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2023 DIGILAW 919 (ALL)

Sushil Kumar v. Principal Judge Family Court Lko.

2023-04-05

MANISH MATHUR

body2023
JUDGMENT Manish Mathur, J. Heard learned counsel for the petitioner and learned counsel appearing on behalf of opposite party no.2. In view of the order being passed, notices to opposite party no.1, being merely proforma in nature, stand dispensed with. 2. Petition under Article 227 of the Constitution of India has been filed challenging the order dated 13th October, 2022 passed in Regular Suit No.1896 of 2021 instituted by the petitioner under Section 13-A of the Hindu Marriage Act, 1955. By means of aforesaid order, the earlier order dated 06th September, 2022 under section 24 of the Hindu Marriage Act, 1955 granting pendente lite maintenance to the answering opposite party has been sought to be executed. 3. Learned counsel appearing on behalf of the answering opposite party at the very outset has raised preliminary objection regarding maintainability of present petition under Article 227 of the Constitution of India with the submission that the order impugned being not interlocutory in nature, an appeal under section 19 of the Family Courts Act, 1984 only is maintainable. It is submitted that the petitioner had earlier also preferred First Appeal No.135 of 2022 which, vide order dated 21st December, 2022, was dismissed as withdrawn with liberty to file fresh appeal. It is further submitted that by means of order dated 06th September, 2022 passed under section 24 of the Hindu Marriage Act, 1955, direction had been issued for payment of a lumpsum amount of Rs.25,000/- and for payment of Rs.5,000/- per month to the answering opposite party and since by means of impugned order, the said directions have been executed, the same amounts to an order having the trappings of finality and therefore does not amount to interlocutory order. 4. Learned counsel for the opposite party has placed reliance on judgment rendered by Co-ordinate Bench of this Court in the case of Sandeep Kumar Mishra v. Principal Judge, Family Court and 2 ors. to buttress his submissions. 5. 4. Learned counsel for the opposite party has placed reliance on judgment rendered by Co-ordinate Bench of this Court in the case of Sandeep Kumar Mishra v. Principal Judge, Family Court and 2 ors. to buttress his submissions. 5. Learned counsel for the petitioner has refuted the submissions advanced by learned counsel for the opposite party with the submission that in terms of section 18 of the Family Courts Act, 1984, the mode of execution of decrees and orders passed by the Family Court have been clearly indicated wherein execution can take place only in terms of the provisions of Code of Civil Procedure but the impugned order has been passed in proceedings under section 13 of the Hindu Marriage Act, 1955 which is without jurisdiction. It is also submitted that since there is continuing cause of action accruing every month to answering opposite party, the same is of interlocutory nature and therefore an appeal under section 19 of the Family Courts Act, 1984 is barred. 6. Upon consideration of submissions advanced by learned counsel for the parties, it is evident that by means of order dated 06th September, 2022, pendente lite maintenance was awarded under section 24 of the Hindu Marriage Act, 1955 whereby direction had been issued for a one time payment of Rs.25,000/- to the answering opposite party with continuing payment of Rs.5,000/- per month to her. By means of impugned order, the said direction issued earlier by the Family Court have been implemented with a specific direction to the employer of petitioner to deduct Rs.25,000/- from petitioner's salary as a one time measure and for deduction of Rs.5,000/- per month from his salary to be deposited with the Court. 7. With regard to an order passed by the Family Court being interlocutory or having been trappings of finality, a Co-ordinate Bench of this Court in the case of Sandeep Kumar Mishra (supra) relying upon the Full Bench decision of this Court in the case of Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava' 2006 A.C.J. 1936 has held that an order passed under section 24 of the Hindu Marriage Act, 1955 although pendente lite maintenance, has the trappings of finality and would therefor be appealable under section 19(1) of the Family Courts Act, 1984. 8. 