Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 2644 (PAT)

Neelam Kumari Sinha v. Prashant Kumar

2010-12-19

DIPAK MISRA, JYOTI SARAN, MIHIR KUMAR JHA

body2010
JUDGEMENT Dipak Misra, J. 1. Questioning the pregnability of the order dated, 19th December, 2009 passed by the learned Principal Judge, Family Court, Siwan in Divorce Case No. 15/05, whereby the said Court had allowed an ad interim maintenance of Rs. 4,500 per month and litigation cost of Rs. 10,000 in favour of the Petitioner-wife in exercise of powers under Section 24 of the Hindu Marriage Act, 1955 (for brevity "the 1955 Act") and under Section 19(5) of the Family Courts Act, 1984 (for short "the 1984 Act"), the Petitioner-wife has preferred the present civil revision invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, Before the learned Single Judge, the question of maintainability of the revision was raised on the basis of an order passed on 23rd February, 2010 in Misc. Appeal No. 654 of 2009 (Anand Kumar Thakur v. Madhuri Kumari) wherein it has been held that a miscellaneous appeal would be the proper remedy under Section 19(1) of the 1984 Act. 2. The learned Single Judge, after referring to certain provisions of the Act and the decisions in the field, expressed a doubt with regard to the order passed in Misc. Appeal No. 654 of 2009 and referred the following questions and felt that the controversy should be put to rest by a larger Bench. The learned Single Judge recommended the following issue for adjudication by a larger Bench: 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? That is how the matter has been placed before us. 3. An order passed under Section 24 of the 1955 Act was appealable under Section 28 of the 1955 Act. After the amendment in the year 1976, Section 28 of the 1955 Act had undergone a sea change. The unamended Section 28 of the 1955 Act reads as follows: 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. 4. 4. On a reading of the aforesaid provision, there can be no shadow of doubt that an appeal did lie from an order passed under the Act. The Parliament by Act No. 68 of 1976 substituted Section 28. The substituted provision contained in Section 28 reads as follows: 28. (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. 5. On a studied scrutiny of the amended provision, it is clear as noon day that the right of appeal against interim order passed under Sections 24, 25 and 26 of Act has been expressly taken away. It has also been clearly provided that the orders passed under Section 25 or Section 26 shall be subject to the provision of Sub-section (3) and are appellable if they are not interim orders. Section 25 of the 1955 Act deals with grant of permanent alimony. The aforesaid provisions came to be interpreted in Captain Ramesh Chancier Kaushal v. Mrs. Veena Kaushal and Ors. (1978) 4 SCC 70 : AIR 1978 SC 1807 , wherein their Lordships have held thus: 6. Broadly stated and as art 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. Broadly stated and as art 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 Section 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. 6. From the aforesaid pronouncement, it is clear as crystal that an order passed under Section 24 of the 1955 Act is an interim order and is incidental to the comprehensive adjudication. 7. The Parliament considering the public interest and the need of the hour thought it apposite to establish Family Courts and conferred with jurisdiction to deal with the disputes with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section 7 of 1984 Act deals with the jurisdiction of a Family Court. Section 8 deals with the exclusion of jurisdiction and pending proceedings. Section 17 prescribes that a judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision Section 19 provides for appeals and revisions. The said provision, being relevant for the present proceeding, is reproduced hereinbelow: 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 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. 8. Section 20 stipulates that the Act would have overriding effect. In Anand Kumar Thakur (supra), the Division Bench has observed thus: 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 under Section 24 of the Hindu Marriage Act is an interlocutory order and, therefore, no appeal shall lie under Section 19(1) of the Family Courts Act, 1984. Learned Counsel for the Appellant submits that the issue of interim maintenance under Section 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 under Section 24 of the Hindu Marriage Act awarding or refusing interim maintenance is maintainable under Section 19 of the Family Courts Act. 9. We are in agreement with the aforesaid submission advanced on behalf of the Appellant. Accordingly, we hold that appeal against an order under Section 24 of the Hindu Marriage Act awarding or refusing interim maintenance is maintainable under Section 19 of the Family Courts Act. 9. The centripodal issue that emerges for consideration is whether an order passed under Section 24 of the 1955 Act would be an interlocutory order so that it will not be covered within the meaning of Section 19(1) of the 1984 Act. In this context, we may refer with profit to a full bench decision of Orissa High Court in Swarna Prava Tripathy and Anr. v. Dibyasingha Tripathy and Ann2 AIR 1998 Orissa 173 (DB). In the said case, the full bench speaking through Pasayat, J. (as his Lordship then was) after noticing the decisions rendered in Dilip Chhaganlal Patel v. State of Maharashtra3 AIR 1983 Bom 128 ; Laxmibai v. Ayodhya Prasad AIR 1991 MP 47 ; Kumud Wadhwa v. M.K. Wadhwa (1994) 1 DMC 543 ; Narendra Kumar Mehta v. Smt. Suraj Mehta5 AIR 1982 Andh Pra 100; Rakesh Chandok v. Vinodi AIR 1982 J&K 95 ; Rajpal v. Smt. Dharmavati AIR 1980 All 350 ; Jang Bahadur Syal v. Smt, Mukta Syal AIR 1986 Delhi 422 and Smt. Satish Bindra v. Surjit Singh Bindra AIR 1977 Punj and Har 383, adverted to the issues what can be called "interlocutory orders" and "final orders" and in that context, has held thus: 6. At this juncture it is necessary to pigeonhole which can be called interlocutory orders and final orders. Interlocutory orders are of various kinds some like orders of stay, injunction, or receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based, though if application were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. An order may be final for one purpose and interlocutory for another. The expression "interlocutory order" as used in restricted sense and not in any broad or artistic sense, denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. In