The Allahabad High Court has clarified that appeals against Family Court orders must be filed strictly under the provisions of the Family Court Act, 1984, and not under the Criminal Procedure Code or its corresponding in the Bharatiya Nagrik Suraksha Sanhita, 2023.
A single-judge bench of Justice Abdul Moin heard an appeal filed by Jitendra Kumar Lakhmani.
By means of the appeal filed under Section 380 of Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant seeks to challenge the order dated 24.07.2024 passed by the Family Court whereby the application filed by the appellant under Section 340 of the Code, 1973 has been rejected.
A preliminary objection has been taken by Piyush Kumar Singh, AGA appearing on behalf of respondent no 1, that considering the provisions of Section 19 of the Family Court Act, 1984, the appellant will have to file an appeal under the provisions of the Act, 1984 itself and the appeal would not be maintainable.
AGA argued that Section 19 of the Act, 1984 clearly provides for filing of an appeal and as such, the appeal filed under the provisions of the Code, 1973 would not be maintainable.
The appeal has been filed under Section 341 of the Code, 1973 (now Section 380 of BNSS, 2023) aggrieved against the order dated 24.07.2024 whereby the application filed under Section 340 of the Code, 1973 has been rejected by the Family Court.
The Court observed,
From perusal of the provisions of Section 19 of the Act, 1984, it emerges that the Act categorically provides that except as provided in sub-section (2) of Section 19 of the Act, 1984 and notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 on facts and on law.
Sub-section (2) of Section 19 of the Act, 1984 provides 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 Code.
The order which is sought to be challenged in the instant appeal is not an order passed on the basis of consent between the parties nor an order passed under Chapter IX of the Code, meaning thereby that the provisions of subsection (2) of Section 19 of the Act, 1984 would have no applicability. Thus, it is the provisions of sub-section (1) of Section 19 of the Act, 1984 which would be applicable.
Consequently, once the Act, 1984 provides for filing of an appeal from every judgment or order not being an interlocutory order of a Family Court except an order passed under Chapter IX of the Code and in the case it is an order by which an application filed under Section 340 of the Code has been rejected which falls under Chapter XXVI of the Code. Therefore, it is only an appeal under the Act, 1984 which would lie in case the appellant herein is aggrieved by the said order.
The Court further observed,
Considering the aforesaid, it is thus apparent that in case the appellant herein is aggrieved by an order by which his application under Section 340 of the Code has been rejected consequently the only remedy available to him is to challenge the said order by filing of an appeal under Section 19(1) of the Act, 1984 and the appeal filed under the provisions of the Code or BNSS would not be maintainable keeping in view the non-obstante clause as per sub-section (1) of Section 19 of the Act, 1984 and the Act, 1984 being a special Act.
Further, whether the order by which the application under Section 340 of the Code has been rejected would be an interlocutory order or an order is also no longer res-integra keeping in view the Full Bench judgment in the case of Kiran Bala Srivastava vs Jai Prakash Srivastava, wherein considering the Full Bench of the Court which has been passed after considering the judgment of the Supreme Court in the case of Shah Babulal Khimji vs Jayaben – AIR 1981 SC 1786, it is apparent that the order passed under Section 340 of the Code would be an ‘order’ as per Section 19 of the Act, 1984 and accordingly it is an appeal which would be maintainable under the provisions of the Act, 1984.
Accordingly, the Court dismissed as withdrawn the appeal and granted liberty to the appellant.