# Smt. Jyoti Revisionist v. Ankit Dubey Opp. Party

- **Citation:** (2023) 4 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-13
- **Case number:** Civil Revision No. 80 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jyoti-revisionist-v-ankit-dubey-opp-party-49975
- **Pages:** 10

## Headnote

A. Family Law - Family Court Act, 1984 -
Sections 10(1), 19(1) & 19(5) - Civil
Procedure Code - S. 115 - Revision -
Maintainability
-
Order
passed
on
amendment application - Interlocutory
order having the trapping of 'Judgment' is
appealable u/s 19 or not - Held, upon a
reading of Sections 10(1) and 19(5) of the
Act of 1984 together, the position that
emerges is that no revision from an order
of the Family Court is competent except
one that arises from a final order passed
under Chapter IX of the Code of Criminal
Procedure
-
The
party,
therefore,
aggrieved by an interlocutory order may
question it in appeal, if it has the
trappings of a judgment, or so to speak is
an order of moment pronouncing upon
rights of parties - There is no avenue of a
revision under Section 115 of the Code
open to a party aggrieved by an order of
the Family Court - High Court held
revision not maintainable. (Para 20, 23
and 24)
Revision dismissed. (E-1)
List of Cases cited:

## Text

4 All. Smt. Jyoti Vs. Ankit Dubey
455
(2023) 4 ILRA 455
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 80 of 2022

Smt. Jyoti ...Revisionist
Versus
Ankit Dubey ...Opp. Party

Counsel for the Revisionist:
Sri Gaurav Tripathi

Counsel for the Opp. Parties:
Sri Puneet Bhadauriya

A. Family Law - Family Court Act, 1984 -
Sections 10(1), 19(1) & 19(5) - Civil
Procedure Code - S. 115 - Revision -
Maintainability
-
Order
passed
on
amendment application - Interlocutory
order having the trapping of 'Judgment' is
appealable u/s 19 or not - Held, upon a
reading of Sections 10(1) and 19(5) of the
Act of 1984 together, the position that
emerges is that no revision from an order
of the Family Court is competent except
one that arises from a final order passed
under Chapter IX of the Code of Criminal
Procedure
-
The
party,
therefore,
aggrieved by an interlocutory order may
question it in appeal, if it has the
trappings of a judgment, or so to speak is
an order of moment pronouncing upon
rights of parties - There is no avenue of a
revision under Section 115 of the Code
open to a party aggrieved by an order of
the Family Court - High Court held
revision not maintainable. (Para 20, 23
and 24)
Revision dismissed. (E-1)
List of Cases cited:
1. Sudhanshu Gupta Vs Komal Gupta; 2019 (5)
AWC 4434
2. Smt. Raj Shri Agarwal @ Ram Shri Agarwal &
anr. Vs Sudheer Mohan & ors.; 2022 (5) AWC
4192
3. Major Raja P. Singh Vs Smt. Surendra
Kumari; AIR 1991 Raj 133
4. Kanupriya Vs Ashutosh Agrawal; AIR 2017 Utt
166
5. Smt. Kiran Bala Srivastava Vs Jai Prakash
Srivastava; 2005 (23) LCD 1
6. Yogish Arora Vs Smt. Jennette Yogish Arora
@ Miss Jennettee Dsouza; 2018 (9) ADJ 379
7. Sana Afrin Vs Zohaib Khan; AIR 2021 All 40
(Delivered by Hon'ble J.J. Munir, J.)

This civil revision is directed against
an order of Smt. Renu Singh, Additional
Principal Judge, Family Court, Etawah
dated May the 31st, 2022, allowing the
respondent's
application,
seeking
amendment to his petition for divorce
under Section 13 of the Hindu Marriage
Act, 1955 (for short, 'the HMA').

