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2010 DIGILAW 1011 (PAT)

Neelam Kumari Sinha v. Shree Prashant Kumar

2010-04-28

RAVI RANJAN

body2010
JUDGEMENT 1. This Civil Revision is directed against the order dated 19.12.2009 passed in Divorce Case No. 15 of 2005, whereby the court below had allowed ad interim maintenance of Rs. 4500/- per month in favour of the petitioner under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"). Litigation cost of Rs. 10,000/- had also been allowed, however, the petitioner (wife) is dissatisfied with the quantum of maintenance fixed as aforesaid. 2. The office has raised an objection that in view of Section 19(5) of the Family Courts Act, 1984, this Civil Revision is not maintainable, however, it has also pointed that in view of the order dated 23.2.2010, passed in Misc. Appeal No. 654 of 2009, a Misc. Appeal would be the proper remedy under Section 19(1) of the Family Courts Act, 1984 . 3. I have heard learned counsel for the petitioner on the point of maintainability of this Civil Revision. 4. Learned counsel for the petitioner at the first instance made an endeavour to impress upon the Court that this Civil Revision would be maintainable. However, in view of the decision of this Court dated 25.1.2010 rendered in Civil Revision No. 1229 of 2009, placing reliance upon a decision of the Division Bench rendered in Jagdish Prasad Chouhan V/s. Bhuneshwar Chouhan and Another, 2009 (3) PLJR 931 , learned counsel submitted that he does not want to contest the Stamp Report but it was urged that as per the report of Office, liberty should be granted to the petitioner to convert this Civil Revision into a Misc. Appeal in view of the order dated 23.2.2010 passed in Misc. Appeal No. 654 of 2009 (Anand Kumar Thakur V/s. Madhuri Kumari). Aforesaid appeal was placed before a Division Bench alongwith following Stamp Report: "xxxxxxxx. The present impugned order relates to prayer for grant of interim maintenance and litigation cost and, thus, it does not appear to be appealable u/s 19(1) of the Family Court Act. However, the present report as M.A. is being made in view of the order of Honble Court dated 14.5.09 passed in C.R. No. 636/09 (Annexure-4) that the matter in question should be treated as a separate proceeding, and that petition has now been disposed of. xxxxxxxx." 5. However, the present report as M.A. is being made in view of the order of Honble Court dated 14.5.09 passed in C.R. No. 636/09 (Annexure-4) that the matter in question should be treated as a separate proceeding, and that petition has now been disposed of. xxxxxxxx." 5. However, the Division Bench overruling the Stamp Report, has held as under: "Heard learned counsel for the appellant in respect of office objection regarding maintainability of this appeal on the ground that the order awarding interim maintenance u/s 24 of the Hindu Marriage Act is an interlocutory order and, therefore, no appeal shall lie u/s 19(1) of the Family Courts Act, 1984 . Learned counsel for the appellant submits that the issue of interim maintenance u/s 24 of the Hindu Marriage Act cannot be treated as interlocutory because an order deciding such an issue affects the rights and liabilities of the parties to the suit. We are in agreement with the aforesaid submission advanced on behalf of the appellant. Accordingly, we hold that appeal against an order u/s 24 of the Hindu Marriage Act awarding or refusing interim maintenance is maintainable u/s 19 of the Family Courts Act." 6. Now the core issue to be decided herein would be: (i) Whether an order passed under Section 24 of the Hindu Marriage Act,1955, is an interlocutory order or a final order deciding rights of the parties finally? (ii) Whether the validity, legality or propriety of the order passed under Section 24 of the Hindu Marriage Act, 1955 , could be challenged by preferring an appeal under Section 19(1) of the Family Courts Act, 1984 ? 7. It would be apt to note here that previously appeal was available against an order passed under Section 24 of the Act, which was provided under Section 28 of the same Act; However, after amendment in the year 1976, the provision of appeal under Section 28 of the Act underwent substantial changes. For proper appreciation the original as well as amended provisions are quoted as under: Unamended Section 28 of the Act reads as under: 28. For proper appreciation the original as well as amended provisions are quoted as under: Unamended Section 28 of the Act reads as under: 28. "All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in exercise of the original civil jurisdiction are enforced and may be appealed from under any law for the time being in force; Provided that there shall be no appeal on the subject of costs only." 8. From a bare perusal of the aforesaid provision, it would appear that appeal was maintainable from all decrees and orders passed under the Act except against the order of costs, however, the aforesaid provision resulted into flooding of appeals in the appellate court as almost every order was being challenged. Thus, the Parliament in its wisdom, by Act No. 68 of 1976, which came into force on 27th of May, 1976, sub-stituted Section 28 with substantial changes. The amended Section, now thereafter, reads as under: "S.28. Appeals from decrees and orders. (1) All decrees made by the Court in any proceeding under this Act, shall be subject to the provisions of sub-section (3), be appealable as decrees of the Court made in exercise of its original civil jurisdiction 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. (2) Order 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." 