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2001 DIGILAW 304 (ALL)

RAVI SARAN PRASAD v. RASHMI SINGH

2001-03-30

B.K.ROY, U.S.TRIPATHI

body2001
( 1 ) IN this Appeal under Section 19 (1) of the Family Courts Act, 1984 the husband assails validity of an order dated 5/03/2001 passed by Sri R. B. Pandey, Judge, Family Court, Agra in Suit No. 446 of 1998 allowing the application dated 3/05/1999 filed by the respondent-wife under Sections 24/26 of the Hindu Marriage Act, 1955 commanding the appellant to pay a sum of Rs. 1200. 00 (Rs. 800/- per month for her and Rs. 400. 00 per month for their son) for maintenance with effect from the date of her application, besides a lump sum of Rs. 1500. 00 towards litigation expenses. ( 2 ) THE office has raised an objection that in view of Section 19 (5) of the Family Courts Act this appeal is not maintainable. ( 3 ) SRI Anupam Kulshrestha, learned counsel for the appellant, contests the objection aforementioned by submitting that true it is that the impugned order was passed under Section 24 of the Hindu Marriage Act but in view of the Division Bench decision of the Madhya Pradesh High Court in Raghvendra Singh Choudhary v. Smt. Seema Bai, AIR 1989 Madhya Pradesh 259 holding that an appeal will lie against an interlouctory order, if it is a judgment and that the order passed under Section 24 of the Hindu Marriage Act is a judgment as it decides the question of maintenance during the pendency of the suit, therefore, there is a final adjudication. 8 ( 4 ) HAVING regard to the provisions as contained in Sections 28 of the Hindu Marriage Act, 1955 and S. 19 (1) and (5) of the Family Courts Act, 1984 and the object of this Act as stated in the Bill that only one appeal shall lie and that too before the High Court we respectfully differ from the ratio laid down by the Madhya Pradesh High Court which in its turn has placed reliance on a Bombay High Court Judgment in Dinesh Gijubhai Mehta v. Smt. Usha Dinesh Mehta, AIR 1979 Bombay 173 and the Honble Supreme Courts decision in Shah Babulal Khimji v. Janyaben D. Kania, AIR 1981 SC 1786 , the last one is clearly distinguishable. ( 5 ) SECTION 24 of the Hindu Marriage Act, under which the order in question has been passed, reads thus :-"24. ( 5 ) SECTION 24 of the Hindu Marriage Act, under which the order in question has been passed, reads thus :-"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 petitioners own income and the income of the respondent, it may seem to the Court to be reasonable. " ( 6 ) IT is well settled that appeal and/or revision is a creature of statute. Section 28 of the Act aforementioned reads thus :-"28. Appeals from decrees and orders.- (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall like to the Court to which appeals ordinarily he from the decisions of the Court given in the exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order. "apparently the Legislature has excluded preference of an appeal under the Act aforementioned against an order passed under Section 24 of the Act. ( 7 ) THE Bill for enactment of the Family Courts Act, inter alia, stated providing of only one right of appeal which shall lie to the High Court and the Parliament enacted the Family Courts Act in 1984, Section 19 of which Act reads thus :-"19. ( 7 ) THE Bill for enactment of the Family Courts Act, inter alia, stated providing of only one right of appeal which shall lie to the High Court and the Parliament enacted the Family Courts Act in 1984, Section 19 of which Act reads thus :-"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 of Criminal Procedure, 1973 (2 of 1974), 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. (2) No appeal shall lie from a decrees 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 sub-section shall apply to any appeal pending before a High Court or any order passd 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 judgment or order of a Family Court. (4) The High Court may, of its own motion or otherwise, call for and 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 sub-section (1) shall be heard by a Bench consisting of two or more Judges. "a conjoint reading of sub-section (1) and9 sub-section (5) makes us crystal clear that only one appeal lies to the High Court; that no appeal or revision lies except as provided under sub-section (1) from any judgment, order or decree of a Family Court; and further that no appeal lies against such judgment or order which is interlocutory. "a conjoint reading of sub-section (1) and9 sub-section (5) makes us crystal clear that only one appeal lies to the High Court; that no appeal or revision lies except as provided under sub-section (1) from any judgment, order or decree of a Family Court; and further that no appeal lies against such judgment or order which is interlocutory. It cannot be said that the Legislature has created an appellate form in 1984 against the orders passed under Section 24 of the Hindu Marriage Act nullifying Section 28 of that Act contrary to the object of enactment of the Act as stated in the Bill. ( 8 ) THUS, we uphold the objection of the Stamp Reporter that this appeal is not maintainable under Section 19 (1) of the Family Courts Act, 1984 and dismiss it as not maintainable. ( 9 ) IT is needless to clarify that it will be open for a litigant like the appellant to knock the doors of this Court under Article 226 and/or Article 227 of the Constitution of India provided a suitable case for interference is made out against an order passed under Section 24 of the Hindu Marriage Act. Appeal dismissed. .