for the respondent made reliance on section 19(5) of the act in support of his said contention. on the other hand, learned counsel for the revision petitioner maintained that with due regard to section 48 of the guardians and wards act, 1890 read with section 3 thereof, a revision since is maintainable against interlocutory order passed under the guardians and wards act, and since under section 7(1) of the act the family court exercises the same jurisdiction as that of the district court the revision is maintainable. consequently according to him section 19(5) of the act should receive an interpretation which would give effect to the aforesaid provision of the guardians and wards act.3. for appreciating the said rival contentions it is necessary to read the aforesaid provisions. section 48 of the guardians and wards act reads :'48. save as provided by the last foregoing section and by section 622 of the code of civil procedure, an order made under this act shall be final and shall not be liable to be contested by suit or otherwise'.section 622 therein corresponds to section 115 of the present c.p.c. section 7 of the act so far as it is relevant reads :'7. jurisdiction -- (1) subject to the otherprovisions of this act, a family courtshall (a) have and exercise all the jurisdictionexercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the family court extends. explanation -- the suits and proceedings referred to in this sub-section are suits and proceedings of the following nature namely:-- (a) to (f) ........................... (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor.' since the order passed under the guardians and wards act is revisable under section 115 of the c. p.c. as noticed, it is the case of the petitioner, when the powers of the family court is understood in the light of section 7(1) of the act read with explanation, (g) thereof it could be seen that, the family court exercises the same power as that of the district court. therefore, according to him an order passed by the family court is also revisable under section 115 cpc.4. now the contention of the learned counsel for the respondent, as noticed, is based on sub-section (5) of section 19 of the act. sub-section (5) of section 19 enjoins that except as provided for in sub-sections (1) to(4) no appeal or revision shall lie to any court from any judgment, order or decree of a family court. section 19(1) provides for an appeal from any judgment or order other than interlocutory order of a family court. subsection (4) states that a revision shall lie from an order under chapter ix of c.p.c. other than an interlocutory order. and sub-section(5) enjoins except as indicated above noappeal or revision shall lie from any judgment, order or decree of a family court. thus the fact that revision is provided for only from order under chapter ix c.p.c., and since sub-section (5) specifically states no appeal or revision shall lie from any judgment, order or decree except as provided in the said section, it is clear that a revision from an interlocutory order is not maintainable.5. but according to the learned counsel for the respondent 'order' mentioned in sub-section (5) of section 19 of the act will not take in an interlocutory order as the one under challenge and that 'order' mentioned in the said sub-section would take in only final order. petitioner filed this revision against the order in question as the same is an interlocutory order. as a matter of fact, the argument also is, since the 'order' mentioned in subsection (5) of section 19 is final order; the bar contained therein cannot apply to interlocutory order with respect to which the remedy under section 115 cpc is preserved. learned counsel contended that, unless such an interpretation is placed on section 19(5) of the act the right of revision provided for under section 48 of the guardians and wards act read with section 7(1) thereof will become otiose. it was maintained by the learned counsel that interpretation must be aimed to give effect to all the provisions of a statute rather than to render any of them redundant.6. with due regard to the aforesaid argument, it is necessary to read section 19 of the act. section 19 of the act reads :'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 or order, not being an interlocutory order, of a family court to the high court both facts and on law. (2) no appeal shall lie from a decree or order passed by the family court with theconsent of the parties (or from an order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974). provided that nothing in this sub-section shall apply to any appeal pending before a high court or any order passed under chapter ix of the code of criminal procedure, 1973 (2 of 1974) before the commencement of the family courts (amendment) act 1991). (3) every appeal under the section shall be preferred within a period of thirty days from the date of the judgment or order of a family court. (4) the high court may, of its own motion or otherwise call for and examine the record of any proceeding in which the family court situate within its jurisdiction passed an order under chapter ix of the code of criminal procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding). (5) except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree a family court. (6) an appeal preferred under sub-section(1) shall be heard by a bench consisting of twoor more judges.' interpretation of a statute is to discover the intention of the legislature, and what the legislature states is its intention. in other words if the words employed in the provision do not admit of any ambiguity, the same should be given effect. in the interpretation of statutes by maxwell -- 12th edition at page 28 it is stated :'the rule of construction is 'to intend the legislature to have meant what they have actually expressed'. the object of all interpretation is to discover the intention of parliament, 'but the intention of parliament must be deduced from the language used, for 'it is wellaccepted that the beliefs and assumptions of those who frame acts of parliament cannot make the law'.'then at page 43 it is stated :'the so-called 'golden rule' is really a modification of the literal rule. it was stated in this way by parke b. 'it is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.'7. a plain reading of sub-section (5) of section 19 of the act particularly 'any judgment, order or decree of a family court' does not permit a restrictive meaning to 'order' mentioned in the said sub-section. the said sub-section itself gives an adjective 'any' to the 'order'. then it is clear that the said subsection takes in any order passed by the family court. ordinarily it will not be possible to read 'order' therein to mean only final order. the wording of sub-section (5) of section 19 of the act is such that the same is capable of taking in not only final order but also interlocutory order.8. now the question for consideration is whether such an interpretation will come in conflict with section 48 of the guardians and wards act and section 7 of the act. this has to be examined in the context of the other provisions in the act because a provision on a statute cannot be read in isolation. the effect of a provision has to be understood with due regard to the object of the legislation also. the act is enacted for the establishment of family courts with a view to promote conciliation and secure speedy settlement of dispute relating to marriage and family affairs and matters connected therewith. a speedy settlement of the dispute thus is the object of the act. the very scheme of the act wouldshows that the dispute relating to marriage, family affairs and matters connected therewith are brought under a particular forum armed with necessary provisions to ensure speedy settlement of the said type of disputes. consistent with the said object the act made restriction in the matter of appeal and revision. limiting the right in the matter of appeal and revision is one of the methods to accelerate the speedy settlement of the dispute. this cannot be ignored when one deais with the said aspect. thus the literal and natural meaning of any 'order' in sub-section (5) will take in interlocutory orders also and the same as and the same (sic) is consistent with the object of the legislation also.9. this interpretation will in no way come in conflict with any other provision in the act or the guardians and wards act. section 20 of the act states that the provisions therein shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the act. then the very section 7 of the act relied on by the learned counsel for the respondent to arque that the same read with section 48 of the guardians and wards act enables revision from the order of a family court itself states that the provisions therein are subject to the other provisions of the act; that is provisions inclusive of section 19(5) of the act. that means section 7 itself should be read subject to sections 19 and 20 of the act; than no question of conflict between section 7 and section 19 or 20 can arise so that one should adopt an interpretation to reconcile them. thus, it is not possible to agree with the learned counsel when he argued that unless 'order' mentioned in section 19(5) of the act is understood as final order, there would be conflict between the provisions in section 48 of the guardians and wards act read with section 7 of the act.10. a division bench of the bombay high court in sunil hansraj gupta v. payal sunil gupta, air 1991 bombay 423 has alsoexpressed the view that a revision will not lie from an interlocutory order of the family court. thus, it is clear that this revision is not competent and in view of the same it is not necessary to go into the other questions.in the result the revision fails and the same is dismissed.

