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Madhya Pradesh High Court · body

2010 DIGILAW 435 (MP)

Aakanshha Shrivastava v. Virendra Shrivastava

2010-04-15

INDRANI DATTA, S.K.GANGELE

body2010
Judgment Indrani Datta, J. ( 1. ) The petitioner has assailed the order dated 22/2/2010 passed by Principal Judge, Family Court, Gwalior in Case No. 285 of2009 by which, petitioners application for interim maintenance stood rejected on the ground that the petitioner is Engineer and capable to maintain herself, while respondent though Engineer, at present he is unemployed, sick and under treatment of doctor. ( 2. ) The facts in nut-shell giving rise to the petition are that petitioner wife filed an application under Section 125 CrPC for grant of maintenance against respondent. During the pendency of that petition, an application was filed on behalf of petitioner wife for grant of interim maintenance. Trial Court has held that the petitioner wife is not entitled to any interim maintenance as she is an engineer and capable to maintain herself while respondent is under treatment for epilepsy and is unemployed because, he has resigned from his service. On these grounds, application for interim maintenance is dismissed by learned trial Court giving rise to this petition. ( 3. ) Manifold submissions have been advanced by learned counsel for the petitioner that the provision of Section 125 CrPC are meant for benefit of wives and children and such benefit should be liberally extended to them. Petitioner has no means to maintain herself but learned trial Court without considering this fact and only on the basis of the fact that the petitioner wife is also an Engineer, dismissed the application which is not just and proper as husband is duty bound to maintain her wife. It is further contended that in order to avoid maintenance, respondent has taken false plea of epilepsy while he is physically fit. He is earning from his job as well as from agricultural land. In Income Tax Return, for assessment year 2008-09, respondent has shown his gross total income, as Rs. 2,28,578/-. It is further submitted that the trial Court has shifted the burden on the petitioner to show that the respondent has not resigned from his service while, it was duty of the respondent to prove the fact that he is unemployed and he is having no source of income. Hence, order of trial Court rejecting interim maintenance is illegal and deserves to be set-aside. ( 4. Hence, order of trial Court rejecting interim maintenance is illegal and deserves to be set-aside. ( 4. ) Learned counsel for the petitioner placed reliance upon certain authorities i.e. Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and others AIR 1999 SC 1975 and in the matter of MX. Thomas and others 2006 CriLJ 3843. These citations are distinguishable and not applicable in the present case. Other authorities upon which, reliance has been placed is Amresh Tiwari v. Lalita PrasadDubey, 2000 (II) MPWN 66=AER 2000 SC 1504 in which, the apex Court has held that interim orders, even though they may have been confirmed by the Higher Court, never bind and do not prevent passing of contrary order at the stage of final hearing. Further reliance has been placed in the case of Smt. Parmeshwari Devi v. The State and another AIR 1977 SC 403 the apex Court has held that the Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-S. (2) of S. 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. Relying on the above citations, it is contended by learned counsel for the petitioner that this order of interim maintenance is interlocutory hence, revision cannot be preferred against that order because, the Court is not bound by interlocutory order at the time of final decision of the suit. ( 5. ) Combating the claim of petitioner, learned counsel for the respondent raised a preliminary objection that the petitioners petition under Article 227 of the Constitution of India is not maintainable as the petitioner is having alternative remedy available. The order of interim maintenance is an intermediate or quasi final order, hence, revision is to be preferred against that order. It is further contended that learned trial Court has rightly taken into consideration the fact that both the parties are well qualified Engineers and able to maintain themselves. Respondent is unemployed and sick, therefore, the trial Court has rightly dismissed the application for grant of interim maintenance. It is further contended that learned trial Court has rightly taken into consideration the fact that both the parties are well qualified Engineers and able to maintain themselves. Respondent is unemployed and sick, therefore, the trial Court has rightly dismissed the application for grant of interim maintenance. It is further submitted that the respondent has filed an application for restitution of conjugal rights under section 9 of Hindu Marriage Act but the petitioner is refusing to live with him and has lodged a false FIR against respondent concerning Crime No. 273 of2009 under Sections 498A, 506 and 34 IPC. As she herself has left matrimonial home, she is not entitled for interim maintenance. Hence, the order of trial Court is legal, proper and requires no interference. Learned counsel for the respondent has relied upon the citation in the case of Amar Nath and others v. State of Haryana and others, AIR 1977 SC 2185 in which, it has been held by the apex Court that the term "interlocutory order" in section 397. (2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397. Thus, for instance,, orders summoning witnesses, adjourning cases, passing order for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2). Bur orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. Bur orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. Further reliance has been placed in case of Rajendra Kumar Sitaram Pande and others (1999) 3 SCC 134 in which it has been held by apex Court that discretion in the exercise of revisional jurisdiction should, be exercised within the four corners of section 397, whenever, there has been miscarraige of justice in whatever manner. Under sub-section (2) of section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the Code. In Amar Nath v. State of Haryana apex Court has held that the expression "interlocutory order" in section 397 (2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". Furthermore, in case of Sumer Chand alias SumerNath v. Sandhuran Rani and another 1987 CriLJ 1396 it has been held that under the Criminal PC. there is no provision for filing an application for granting interim maintenance during the pendency of main application under S. 125 of the Code. The application for interim maintenance is by itself separate matter and it has to be disposed of separately much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order. Therefore, revision against an order granting interim maintenance is maintainable. