Amar Chand Sharma Vs. Smt. Sita Devi - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 4. i have heard learned counsel for the petitioner as well as the learned counsel for the non-petitioners and examined the impugned order passed by the district judge, alwar.narendra kumar jain, j.1. the petitioner has filed this criminal revision petition under section 397 cr.p.c. against the judgment and order dated 11th march, 2004 passed by the district judge, alwar in civil misc. application no. 41/31/2004, whereby an application under section 25 of the hindu marriage act, 1955 (in short 'the act' hereinafter) filed by wife-non-petitioner for permanent alimony and maintenance was allowed and petitioner was directed to pay a sum of rs. 1,000/- for his wife and rs. 750/- for his minor daughter anuradha, total rs. 1750/- per month. the petitioner in his revision petition has challenged that he filed an application under section 13 of the act for grant of decree of divorce in the court of district judge alwar. during the pendency of the said divorce petition, the non-petitioner earlier filed an application under section 24 of the act for grant of maintenance pendente lite. the district judge, alwar allowed the application under section 24 and directed the husband-petitioner to pay a sum of rs. 1500/- per month towards maintenance during the pendency of the divorce petition. the said order was challenged before this court by way of revision, which was dismissed.2. subsequently, the non-petitioner-wife filed an application for permanent alimony and maintenance under section 25 of the act on 21.2.2004. the said application was separately registered. the divorce petition under section 13 of the act filed by the petitioner was allowed by the district judge, alwar vide its separate judgment and order dated 11.3.2004 and on the same day a separate order was passed, whereby the application under section 25 of the act was allowed and petitioner-husband was directed to pay monthly maintenance amount of rs. 1750/- to the non-petitioner-wife for herself and her minor daughter anuradha. so far as order dated 11.3.2004 granting divorce is concerned, the non-petitioner-wife has already preferred an appeal before this court, which is pending for hearing. the order allowing application under section 25 of the act has been impugned in this criminal revision petition.3. the learned counsel for the non-petitioner has raised a preliminary objection about the maintainability of the present criminal revision petitioner. he submits that the impugned order passed on an application under section 25 of the act is appealable under sub-section (2) of section 28 of the act, 1955 and cannot be assailed in this criminal revision petition filed under section 397 cr.p.c. he submits that present revision petition is not maintainable in the eye of law and should be dismissed as such without going into the merits of the case.4. i have heard learned counsel for the petitioner as well as the learned counsel for the non-petitioners and examined the impugned order passed by the district judge, alwar.5. the question involved in the present revision petition is that as to whether an order passed under section 25 of the hindu marriage act can be challenged by way of revision under section 397 cr.p.c. or in appeal under section 28(2) of the act?6. for ready reference, sub-section (2) of section 28 of the hindu marriage act, 1955 is reproduced as under :-'28. appeals from decrees and orders.-(1) xxxx ... xxxx ...(2) orders made by the court in any proceedings under this act under section 25 or section 26 shall, subject to the provisions of sub-section (3) be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.'7. the above provision makes it clear that order passed under section 25 of the act is appealable under sub-section (2) of section 28 of the act, if the order is not an interim order. a bare perusal of the impugned order will show that it is final in nature. the interim order of maintenance is always passed under section 24 of the act, 1955 during the pendency of the proceedings. so far as application under section 25 of the act is concerned, the same is separate and independent proceeding. the position of law on the point is very clear and objection taken by the learned counsel for the non-petitioner is correct. therefore, i hold that present criminal revision petition under section 397 cr.p.c. against the order passed on an application under section 25 of the act of 1955 is not maintainable as the said order was appealable under sub-section (2) of section 28 of the act, 1955.8. therefore, this revision petition cannot be entertained and the same is hereby dismissed as not maintainable.