2. A petition under Section 13 of
HMA was instituted by the sole respondent,
Ankit Dubey against the revisionist, Smt.
Jyoti Dubey before the Principal Judge,
Family Court, Agra, which was numbered
on the file of the Principal Judge, Family
Court, aforesaid as HM Petition No.291 of
2017. A decree for divorce was sought on
the ground of cruelty.

3. It appears that the wife, who is a
resident of Etawah, has secured a transfer
of proceedings from the Principal Judge,
Family Court, Agra to the Family Court at
Etawah. The petition for divorce as
aforesaid is pending before the Additional
Principal Judge, Family Court, Etawah.
This fact is not stated on record, but that is
the only logical conclusion to be drawn
considering
that
the
proceedings
commenced before the Family Court, Agra
456 INDIAN LAW REPORTS ALLAHABAD SERIES
and are now pending at Etawah, where the
revisionist-wife resides.

4. Pending the divorce petition, the
respondent moved to amend it on the basis
of certain supervening events that he
sought to plead in order to establish his
case of actionable cruelty. The aforesaid
amendment application was made on
06.04.2022, which was assigned paper No.
57-Ka on the file of the Trial Court, that is
to say, the Court of the Additional Principal
Judge, Family Court, Etawah. An objection
to the amendment application was filed on
behalf of the revisionist which was marked
as paper No.65-Ga.

5. The thrust of the revisionist's
objection before the Trial Court was that
the amendment application being one made
seeking to plead facts based on events that
had occurred five years ago, the proposed
amendment is highly belated which ought
to be refused on that ground. Those events,
even if true, would give rise to a cause of
action to institute and pursue a criminal
prosecution. Otherwise too, the facts sought
to be pleaded were incorrect. The Trial
Court by the order impugned has granted
the amendment subject to payment of
Rs.3000/- in costs by the respondent to the
revisionist. The Trial Court has reasoned
that cruelty is already a cause of action
which the respondent has pleaded to found
his claim for a decree of divorce, besides
others. Since cruelty is already a ground
pleaded in the petition, the facts sought to
be brought in through amendment do not
change the nature of the respondent's case.
It was also remarked that issues have not
been framed as yet, and, therefore,
permitting the amendment would not
prejudice the revisionist's case. It was also
remarked that since the amendment has
been sought after a long delay, it would be
appropriate to compensate the other side by
awarding costs.

6. Heard Mr. Gaurav Tripathi, learned
Counsel for the revisionist in support of the
motion to admit this Revision to hearing
and Mr. Puneet Bhadauriya, Advocate who
has opposed the motion on the question of
maintainability.

7. Mr. Puneet Bhadauriya, learned
Counsel for the respondent has raised an
objection about the maintainability of this
civil revision under Section 115 of the
Code of Civil Procedure, 1908 (for short,
'the Code') urging that in the case of
proceedings before the Family Court,
governed by the Family Courts Act, 1984
(for short, 'the Act of 1984'), no revision
lies from any of its orders under Section
115 of the Code, which may otherwise be
maintainable on the ground that the order is
a ''case decided' within the meaning of that
provision in the Code, as amended in its
application to the State of Uttar Pradesh.
He submits elaborating that even if a civil
revision be competent against the kind of
the order impugned here, if passed by a
Civil Court, it would not be maintainable
since the order has been made by the
Family Court governed by the provisions of
the Act of 1984. The learned Counsel for
the respondent in aid of his submissions has
relied upon the decision of this Court in
Sudhanshu Gupta v. Komal Gupta, 2019
(5) AWC 4434. It is urged that the said
decision holds that an order rejecting an
amendment application, where it is made
by a Family Court, is not revisable but
appealable.