9. From the aforesaid provision, it would be manifest that the right of appeal against interim orders passed under Sections 24, 25 and 26 of the Act, provided under unamended Act, has been expressly taken away by the amended provisions of sub Section (2) of Section 28. From the aforesaid provision, it would be manifest that the right of appeal against interim orders passed under Sections 24, 25 and 26 of the Act, provided under unamended Act, has been expressly taken away by the amended provisions of sub Section (2) of Section 28. Under Section 28(2) of the amended Act, it had been made clear that even an appeal against the order passed under Section 25(granting permanent alimony) or Section 26 would be available only when they are not interim orders. Thus, the intention of Legislature was clear, not to provide any appeal from any interim order under the Act. It would be apt to refer the views expressed in this regard in Mulla Principles of Hindu Law (Twentieth Edition) Volume-ll, Page 248, which is quoted as under: "APPEAL: SECTION 28 There was difference of opinion among the High Courts on the question whether an appeal lies against an order of the court of first instance on an application for maintenance pendente lite and expenses of proceedings started under the Act. The difference of opinion arose from different interpretations given to the language of S. 28. Section 28 has now been amended and it is abundantly clear that no appeal can lie against any such order. Any such order passed after the coming into force of the Amending Act of 1976, would also not be appealable, such orders being interlocutory in nature." 10. In Captain Ramesh Chander Kaushal V/s. Mrs. Veena Kaushal and others (AIR 1978 Supreme Court 1807), the Apex Court had examined the controversy, wherein the Civil Court in exercise of its power under Section 24 of the Act had allowed by interim measure maintenance of Rs. 400/- per month, however, the Magistrate in a Maintenance Case filed under Section 125 Cr.P.C, after appreciating the evidence on record, had ordered ex parte maintenance of Rs. 1000/-. The question arose as to whether the decision of the Civil Court would prevail or the decision of the Criminal Court under Section 125 Cr.P.C. granting monthly maintenance of Rs. 1000/- would prevail. The Apex Court held that the order of Magistrate granting Rs. 1000/- per month cannot be faulted with. One of the reasons expressed by the Apex Court was that direction of Civil Court granting Rs. 1000/- would prevail. The Apex Court held that the order of Magistrate granting Rs. 1000/- per month cannot be faulted with. One of the reasons expressed by the Apex Court was that direction of Civil Court granting Rs. 400/- per mensem was an interim measure, not a final determination of the issue since it was an order for grant of pendente lite maintenance under Section 24 of the Act. The final decision with regard to the rights of the party regarding alimony is determined under Section 25 of the Act. The incidental direction is no comprehensive adjudication. The relevant passage of the aforesaid decision of the Apex Court is reproduced as under: "6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under S.24 of the Hindu Marriage Act to pay 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. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication." 11. Subsequently, the Family Courts Act, 1984 , came into existence. The question would be, as to whether an appeal would lie under Section 19(1) of the Family Courts Act, 1984 , against any order passed under Section 24 of the Act by the Family Court. For proper appreciation of the issue, it would be apt to refer the relevant provision of Section 19 of the Family Courts Act, 1984 , which reads as follows: "19. Appeal. For proper appreciation of the issue, it would be apt to refer the relevant provision of Section 19 of the Family Courts Act, 1984 , which reads as follows: "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 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 sub-section 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 judgment 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 FamilyCourt. [(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges." 12. It