Judgment:
ORDER

L. Manoharan, J.

1. Revision petitioner is the mother-in-law of the respondent. Respondent married the daughter of the revision petitioner. In the marriage two children were born. The wife died in 1988. After her death the two children are residing with the revision petitioner, their grand mother. While so the respondent filed O. P. 258 of 1992 for the custody of his children under Section 25 of the Guardians and Wards Act, 1890. In that the revision petitioner filed I.A. 567 of 1993 underSection 10 read with Section 151 CPC for staying of O. P. 258 of 1992 till the investigation as to the cause of death of her daughter on the basis of a complaint filed by her is completed. Learned Judge dismissed the petition. This revision is against the said order,

2. A preliminary objection was taken by the respondent's counsel that the revision is not maintainable. According to him no revision is maintainable from the order under challenge as per the provisions in the Family Courts Act, 1984 (for short 'the Act'). Learned counsel for the respondent made reliance on Section 19(5) of the Act in support of his said contention. On the other hand, learned counsel for the revision petitioner maintained that with due regard to Section 48 of the Guardians and Wards Act, 1890 read with Section 3 thereof, a revision since is maintainable against interlocutory order passed under the Guardians and Wards Act, and since under Section 7(1) of the Act the Family Court exercises the same jurisdiction as that of the District Court the revision is maintainable. Consequently according to him Section 19(5) of the Act should receive an interpretation which would give effect to the aforesaid provision of the Guardians and Wards Act.

3. For appreciating the said rival contentions it is necessary to read the aforesaid provisions. Section 48 of the Guardians and Wards Act reads :

'48. Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise'.

Section 622 therein corresponds to Section 115 of the present C.P.C. Section 7 of the Act so far as it is relevant reads :

'7. Jurisdiction -- (1) Subject to the otherprovisions of this Act, A Family Courtshall

(a) have and exercise all the jurisdictionexercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation -- The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature namely:--

(a) to (f) ...........................

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to any minor.'

Since the order passed under the Guardians and Wards Act is revisable under Section 115 of the C. P.C. as noticed, it is the case of the petitioner, when the powers of the Family Court is understood in the light of Section 7(1) of the Act read with Explanation, (g) thereof it could be seen that, the Family Court exercises the same power as that of the District Court. Therefore, according to him an order passed by the Family Court is also revisable under Section 115 CPC.

4. Now the contention of the learned counsel for the respondent, as noticed, is based on Sub-section (5) of Section 19 of the Act. Sub-section (5) of Section 19 enjoins that except as provided for in Sub-sections (1) to(4) no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. Section 19(1) provides for an appeal from any judgment or order other than interlocutory order of a Family Court. Subsection (4) states that a revision shall lie from an order under Chapter IX of C.P.C. other than an interlocutory order. And Sub-section(5) enjoins except as indicated above noappeal or revision shall lie from any judgment, order or decree of a Family Court. Thus the fact that revision is provided for only from Order under Chapter IX C.P.C., and since Sub-section (5) specifically states no appeal or revision shall lie from any judgment, order or decree except as provided in the said section, it is clear that a revision from an interlocutory order is not maintainable.