8. Refuting the above submission
advanced by Mr. Bhadauriya, Mr. Gaurav
Tripathi, learned Counsel for the revisionist
has relied upon a later decision of this
4 All. Smt. Jyoti Vs. Ankit Dubey
457
Court in Smt. Raj Shri Agarwal @ Ram
Shri Agarwal and another v. Sudheer
Mohan and others, 2022 (5) AWC 4192.
Learned Counsel for the revisionist submits
that in Smt. Raj Shri Agarwal (supra),
this Court has clearly held that against an
order rejecting an application seeking
amendment to the petition filed before the
Court, the remedy of a revision under
Section 115 of the Code is open, and a
petition
under
Article
227
of
the
Constitution to challenge that order is not
maintainable.

9. This Court has considered the rival
submissions advanced on behalf of parties
about the maintainability of this revision
under Section 115 of the Code.

10. The Act of 1984, under which the
Family Courts are established and function, is
a special statute, which sets up a special class
of courts for the trial and decision of a very
specific and different kind of causes, to wit,
matrimonial causes. Matrimonial causes are
reputed to be very different about everything
from other classes of litigation. This is so
because matrimonial causes are concerned
about resolving conflicts arising out of the
relationship between a husband and wife,
and, what is known to the contemporary
society as the nuclear family. A nuclear
family comprises the husband, the wife and
their
minor
children. This
family
in
contemporary times is the mainstay of
society, in the absence of which the society
itself may disintegrate or go irremediably
wayward. Therefore, it is the pious duty of
the
Family
Court
to
carefully
and
expeditiously resolve disputes relating to
marriage and family affairs. The enacting
clause of the Act of 1984 reads:

"An
Act
to
provide
for
the
establishment of Family Courts with a view
to promote conciliation in, and secure
speedy settlement of, disputes relating to
marriage and family affairs and for matters
connected therewith."

11. The statement of objects and
reasons of the Act of 1984 are of much
relevance here and, therefore, being quoted
below:

"Statement of Objects and Reasons.-
-Several associations of women, other
organisations and individuals have urged,
from time to time, that Family Courts be set
up for the settlement of family disputes,
where
emphasis
should
be
laid
on
conciliation
and
achieving
socially
desirable results and adherence to rigid
rules of procedure and evidence should be
eliminated. The Law Commission in its
59th report (1974) had also stressed that in
dealing with disputes concerning the family
the court ought to adopt an approach
radically different from that adopted in
ordinary civil proceedings and that it
should
make
reasonable
efforts
at
settlement before the commencement of the
trial. The Code of Civil Procedure was
amended in 1976 to provide for a special
procedure to be adopted in suits or
proceedings relating to matters concerning
the family. However, not much use has
been made by the courts in adopting this
conciliatory procedure and the courts
continue to deal with family disputes in the
same manner as other civil matters and the
same adversary approach prevails. The
need was, therefore, felt, in the public
interest, to establish Family Courts for
speedy settlement of family disputes.

2. The Bill inter alia, seeks to:--

(a) provide for establishment of
Family Courts by the State Governments;

(b) make it obligatory on the State
Governments to set up a Family Court in
458 INDIAN LAW REPORTS ALLAHABAD SERIES
every city or town with a population
exceeding one million;

(c) enable the State Governments to
set up, such courts in areas other than those
specified in (b) above;

(d) exclusively provide within the
jurisdiction of the family Courts the matters
relating to:--

(i) matrimonial relief, including nullity
of marriage, judicial separation, divorce,
restitution of conjugal rights, or declaration
as to the validity of a marriage or as to the
matrimonial status of any person;

(ii) the property of the spouses or of
either of them;

(iii) declaration as to the legitimacy of
any person;

(iv) guardianship of a person or the
custody of any minor;

(v)
maintenance,
including
proceedings under Chapter IX of the Code
of Criminal Procedure;

(e) make it obligatory on the part of
the Family Court to endeavour, in the first
instance to effect a reconciliation or a
settlement between the parties to a family
dispute. During this stage, the proceedings
will be informal and the rigid rules of
procedure shall not apply;

(f) provide for the association of social
welfare agencies, counsellors, etc., during
conciliation stage and also to secure the
services of medical and welfare experts;

(g) provide that the parties to a dispute
before a Family Court shall not be entitled,
as of right, to be represented by legal
practitioner. However, the Court may, in the
interest of justice, seek assistance of a legal
expert as amicus curiae;

(h) simplify the rules of evidence and
procedure so as to enable a Family Court to
deal effectually with a dispute;
(i) provide for only one right of appeal
which shall lie to the High Court.
3. The Bill seeks to achieve the above
objects."