8. Although the aforesaid judgment pertains to provisions of Section 24 of the Act regarding grant of maintenance, but the observations of the Full Bench would have relevance even in the present case. The relevant paragraphs of the Full Bench are as follows:- "28. The learned counsel for the respondents has referred to the definition of "interlocutory orders" in Vol. 22 of the third edition of Halsbury's Law of England and also to Central Bank of India v. Gokul Chand, AIR 1967 SC 799 and also to Amar Nath's case and Madhu Limaye's case (supra), so as to say that order under Section 24 of the Act of 1955 are just steps in aid of the main proceedings and have no existence independent of the main proceedings, so will not fall within the definition of the judgment and will be only an interlocutory order. We are of the view that in view of the discussion made above order of pendent lite maintenance has all the characteristics and trappings of the judgment as it decides the valuable rights and liabilities of the parties to the proceedings. In so far as those rights and liabilities are concerned the order is final. The fact that the considerations that matter in granting or refusing pendent lite maintenance under Section 24, have no connection with issues in the main proceedings or the question that even after disposal of application under Section 24, the main petition remains alive for disposal, do not prevent the order under Section 24 from falling within the definition of the "judgment". We are also of the view that the expression "interlocutory order" appearing in sub-section (1) of Section 19 of the Act 1984 qualify the word "order" only and does not qualify the word "judgment" appearing before the word "order". In other words, if order of pendent lite maintenance is a "judgment" for all legal and practical purposes, it matters, little whether the same is interlocutory or final. 29. With due respect to the Hon'ble Judges deciding cases of Smt. Pratima Sen Gupta and Ravi Saran Prasad @ Kishore (supra), we find ourselves unable to subscribe to the view taken therein. The reasoning that since the Bill intended to provide only one right of appeal against the judgment and order of the family court, so right of appeal was not permissible against order under Section 24, was not sound one. The reasoning that since the Bill intended to provide only one right of appeal against the judgment and order of the family court, so right of appeal was not permissible against order under Section 24, was not sound one. To our mind, declaration in the Bill introducing the Act of 1984 that only one right of appeal was to be provided did not mean that order under Section 24 granting pendent lite maintenance was not a "judgment" for purposes of subsection (1) of Section 19. As observed earlier and as held in Full Bench decision of this case in Prem Lata's case (supra), second appeal also lay against decrees and orders initially appealable under sub-section (1) or sub-section (2) of Section 28 of the Act of 1955. Similar right of second appeal could have also been against orders to be passed in such matters under other enactments. We think the Parliament made it clear that there shall be only one right of appeal against the judgments and orders of the family court. In other words, the right of second appeal which could have earlier been available under the respective enactments its, was taken away. Parliament wanted to provide only one appeal, against a particular adjudication or decision of a family court. In other words, against the same decision or adjudication, there could not be two appeals. 30. We agree with the view taken by the Division Bench in Avadhesh Narain Srivastava's case. Since orders under Section 24, granting pendent lite maintenance is a judgment, so appeal will lie under sub-section (1) of Section 19 of the Act of 1984. " 9. Upon applicability of aforesaid judgment in the present fact and circumstances of the case, it is seen that by means of impugned order the earlier order dated 06th September, 2022 has been implemented in its totality and as such nothing further remains to be decided. The aspect as to whether the said order is without jurisdiction is a matter to be considered in appropriate proceedings. The aspect as to whether the said order is without jurisdiction is a matter to be considered in appropriate proceedings. However, since the order under section 24 of the Hindu Marriage Act, 1955 has been executed/ implemented in its totality, in the considered opinion of this Court, it would have the trappings of finality since nothing further is left to be decided and as such would not fall within the meaning of term 'interlocutory' as has been enunciated by Full Bench of this Court in Smt. Kiran Bala Srivastava (supra). 10. In view of the aforesaid and in view of the availability of alternative and equally efficacious remedy to the petitioner by way of filing of an appeal, the present petition is dismissed on that account. 11. Office is directed to return the certified copies of the orders which are on record for the purposes of filing of appeal.