Revision petition u/s115 cpc or article 227 in divorce
Raman
(Querist) 31 October 2017
This query is : Resolved
Sir,
In one of my personal case, the District Court dismissed the Divorce petition of my cousin.Subsequently, he gets acquitted from dowry case, he then filed the review petition and adduce the copy of the acquittal order. The review petition was also dismissed by the District Court
Since there is no appeal lies on the review order, he will now have to file the REVISION petition
1 Kindly suggest whether Revision Petition is maintainable under section 115 cpc or under Article 227 of the constitution?
2 Which is more preferable in a Divorce case ? Article 227 or section 115 CPC?
Vijay Raj Mahajan
(Expert) 31 October 2017
Revision petition under section 115 CPC read with Article 227 of the Constitution of India.
Alternatively he should file fresh petition for divorce on new ground of cruelty after acquittal order in criminal complaint case. This will be better option because the High Court may not allow revision petition as at the time divorce sort on ground of cruelty about lodging false criminal complaint could not be proved because the criminal complaint case was still open and acquittal order not passed in favour of the husband. This technical issue will be taken in consideration even by the High Court.
The filling the acquittal order with Review Petition will not be of much help as this order came much after the final order of District Court dismissing the divorce petition.
Rajendra K Goyal
(Expert) 31 October 2017
Agree with the advice from expert Vijay Raj Mahajan.
Raman
(Querist) 31 October 2017
Sir, FAO ( First appeal ) has already been filed against the dismissal of the Divorce petition, Review order dismissal comes after the filing of the FAO
Ms.Usha Kapoor
(Expert) 01 November 2017
You shouod file civil revision case under Section115 coc r/w Article 227 of theconstitution in view of the following reasons.
2.2 CPC Amendment in section 115 does not affect HC revsional jurisdiction under Articles 226 & 227.
In Surya Dev Rai v. Ram Chandra Rai, the main question which arose for consideration was as to what was the impact of amendment in section 115 of the CPC brought about by the Act of 2002 on the power and jurisdiction of the HC to entertain petitions seeking a writ of certiorari under Article 226 or invoking the power of superintendents under Article 227 of the Constitution against which earlier remedy of filing civil revision under s.115 of the CPC was available to the person aggrieved. In brief the question was whether an aggrieved person is completely deprived of the remedy of judicial review if he has lost at the hands of the original court and the appellate court though case of gross failure of justice have been occasioned can be made out. The SC has held that the amendment in s.115 of the CPC in 2002 does not affect the jurisdiction of the HC under Article 226 & 227 of the Constitution. The power exists untrammeled by the Amendment in s.115 of the CPC and available to the exercised subject to rules of self discipline and practice which are well settled.
The Court also stated differences between jurisdiction under Article 226 to issue a writ of certiorari and supervisory jurisdiction under Article 227. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the HC but supervisory jurisdiction is akin to appellate revisional or corrective jurisdiction, Secondly, in a writ of certiorari the record of the proceedings certified by the inferior courts or Tribunal is sent to the HC and if it wishes to exercise its jurisdiction it will simply annul, or quash the proceedings and then do no more. But in exercise of supervisory jurisdiction the HC may not only quash the impugned proceedings, judgment or order but it may make such directions as the facts and circumstances of the case may warrant for guiding the inferior court or Tribunal to proceed further or afresh. In appropriate cases the HC may substitute its own decision. Thirdly, the jurisdiction under Article 226 can be exercised on a prayer made on behalf of the party aggrieved, but the supervisory jurisdiction can be exercised suo moto as well.
Conclusion
The amendment in S.115 of the CPC in 2002 does not affect the jurisdiction of the HC under Article 226 & 227 of the Constitution. The power exists untrammeled by the Amendment in s.115 of the CPC and available to the exercised subject to rules of self discipline and practice which are well settled. The application can be filed by the party, or the High Court can suo moto take up the case. Application for revision can be filed only in jurisdictional matters and not any other.
Raman
(Querist) 01 November 2017
Thanks for reply. Madam, I think article 227 is applicable, in interim orders, as per the amendment, unless the order had not in favor of the revisionist has been disposed by the lower court. So it's legally correct, when the atutory remedy is avilable in 115 cpc , to invoke the jursidiction of the 227 Artilce constitution of india
Ms.Usha Kapoor
(Expert) 01 November 2017
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