12. The Family Courts though no
doubt Courts in the sense understood in law
as fora established for the hearing and
determination of disputes between parties,
are not Courts that are part of the general
civil judicature. As already remarked, these
are special courts established to decide a
special class of disputes, that is to say,
disputes relating to marriage and family
affairs. These Courts are required to be
established by the State Government by
virtue of Section 3 of the Act of 1984 after
consultation with the High Court by
notification. The local limits of the
territorial jurisdiction of a Family Court is
also required to be specified by notification
to be made by the State Government, also
in consultation with the High Court. Judges
to the Courts so established by the State
Government are again required to be
appointed by the State Government with
the concurrence of the High Court. Section
4 provides for the appointment of the
Judges
to
Family
Courts,
their
qualifications and other matters. The
provisions of Sections 3 and 4 if read
together would remove every iota of doubt
that Family Courts established under the
Act of 1984 are not part of the general civil
judicature, the latter being Courts which
exist for the determination of every civil
cause, where a civil right is affected, unless
their jurisdiction is expressly or impliedly
barred by statute. The Code applies to the
established Civil Courts proprio vigore and
all procedure to be followed in these Courts
is exhaustively governed by it. In the case
of the Family Courts, however, since these
exercise a facet of the jurisdiction, which
otherwise by its character was earlier
vested in the established Civil Courts, the
4 All. Smt. Jyoti Vs. Ankit Dubey
459
Statute (Act of 1984) in its wisdom
provides vide Section 10 thus :

"10.
Procedure
generally.--(1)
Subject to the other provisions of this Act
and the rules, the provisions of the Code of
Civil Procedure, 1908 (5 of 1908) and of
any other law for the time being in force
shall apply to the suits and proceedings
(other than the proceedings under Chapter
IX of the Code of Criminal Procedure,
1973) (2 of 1974), before a Family Court
and for the purposes of the said provisions
of the Code, Family Court shall be deemed
to be a civil court and shall have all the
powers of such court.

(2) Subject to the other provisions of
this Act and the rules, the provisions of the
Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX
of that Code before a Family Court.

(3) Nothing in sub-section (1) or subsection (2) shall prevent a Family Court
from laying down its own procedure with a
view to arrive at a settlement in respect of
the
subject-matter
of
the
suit
or
proceedings or at the truth of the facts
alleged by the one Party and denied by the
other."

(emphasis by Court)

13. Chapter V of the Act of 1984 is
also of immense importance to the
understanding of the issue that arises here.
The Chapter is titled: "Appeals and
Revisions". It comprises a single section, to
wit, Section 19. Section 19 and Chapter V
of the Act of 1984 is a complete code about
the remedies available to a party aggrieved
by an order made by the Family Court. It
would profit to reproduce in extenso the
provisions of Chapter V of the Act of 1984.
These read:

"Chapter V

APPEALS AND REVISIONS

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
or Criminal Procedure, 1973 (2 of 1974), or
in any other law, an appeal shall lie from
every judgement or order, not being an
interlocutory order, of a Family Court to
the High Court both on facts and on law.

(2) 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 of
Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this subsection 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 this section
shall be preferred within a period of thirty
days from the date of the judgement or
order of a Family Court.

(4) The High Court may, of its own
motion or otherwise, call for an 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 of a Family
Court.