5. But according to the learned counsel for the respondent 'order' mentioned in Sub-section (5) of Section 19 of the Act will not take in an interlocutory order as the one under challenge and that 'order' mentioned in the said Sub-section would take in only final order. Petitioner filed this revision against the order in question as the same is an interlocutory order. As a matter of fact, the argument also is, since the 'order' mentioned in Subsection (5) of Section 19 is final order; the bar contained therein cannot apply to interlocutory order with respect to which the remedy under Section 115 CPC is preserved. Learned counsel contended that, unless such an interpretation is placed on Section 19(5) of the Act the right of revision provided for under Section 48 of the Guardians and Wards Act read with Section 7(1) thereof will become otiose. It was maintained by the learned counsel that interpretation must be aimed to give effect to all the provisions of a statute rather than to render any of them redundant.

6. With due regard to the aforesaid argument, it is necessary to read Section 19 of the Act. Section 19 of the Act reads :

'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 or order, not being an interlocutory order, of a Family Court to the High Court both facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with theconsent of the parties (or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974).

Provided that nothing in this Sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act 1991).

(3) Every appeal under the section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding).

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree a Family Court.

(6) An appeal preferred under Sub-section(1) shall be heard by a Bench consisting of twoor more judges.'

Interpretation of a statute is to discover the intention of the legislature, and what the legislature states is its intention. In other words if the words employed in the provision do not admit of any ambiguity, the same should be given effect. In the Interpretation of Statutes by Maxwell -- 12th Edition at page 28 it is stated :

'The rule of construction is 'to intend the Legislature to have meant what they have actually expressed'. The object of all interpretation is to discover the intention of parliament, 'but the intention of parliament must be deduced from the language used, for 'it is wellaccepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law'.'

Then at page 43 it is stated :

'The so-called 'golden rule' is really a modification of the literal rule. It was stated in this way by Parke B. 'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.'

7. A plain reading of Sub-section (5) of Section 19 of the Act particularly 'any judgment, order or decree of a Family Court' does not permit a restrictive meaning to 'order' mentioned in the said Sub-section. The said Sub-section itself gives an adjective 'any' to the 'order'. Then it is clear that the said subsection takes in any order passed by the Family Court. Ordinarily it will not be possible to read 'order' therein to mean only final order. The wording of Sub-section (5) of Section 19 of the Act is such that the same is capable of taking in not only final order but also interlocutory order.

8. Now the question for consideration is whether such an interpretation will come in conflict with Section 48 of the Guardians and Wards Act and Section 7 of the Act. This has to be examined in the context of the other provisions in the Act because a provision on a statute cannot be read in isolation. The effect of a provision has to be understood with due regard to the object of the legislation also. The Act is enacted for the establishment of family courts with a view to promote conciliation and secure speedy settlement of dispute relating to marriage and family affairs and matters connected therewith. A speedy settlement of the dispute thus is the object of the Act. The very scheme of the Act wouldshows that the dispute relating to marriage, family affairs and matters connected therewith are brought under a particular forum armed with necessary provisions to ensure speedy settlement of the said type of disputes. Consistent with the said object the Act made restriction in the matter of appeal and revision. Limiting the right in the matter of appeal and revision is one of the methods to accelerate the speedy settlement of the dispute. This cannot be ignored when one deais with the said aspect. Thus the literal and natural meaning of any 'order' in Sub-section (5) will take in interlocutory orders also and the same as and the same (sic) is consistent with the object of the legislation also.

9. This interpretation will in no way come in conflict with any other provision in the Act or the Guardians and Wards Act. Section 20 of the Act states that the provisions therein shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act. Then the very Section 7 of the Act relied on by the learned counsel for the respondent to arque that the same read with Section 48 of the Guardians and Wards Act enables revision from the order of a Family Court itself states that the provisions therein are subject to the other provisions of the Act; that is provisions inclusive of Section 19(5) of the Act. That means Section 7 itself should be read subject to Sections 19 and 20 of the Act; than no question of conflict between Section 7 and Section 19 or 20 can arise so that one should adopt an interpretation to reconcile them. Thus, it is not possible to agree with the learned counsel when he argued that unless 'order' mentioned in Section 19(5) of the Act is understood as final order, there would be conflict between the provisions in Section 48 of the Guardians and Wards Act read with Section 7 of the Act.

10. A Division Bench of the Bombay High Court in Sunil Hansraj Gupta v. Payal Sunil Gupta, AIR 1991 Bombay 423 has alsoexpressed the view that a revision will not lie from an interlocutory order of the Family Court. Thus, it is clear that this revision is not competent and in view of the same it is not necessary to go into the other questions.

In the result the revision fails and the same is dismissed.