Webster"s Third International Dictionary, the expression "interlocutory" has been defined as, "not final or definite, made or done during the progress of an action intermediate, provisional". The emphasis is, therefore, at the stage when the order is passed. Interlocutory stage is decidedly the stage between the cognizance taken by the Court and the judgment pronounced. The interlocutory order is supplemental proceeding which is a means to an end and not an end itself. The word "interlocutory" means according to the import of the dictionary "intermediate" and the interlocutory order is one passed during the progress of the proceeding that is to say, interlocutory order must be an order passed after the initiation of the proceedings and before the final order disposing of the matter. In New Webster"s Dictionary, College Edition, the meaning given is "of the nature of, pertaining to, or occurring in, conversation or dialogue spoken intermediately, as interlocutory conversation interjected into the main speech. Law, pronounced during the course of an action, as a decision or order, not finally decisive of a case, pertaining to a provisional decision." Interlocutory orders are steps taken towards the final adjudication for assisting the parties in the prosecution of their case in the pending proceedings. See Central Bank of India v. Gokul Chand AIR 1967 SC 799 . Interlocutory inter alia means not that which decides the case, but that which only settles some intervening matter relating to the cause. See Central Bank of India v. Gokul Chand AIR 1967 SC 799 . Interlocutory inter alia means not that which decides the case, but that which only settles some intervening matter relating to the cause. As interlocutory order is one which is made pending the cause and before a final hearing on the merits. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, and generally collateral to the issues formed by the pleadings and not connected with the final judgment. Thereafter, their Lordships referred to a decision in Ramesh Chander Kaushal (supra) and eventually expressed the view as follows: 8. In view of the law as laid by the Apex Court, the inevitable conclusion is that an order passed under Section 24 or 26 of Marriage Act is an interlocutory order and as such, no appeal would lie in terms of Section 19(1) of the Act. The question is whether revision would lie. In view of what has been stated in Sub-section (5), revision would not lie. After so holding, the question arose as to what can be the remedy available to the affected person if the order is treated as interlocutory. Their Lordships placed reliance on Mahadeo Savlaram Shelke v. Pune Municipal Corporation10 (1995) 3 SCC 33 : (1995 AIR SCW 1439 at p. 1441)and came to hold that a writ petition under Article 227 of the Constitution of India would lie against such an order. 10. In Ravi Saran Prasad alias Kishore v. Smt. Rashmi Singh AIR 2001 All 227 , a Division Bench of the Allahabad High Court has expressed the view as under: A conjoint reading of Sub-section (1) and 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. 11. 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. 11. In this context, we may note with profit a decision by learned Single Judge in Smt. Usha Kumari v. The Principal Judge, Family Court, Patna and Ors. 1997-11 BLJ 474: AIR 1998 Pat 50 ) wherein the learned Single Judge, after referring to the relevant provisions, has held that no appeal from an interlocutory stage is permissible. In that context, after so holding, the learned Single Judge has expressed thus: 12. Now the question is whether powers given to this Court under Article 227 of the Constitution can be utilised to achieve a purpose which has been expressly negatived by a competent piece of legislation. The answer is obviously an emphatic "No". It is well known that the powers under Article 227 of the Constitution are powers of superintendence over the Subordinate Courts and the main purpose for exercising such power is to keep the Subordinate Court within the bounds of their Authority. It is settled beyond controversy that under Article 227, the High Court cannot interfere with an order which has been passed by a Subordinate Court simply because of the fact that on the said facts the High Court entertains a different view of the matter. However, the obiter observation of the Supreme Court which has been quoted in Raj Kumar"s case (supra) merely reiterates that High Courts" power under Article 227 are obviously there but said power cannot be exercised as a handy substitute for the statutory powers. This Court is absolutely convinced that this is not a fit case where there is any grave injustice and High Court should interfere under Article 227 of the Constitution of India on merits of the order even if the High Court feels that a different order could have been passed. 12. The aforesaid order has to be read in proper perspective to mean that it only relates to the exercise of power under Article 227 of the Constitution of India and it should not be construed that the writ petition is not maintainable. 13. The learned Counsel for the Petitioner submitted that when no appeal would lie, a revision can be entertained. 13. The learned Counsel for the Petitioner submitted that when no appeal would lie, a revision can be entertained. 14. A full bench of this Court in Durga Devi v. Vijay Kumar Poddar and Ors. connected matters decided on 27th April, 2010: AIR 2010 Pat 126 has held that when an order is interlocutory in nature, no civil revision would lie as the acid test has to be that it could have finally disposed of the suit or other proceeding. In the said decision, it has been held that a writ petition under Article 227 of the Constitution of India would be maintainable. It has been further held therein that the civil revision which is pending can be converted into a writ petition on fulfillment of the other conditions. 15. In view of the aforesaid analysis, it is held that an order passed by the learned Principal Judge, Family Court under Section 24 of the 1955 Act would be amenable to writ jurisdiction under Article 227 of the Constitution/of India. Thus, the conclusion recorded in M. A. No. 654 of 2009 does not lay down the law correctly and is hereby overruled. 16. It is obligatory to clarify here that if a civil revision has been filed, the same can be converted into a writ petition on fulfillment of other requisite conditions. 17. The reference is answered accordingly. The matter be placed before the learned Single Judge for delineation in accordance with law.