(6) An appeal preferred under subsection (1) shall be heard by a Bench
consisting of two or more Judges."
460 INDIAN LAW REPORTS ALLAHABAD SERIES

(emphasis by Court)

14. Sudhanshu Gupta (supra), upon
which Mr. Puneet Bhadauriya has relied to
say that a civil revision from an order of the
Family Court, allowing an amendment
application is not maintainable, holds:

"11. From a bare perusal of Section
10, it emerges that the provisions of the
Code of Civil Procedure are applicable to
the proceedings under the Family Courts
Act. However, the provisions of CPC are
subject to other provisions of this Act and
the Rules framed, thereunder. Therefore,
the provisions of the CPC are applicable to
the proceedings before the Family Court
but these provisions are subject to and
circumcised by the provisions of the
Family Courts Act itself as also the rules
framed thereunder.

12. Section 19 on the other hand starts
with
a
non-obstante
clause,
namely,
"notwithstanding anything contained in the
Code of Civil Procedure." It therefore
necessarily follows that an appeal lies
against every order passed by the Family
Court, which is not an interlocutory order,
despite any provision of the CPC to the
contrary.

13. The Full Bench decision cited by
counsel for the revisionist, namely Rama
Shanker Tiwari Vs. Mahadeo and Ors.,
1968 (38) AWR 103, holds that an order
under Order 6 Rule 17 CPC, either
allowing
or
refusing
to
allow
an
amendment, is a "case decided".

14. Although, this judgment has been
relied upon by counsel for the revisionist to
submit that the revision is maintainable, in
my considered opinion, this judgment
necessarily holds against the revisionist.
Once it is accepted that an order rejecting
an amendment application is a case
decided, it necessarily follows that it is not
an interlocutory order and is therefore,
appealable under Section 19 of the Family
Courts Act.

15. The revision is not maintainable
also because sub-section 3 of Section 115
CPC as applicable in U.P. provides that the
Superior Court shall not, under this section,
vary or reverse any order made, except
where the order, if it had been made in
favour of the party applying for revision,
would have finally disposed of the suit or
other proceedings. Even if the order
impugned is set-aside and the amendment
application of the revisionist is allowed, the
proceedings before the Family Court shall
not stand finally disposed of.

16. Under the circumstances, the order
impugned in this revision being a final
order and not an interlocutory order, it is
clearly appealable under Section 19 of the
Family Courts Act and for this reason
alone, the revision is necessarily not
maintainable. This is so because no
revision lies against an order which is
appealable."

15. In Sudhanshu Gupta, this Court
has taken the view that a civil revision does
not lie from an order of the Family Court
rejecting an amendment application under
Order VI Rule 17 of the Code, because it
amounts to a case decided and, therefore,
not an interlocutory order within the
meaning of Section 19 of the Act of 1984,
making it appealable. It, therefore, excludes
a revision. While agreeing with the
conclusion in Sudhanshu Gupta, I am of
opinion that there could be added or very
different reasons to reach the same
conclusion.

16. On the other hand, the decision
relied upon by Mr. Gaurav Tripathi, learned
Counsel for the revisionist in Smt. Raj
Shri Agarwal (supra) shows that the said
4 All. Smt. Jyoti Vs. Ankit Dubey
461
decision has no bearing at all on the point
involved in this case. The reason is that the
petition
under
Article
227
of
the
Constitution, that was filed from an order
of the Trial Court rejecting the amendment
application in the aforesaid case, was an
order made by the Civil Court, that is to
say, the Additional District Judge, Agra in
an original suit. The principles, therefore,
laid down in Smt. Raj Shri Agarwal, do
not have the remotest application to the
issue that has arisen here.

