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2010 DIGILAW 696 (KAR)

J. P. Manjunath v. H. R. Susheela

2010-06-08

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
Judgment D.V. Shylendra Kumar, J. The appeal preferred quoting Section 24 of the Hindu Marriage Act, 1955 (for short ‘the Act’) by the petitioner in M.C.No.872/2008 on the file of the Court of Principal Family Judge, Bangalore, aggrieved by the order dated 16-1-2010 passed by the learned Judge of the Family Court, on an application filed by the respondent-wife therein seeing for pendente lite maintenance in her favour. 2. The learned Judge of the Family Court has awarded a sum of Rs.3,000/- per month as the maintenance payable in favour of the respondent – wife with effect from 1-8-2009 together with one time litigation expenses of Rs.5,000/-. The husband – petitioner is in appeal purporting to be under Section 24 of the Act as mentioned above. 3. The matter is listed before the Court today by the Registry on the memo filed by learned counsel for the appellant for conversion. While the said memo is conspicuously absent before us, on a query with the Registry. What we are informed is that the memo to that effect had in fact been filed, was available in the Registry when a case filed was scrutinized by the concerned section; it appears to have misplaced by the Board Branch of the Registry before the papers are sent to the Court hall. Be that as it may, we have looked into the tenability of this appeal stated to be filed under Section 24 of the Act. We find that Section 24 of the Act is not a provision enabling filing of any appeal. Section 24 of the Act reads as under: “24. Maintenance pendente lite and expenses of proceedings, ----- Where in any proceedings 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”. 4. A statutory right is to be availed of in the manner as provided under the statute. 4. A statutory right is to be availed of in the manner as provided under the statute. Section 24 of the Act is not a provision enabling filing of any appeal. On the other hand, we find quoting of Section 24 is inappropriate and as the order is passed on an interlocutory application in a pending matter by the learned Judge of the Family Court, the procedure is governed by the Family Courts Act, 1984. In terms of the provisions of the Family Courts Act, 1984 in respect of orders passed by the Family Court and particularly the Family Court has been conferred with exclusive jurisdiction to try the matters relating to matrimonial disputes between the parties in a place where the Family Court is established. The appeal provision against the orders of the Judge of the Family Court is wholly in terms of Section 19 of the Family Courts Act, 1984. For convenience, we may refer to Section 19 of the Family Courts Act, 1984 which is as under: “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 before the Commencement of the Family Courts (Amendment) Act, 1992. (3) Every appeal under the section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court. (3) Every appeal under the section shall be preferred within a period of thirty days from the date of 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 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”. 5. The language of sub-section (1) of Section 19 is quite clear and emphatic in saying that the appeal shall not lie in respect of interlocutory order of the Family Court. We should apply this test. An appeal under Section 19 of the Family Court Act is not maintainable as against the impugned order which is questioned in this appeal. 6. In either view of the matter, the present appeal is not tenable whether under Section 24 of the Hindu Marriage Act, 1955 or under Section 19 of the Family Courts Act, 1984. 7. Unfortunately, the learned counsel who has held memorandum of appeal is blissfully absent from the Court but that does not exonerate our responsibilities and duties as Judges of this Court. After having examined legal position, we find that office objection regarding maintainability is a tenable one and we uphold this objection and hold that appeal is not tenable in law, accordingly the appeal is rejected.