is quite clear from the aforesaid provision that Section 19(1) of the Family Courts Act has a wider ambit so as to cover all types of judgments and orders. However, no appeal has been provided against an interlocutory order. A Full Bench decision of this Court rendered in Sunita Kumari V/s. Prem Kumar (FB), 2009 (3) PLJR 990 , though deciding a different issue, had opined as follows: "15.xxxxxxx. However, no appeal has been provided against an interlocutory order. A Full Bench decision of this Court rendered in Sunita Kumari V/s. Prem Kumar (FB), 2009 (3) PLJR 990 , though deciding a different issue, had opined as follows: "15.xxxxxxx. The provisions under Section 19 of the Act have a wider ambit so as to cover all kinds of judgments and orders made appealable by the express provisions of that section and not only decrees as defined under Code of Civil Procedure. xxxxxxxxxxx." 13. Now, the test would be as to whether an order passed under Section 24 of the Act is an interlocutory order or a final order. Since, there is express bar of an appeal under Section 19(1) of the Family Courts Act, against an interlocutory order, to hold that appeal would be available against such orders, it would have necessarily to be held that the order passed under Section 24 of the Act is a final order deciding the rights of the parties. 14. A Full Bench of the Orissa High Court in Swarna Prava Tripathy and another V/s. Dibyasingha Tripathy and another (AIR 1998 Orissa 173) after placing reliance upon the aforesaid decision of the Apex Court in Captain Ramesh Chander Kaushal (Supra) had held that an order passed under Section 24 of the Act is an interlocutory order and as such no appeal would lie in terms of Section 19(1) of the Family Courts Act. 15. Similar view has been taken by a Division Bench of the Allahabad High Court in Ravi Saran Prasad alias Kishore V/s. Smt. Rashmi Singh (AIR 2001 Allahabad 227), wherein it has been held that appeal would not be maintainable under Section 19(1) of the Family Courts Act, 1984 against any order passed under Section 24 of the Act. 16. A Division Bench of the Bombay High Court in Sunil Hansraj Gupta V/s. Payal Sunil Gupta (AIR 1991 Bombay 423) has also held that order passed under Section 24 of the Act being an interlocutory order, no appeal would be available under Section 19(1) of the Family Courts Act. 17. 16. A Division Bench of the Bombay High Court in Sunil Hansraj Gupta V/s. Payal Sunil Gupta (AIR 1991 Bombay 423) has also held that order passed under Section 24 of the Act being an interlocutory order, no appeal would be available under Section 19(1) of the Family Courts Act. 17. Upon perusal of the provision of the Family Courts Act, 1984 and the dominant purpose behind the enactment and its object and reasons, one will have to come to the conclusion that the clear intention of the Legislature is to provide a forum for speedy settlement of the disputes which are covered under the Act. The appellate provisions under Section 19 of the Act have been made a restricted one to effectuate the above object of the speedy disposal of family disputes. It is a one tier appeal to the High Court and except the provisions under Section 19(1), the appeal or revision has expressly been barred under Section 19(5) of the aforesaid Act. The provisions of sub section (5) of Section 19 are by way of ex abundanti cautela. It is a well known legislative device to make the legislative intention manifest and patent. That apart, it cannot be said that the Legislature has created an appellate forum by enactment in 1984 against the orders passed under Section 24 of the Act nullifying Section 28 of the Hindu Marriage Act contrary to the object of enactment of the Family Courts Act. 18. However, it appears that none of the aforesaid provisions or the decisions discussed above were brought to the notice of the Division Bench either by the Stamp Reporter or by the appellant at the time of hearing of Misc. Appeal No. 654 of 2009. Sub-sequently, the same had been dismissed as not pressed. 19. Thus, in view of the decision of the Apex Court in Captain Ramesh Chander Kaushal (supra) as well as the other decisions of several High Courts as above, I am of the opinion that this issue requires reconsideration by an appropriate Bench. Thus, I deem it proper to refer this Civil Revision for its adjudication by an appropriate Bench on the following issue: "Whether an appeal would be available under Section 19(1) of the Family Courts Act, 1984 , against an order passed under Section 24 of the Hindu Marriage Act, 1955 ?" 20. Thus, I deem it proper to refer this Civil Revision for its adjudication by an appropriate Bench on the following issue: "Whether an appeal would be available under Section 19(1) of the Family Courts Act, 1984 , against an order passed under Section 24 of the Hindu Marriage Act, 1955 ?" 20. The Office is directed to place the records of this case before the Honble the Chief Justice.