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1990 DIGILAW 34 (ALL)

Avdhesh Narain Srivastava v. Archana Srivastava

1990-01-08

S.H.A.RAZA, VIRENDRA KUMAR

body1990
JUDGMENT Virendra Kumar, J. - This first appeal has been filed against the order dated 23.8.89 passed by the Principal Judge, Family Court, Lucknow granting pendente lite maintenance at the rate of Rs. 200/per month, Rs. 500/ as expenses for the litigation and to pay Rs. 100/ on every date when the respondent appears in court. 2. The appellant has filed a petition under section 9 of Hindu Marriage Act, 1955, for short the Act, for restitution of conjugal rights against his wife Smt. Archana Srivastava the respondent. The respondent filed written statement. She applied for grant of pendente lite maintenance and expenses to meet the expenses for the case on the ground that she has no source of income while the appellant's income was Rs. 2700/ per month, the Family Court passed the order for grant of pendente lite maintenance allowance at the rate of Rs. 200/ per month, litigation expenses to the tune of Rs. 500/ and also the payment of Rs. 100/ for each date on which she appears in Court. 3. After the filing of this appeal, notice was issued to the respondent to show cause why the appeal be not admitted. 4. The learned counsel for the respondent raised preliminary objection about the maintainability of the appeal on the ground that the impugned order passed under section 24 of the Act is an interlocutory order and no appeal against the interlocutory order can be filed in view of section 19 of the Family Courts Act, 1984. 5. Main question is, whether the impugned order passed under section 24 of the Act is an interlocutory order. Section 24 of the Act, which is reproduced below, provides for grant of maintenance pendente lite and expenses of proceedings, in the proceedings pending under the Act. 24. Maintenance pendente lite and expenses of proceedings: Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no Independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. 6. No doubt, that the impugned order has been passed by the Family Court in the proceedings for restitution of conjugal rights which are pending before it and are yet to be finally disposed of by that court but that in itself does not mean that the impugned order or any order passed during the pendency of the proceedings will be an order of interim nature or an interlocutory order. Further, Section 24 under which the impugned order has been passed, does not provide that the order passed under this Section will be an interlocutory order or an interim order. All that the Section goes to signify, is that the order is to be for maintenance and litigation expenses during the period of pendency of the proceedings before the Family Court, But the maintenance and litigation expenses, though for the interim period, stand finally determined by the Family Court on the application filed by the respondent under Section 24 of the Act. The Family Court did not indicate that it was passing the impugned order as an interlocutory order for being confirmed or recalled under a subsequent order in the same proceedings. The order has been passed finally by the Family Court on the question of grant of pendente lite maintenance and litigation expenses. Such an order cannot be considered as an interlocutory order. Same view was taken by Rajasthan High Court in the case of Sanjeev Kumar Pareek versus Shubh Laxmi Pareek, 1 (1989) Divorce & Matrimonial Cases 450. 7. There is no dispute on the point that Section 19 of the Family Courts Act makes a provision for appeal against every judgment or order, not being an interlocutory order, of a Family Court to the High Court, both on law and on facts. Moreover, this is absolutely clear from Section 19 of the Family Courts Act. 8. The impugned order having been held to be not an interlocutory order, is appealable under Section 19 of the Family Courts Act. Hence the preliminary objection as to the maintainability of the appeal is not sustainable.