17. A similar issue, though not
identical to the one that arises here, fell for
consideration before a Division Bench of
the Rajasthan High Court in Major Raja P.
Singh v. Smt. Surendra Kumari, AIR
1991 Raj 133. In Major Raja P. Singh
(supra), the Family Court, Jodhpur had
passed an order rejecting two separate
applications made by the appellant in that
case. The first was an application where the
appellant, who was the petitioner before the
Family Court, prayed that his signatures be
compared
with
those
on
documents
Exhibits 2, 15 and 52. By the other
application, relief was sought to add new
grounds to the divorce petition. Both the
applications were rejected by the Family
Court. As facts appear in the report, the
order rejecting amendment application was
impugned in appeal before the High Court
under Section 19 of the Act of 1984. The
issue precisely in the appeal before the
Division Bench was whether the order of
the Family Court could be regarded as final
and amenable to appeal under Section 19. It
was in that context that the Division Bench
held:

"11. The object of this Special Law of
the Family Courts Act is to decide the
matrimonial cases in a speedy manner. If,
the
order
rejecting
or
allowing
an
amendment application will be termed as
the case decided for the purpose of this Act
and is appealable then, in ordinary course
of law the decision of such cases would
take years to come to reach the finality of
the matter. In order to achieve the object of
the Act i.e. speedy settlement of dispute
relating to marriage, the purpose of
expeditious trial is frustrated. That apart if
the
legislature
intended
that
all
interlocutory order be appealable, it should
not have used the word in S. 19 of the Act
"not being an interlocutory order" and that
is why no appeal or revision has been
provided. This Court in D.B. Civil Misc.
Appeal No. 107/90 Smt. Vijay Kaur v.
Radhey Shyam decided on 1-8-1990 has
held that the order relating to adjournment
cost is an interlocutory order and appeal is
not maintainable u/Sec. 19 of the Act. In
this view of the matter, the order dated 6-41989 cannot be termed finally deciding the
case i.e. the controversy being settled. The
parties can agitate the point in appeal after
final disposal of the case by the trial court.
In our considered opinion, the allowing or
refusing an amendment is an interlocutory
order against which no appeal u/sec. 19 of
Act
is
provided.
In
conclusion
the
preliminary objection is sustained and it is
held that the order dated 6-4-1989 is an
interlocutory order and no appeal lies to
this Court." (emphasis by Court)

18. The issue whether an order by the
Family Court allowing amendment to the plaint
is appealable under Section 19 of the Act of 1984
came up for decision before a Division Bench of
Uttarakhand High Court in Kanupriya v.
Ashutosh Agrawal, AIR 2017 Utt 166. In
Kanupriya (supra) after an extensive review of
the authority on the point, it was held :

"16. Therefore, it can be seen that
there is no uniform understanding of the
462 INDIAN LAW REPORTS ALLAHABAD SERIES
word "interlocutory order". The word
assumes the meaning from the context of
the statute and the purpose of the statute.
We have already noticed that the Apex
Court in (1974) 2 SCC 387 took the view
that an order of amendment can, in certain
situations, be treated as a judgment. The
court took the view that, if the amendment
merely allows the plaintiff to state a new
cause of action or ask a new relief or
include a new ground of relief, all that
happens is that it is possible for the plaintiff
to make further contentions. The court does
not
decide
the
correctness
of
the
contentions at that stage. It was found that
such amendment merely regulates the
procedure applicable. It does not decide
any question touching the merit of the
controversy. In a case, where, however, the
defence of immunity available to the
defendant is taken away in the matter of
limitation, it becomes a judgment. That
case, as already noticed, related to an intracourt appeal. Here, we are concerned with
the Family Courts Act. Amendments of
pleadings are of different kinds. If an
appeal is allowed against amendments
ordered, one way to look at it is that the
matter would be decided at that stage and
he does not have to wait for an opportunity,
which he, undoubtedly, has to challenge the
order of amendment in the course of the
appeal against the final order, which would
be passed. It could be that, at that stage, if
the
appellate
court
finds
that
the
amendment
was
wholly
unjustifiably
allowed, the matter may merit a remand. If
the intention of the Legislature in excluding
interlocutory orders is to expedite the
proceedings in the matrimonial causes, will
not such a view hamper the object sought
to be achieved by the Legislature? Even
when a court allows an application for
amendment, it is settled law that the court
does not sit in judgment over the
correctness or the merit of the pleadings.
The
amended
proceedings
only
will
provide the framework within which the
trial would proceed, evidence adduced,
arguments
canvassed
and
decision
rendered. Further, the party has always a
right to challenge the order of amendment
in the appeal from the main judgment.
Also, it is not irrelevant to notice that the
party can, in appropriate cases, invoke the
jurisdiction under Article 226 of 227. The
advantage of taking the view that an order
of amendment will not be treated as a
judgment and will be treated only as
interlocutory order is that the purpose of
the Family Courts would, in one sense, be
advanced, inasmuch as, the delay which
attends the challenge of proceedings and
before the appellate court would stand
obviated. Ordinarily, amendments are to be
allowed liberally. Therefore, an order
allowing an amendment is rarely interfered
with.