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order. Therefore, revision against an order granting interim maintenance is maintainable. Further reliance has been placed upon a citation in case of Khagesh Kumar Goel v. State of M.R and others 1997 (2) JLJ 276 in which, it is held by a Bench of this Court that order though not conclusive of main dispute may be conclusive as to subordinate when it deals what is not final order cannot always by treated as interlocutory order and or passed during pendency of the proceeding, may neither be final nor interlocutory. Such orders may be construed to be intermediate or quasi final orders. No bar of Section 397 (2) Cr.P.C. applies. It is further held that "interlocutory order" merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue". An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Thus, the summom bonum of the aforesaid authority, is that if an order does not put an end to the main dispute but conclusively decide the point raised in controversy, it can certainly not to be said to be an interlocutory order. In other words if the plea raised finally disposes of the matter and there does not remain anything to be decided further, if accepted the order disposing of the plea, cannot be said to be an interlocutory order. Further reliance has been placed in the case of Madhu Alias Sanjeev Kumar v. Smt. Lalita Bai 2000 (1) MPJR 148 in which, it has been held by Bench of this Court that interim maintenance is also an order of moment as it substantially affects the financial position of both the sides. It is accepted position that if the husband does not comply, his property can be attached or he can be sent in prison. So the view of the learned Additional Sessions Judge that it is an interlocutory order against which revision would not lie, is erroneous. It is accepted position that if the husband does not comply, his property can be attached or he can be sent in prison. So the view of the learned Additional Sessions Judge that it is an interlocutory order against which revision would not lie, is erroneous. Relying on the above citations, learned counsel for the respondent argued that the order of interim maintenance is not interlocutory order. It is to be construed as an intermediate order, hence, bar of section 397 (2) CrPC is not applicable. Hence, the petition of the petitioner is not maintainable as she has to prefer revision as per provisions of law. ( 6. ) We have heard learned counsel for parties and considered rival submissions. We are of the considered view that the order of interim maintenance cannot be treated as interlocutory order and hence, no bar of section 397 (2) CrPC is applicable. In the present case, petitioner wife is substantially affected by the order which has been put to challenge because, right to get maintenance or survive with dignity which is as good as fundamental right granted by the Constitution to the petitioner has been substantially affected and prejudiced. Any order which affects right of a person drastically or affects it substantially or prejudices it substantially, cannot be treated as an "interlocutory order". Order of interim maintenance which affects right of parties substantially, cannot be treated as interlocutory. In Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 the apex Court has held that ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as a converse of the term "final order". But an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so, it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397 (1). On such a strict interpretation only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. Further in case of V.C.Shukla v. State 1980 SCC (Cri) 695: (1980) 2 SCR 380 apex Court has held that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi- final and, therefore, the revisional jurisdiction under section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code. Further more, in case of Rajesh Shukla v. Smt. Meena and another, 2005 (2) JLJ 249 :2005 CriLJ 3 800 it has been held by Full Bench of this Court that while passing order of maintenance under Section 125 CrPC in exercise of powers of Family Court, revision of such orders under sub-section (4) of section 19 of the Act should be registered as criminal revision. Yet in another case in Nasreen Begum v. The State of Jharkhand and others, 2006 CriLJ 326 it is held that section 19 (4) of Family Courts Act makes special provision of revision with regard to the orders passed under Section 125 of Code. Therefore, against orders passed under Section 125 CrPC, revision would lie. Further in case of Md. GulzarMian alias Gulzar Mian v. Zohra Khatoon 2009 CriLJ (NOC) 365 (Jharkhand): 2009 (I) AIR Jharkhand R. 267, it is held that order passed by Family Court under Section 125 CrPC is revisable by High Court under Section 19 (4) of Act and appeal against such order is not maintainable. ( 7. Further in case of Md. GulzarMian alias Gulzar Mian v. Zohra Khatoon 2009 CriLJ (NOC) 365 (Jharkhand): 2009 (I) AIR Jharkhand R. 267, it is held that order passed by Family Court under Section 125 CrPC is revisable by High Court under Section 19 (4) of Act and appeal against such order is not maintainable. ( 7. ) Considering the above legal position, we are of the considered view that the order of interim maintenance affects right of a person drastically and substantially. Hence, it cannot be treated as "interlocutory order" and criminal revision can be preferred under Section 19 (4) of the Family Courts Act. We, therefore, grant liberty to the petitioner to convert the present writ petition into criminal revision. Learned counsel for the petitioner is given liberty to take such steps as may be necessary to convert the same. Office is directed to take steps pursuant thereto and list it before the Bench according to Roster.