SUNITA KUMARI Vs. PREM KUMAR

JUDGEMENT

(1.) The issue referred to the Full Bench for adjudication at the very initial stage of filing of present appeals is whether these appeals under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as 'the Act'), preferred against the judgment and order of a Family Court should be treated and recorded as First Appeal or as Miscellaneous Appeal. This issue being an issue of law does not require going into the facts of the appeals.

(2.) However, some facts which may be helpful in deciding the issue in question, relate to Miscellaneous Appeal No. 191 of 2009 and are noticed in brief. This appeal has been filed against an order dated 19-2-2009 passed in Misc. Case No. 11 of 2000 by Principal Judge, Family Court, Muzaffarpur whereby and whereunder the judgment and decree dated 7-10-1966 obtained by the appellant's husband against the private respondent, the wife of the appellant has been set aside on accepting the plea of the respondent wife that the ex parte judgment and decree of divorce had been obtained without notice to her. The result of the order under appeal is to revive the original suit No. 12 of 1964 which has to be decided afresh in accordance with law. This order does not amount to a decree but is appealable under Section 19 of the Act.

(3.) The reference to the Full Bench has been necessitated on account of two conflicting Division Bench judgments of this Court. In the case decided earlier, Raj Kumar Sana v. Ritu Kala Saran, 2008 (2) PLJR, 211, Section 19 of the Act providing for appeal from a judgment or order, not being an interlocutory order of a Family Court was quoted and on the basis of an observation- "it further appears that orders passed by Family Court is in the form of a decree," it was concluded that a decree drawn in a suit can be tested by the High Court only in a First Appeal and not in a Miscellaneous appeal. On the basis of this judgment, appeals preferred under Section 19 of the Act were labelled as First Appeals.