17. Coming to the facts, this is not a
case, where any vested right by way of
limitation or any other right as such, which
is accrued to the defendant, is being taken
away. Two paragraphs are added by way of
amendment. In fact, in the original plaint
itself, it is stated that the marriage took
place on 21.05.2013 and that the appellant
left on 28.05.2013 for her paternal house.
English translation of paragraph 4 of the
original plaint reads as follows:

"4.
That
the
intention
of
the
respondent was always to stay away from
the petitioner and, on one pretext or the
other, she never gave matrimonial pleasure
to the petitioner and always tried to escape
from cohabitation and, after one week, on
28.05.2013, she went to her paternal house
along with her jewelry and clothes."

18. The amended paragraphs appear
to suggest that the marriage was not
consummated. As already noticed, the court
4 All. Smt. Jyoti Vs. Ankit Dubey
463
does not sit in judgment over the
correctness of the pleadings at the stage
when amendment is allowed. Certainly, the
burden is on the petitioner to establish his
case with convincing evidence. We cannot
even treat this as a case, even applying the
tests applied in (1981) 4 SCC 8 or (1974) 2
SCC 387, which would qualify as a
decision, which is amenable to appellate
jurisdiction under Section 19 of the Act."

19. It must be noticed that both in
Major Raja P. Singh and Kanupriya, the
Court had before it the issue whether an
application seeking amendment, rejected in
one case by the Family Court and allowed
in the other, would constitute a judgment
within the meaning of Section 19 so as to
be amenable to appeal under the aforesaid
provision. The Rajasthan High Court and
the Uttarakhand High Court both have laid
down law mindful of the fact that the object
of the Family Court is to provide speedy
justice in causes matrimonial or those
relating to the family. Their Lordships have
been
conscious
that
permitting
interlocutory challenge to orders granting
or refusing amendment, would work to
place fetters on the fast-tracked procedure
contemplated by the Statute. It has also
been noticed that the person who is
aggrieved by the order granting amendment
can in the appeal from the final judgment,
if the event goes against him/ her, assail
that order too. No doubt, their Lordships of
the Division Bench of the Uttarakhand
High Court have found a dichotomy
between classes of amendments, which
may or may not constitute a judgment
within the meaning of Section 19. This
Court need not dilate much on the subtlety
of principle about orders granting or
refusing amendment being amenable to an
appeal under Section 19 of the Act of 1984.
This is so because in the present case that is
not the point. The point here is whether
from an order granting or refusing an
amendment application by the Family
Court, a revision lies to this Court under
Section 115 of the Code. In the Rajasthan
decision, there is a remark that the
legislature did not intend all interlocutory
orders passed by the Family Court to be
appealable under Section 19 and that is
why no appeal or revision has been
provided under the Act of 1984.

20. The moot question, therefore, is
whether that kind of a power can be
inferred to be available to this Court under
Section 115 of the Code. A reading of
Section 10 of the Act of 1984 shows that
the provisions of the Code are generally
made applicable, but subject to other
provisions of the Act of 1984 and the
Rules. A juxtaposition of this provision
with sub-Section (5) of Section 19 shows
that sub-Section (5) expressly says that
except as provided under sub-Sections (1)
to (4) of Section 19, no appeal or revision
would lie to any Court from any judgment
or decree of a Family Court. The aforesaid
provision expressly bars all kinds of
revisions except an appeal envisaged under
Section 19(1) of the Act of 1984 or a
revision from a final order passed under
Chapter IX of the Code of Criminal
Procedure, 1973. No other kind of revision
is envisaged by the Act of 1984. Thus, upon
a reading of Sections 10(1) and 19(5) of the
Act of 1984 together, the position that
emerges is that no revision from an order of
the Family Court is competent except one
that arises from a final order passed under
Chapter IX of the Code of Criminal
Procedure. The party, therefore, aggrieved
by an interlocutory order may question it in
appeal, if it has the trappings of a
judgment, or so to speak is an order of
moment pronouncing upon rights of
464 INDIAN LAW REPORTS ALLAHABAD SERIES
parties. It is dwelling on that principle that
the Full Bench of this Court in Smt. Kiran
Bala
Srivastava
v.
Jai
Prakash
Srivastava, 2005 (23) LCD 1 held that an
order under Section 24 of the HMA
granting maintenance pendente lite is a
judgment, which is appealable under
Section 19 of the Act of 1984.

21. Likewise, a learned Single Judge
of this Court in Yogish Arora v. Smt.
Jennette Yogish Arora @ Miss Jennettee
Dsouza, 2018 (9) ADJ 379 held that an
order of temporary injunction passed by a
Family Court under Order XXXIX of the
Code
falls
in
the
category
of
an
intermediate order, to which finality is
attached. It has been observed that finality
has been attached at a particular stage of
proceedings to such an order of temporary
injunction,
which
would
render
it
appealable under Section 19(1) of the Act
of 1984.

22. By contrast, in Sana Afrin v.
Zohaib Khan, AIR 2021 All 40, an order
passed under Section 12 of the Guardians
and Wards Act, 1890 pending custody
proceedings under Section 25 of the last
mentioned Act, granting visitation rights to
enable the father to meet his child, was held
to be purely interlocutory and not amenable
to an appeal under Section 19(1) of the Act
of 1984.

23. In summation, therefore, orders
passed
by
the
Family
Court,
if
interlocutory, have to be established to be
ones that have trappings of a judgment in
order to enable a party to avail the remedy
of an appeal under Section 19(1) of the Act
of 1984. And, that is the only remedy
available by way of appellate procedures
under the Act of 1984. There is no avenue
of a revision under Section 115 of the Code
open to a party aggrieved by an order of the
Family Court. The provisions of the Code
though generally applicable, stand excluded
as regards the remedy of a revision under
Section 115 of the Code in view of the
provisions of Sections 10(1) and 19(5) of
the Act of 1984.

24. In view of what has been said
above, this Court finds this revision to be
not
maintainable.
It
is,
accordingly,
dismissed as not maintainable. It is made
clear that this order will not prejudice the
revisionist's right to seek such remedy
against
the
order
impugned
at
the
appropriate stage as advised.

25. Interim order dated 14.09.2022 is
hereby vacated.
----------
(2023) 4 ILRA 464
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.03.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Revision No. 167 of 2020

Anwar @ Shanu ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Anurag Narayan, Shailendra Kumar Mishra

Counsel for the Opp. Parties:
G.A., Farhan Alam Osmani

Criminal Law - Criminal Procedure Code,
1973 - Sections 125 & 125(B) - The
Muslim Women (Protection of Rights on
Divorce) Act, 1986 - Sections 3, 4 & 7 -
Criminal Revision - revisionist is the husband of
wife (opposite party no. 2) and father of
opposite party no. 3 - revisionist challenged the
impugned order by which Trial court ordered to