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Another question about family court 125

(Querist) 20 February 2014 This query is : Resolved 
1) Wife filled 125 crpc and ask for maintenance. In family court.
2) Judge ask both me and my wife to file income affidavit according to punit kaur.
3)On next date fined me rs.2,000/- for not submitting that affidavit but did not fined wife.
4) I submit that affidavit but wife not till today.
5) Judge change, new Judge on 2nd date, ordered Rs. 15,000/- pm interim maintenance out of rs.13000/- ITR. She is very arrogant and not ready to listen any husband.
6) Highcourt refuse to hear as this is interlucatory order of family court and is barred by section 397 of family court act.

Question: What can I do as judge did not follow her own order ? Do I still have to follow the order ? Isn't judge answerable for being one sided ?
Dr J C Vashista (Expert) 20 February 2014
a) Challange the order of Family Court irrespective of the fact that it is an interlocutory order. High Court will have to hear/admit your petition u/s 397 Cr PC
b) Take certified copies of order sheets and request HC about baised order passed by Family Court.
c) Change your lawyer, if you feel dissatisfied
Devajyoti Barman (Expert) 20 February 2014
agree with above.
Zeeshan (Querist) 20 February 2014
High court already dissmiss my appeal saying barred by section 397(2) of family court act.
V R SHROFF (Expert) 20 February 2014

AS YOU POSTED OVER 100 QUERIES::::

No use double crossing Advocates:::

I further suggest, retain good Sr Adv.
I understand injustice and harassment to you due to woman oriented laws, but only a good adv can help. Self help is harmful..

Tell all those Query to your Advocate, and let him do needful.
it will help u.
Nadeem Qureshi (Expert) 20 February 2014
Dear Zeeshan
there are many judgments in which the court clearly held that interim maintenance order is not interlocatory order
Sunil Kumar Sabharwal vs Neelam Sabharwal And Anr. on 1 November, 1990 Equivalent citations: 1991 CriLJ 2056, I (1991) DMC 547, (1991) 99 PLR 307
ajay sethi (Expert) 20 February 2014
nadeem has done your home work too .
Zeeshan (Querist) 20 February 2014
some 2013 judgement says interim maintenance is interlocutory order. I don't know which.

Please update.
Rajendra K Goyal (Expert) 20 February 2014
Citation not provided in this section. If the Judge has referred this order he must has quoted the citation.
Biswanath Roy (Expert) 20 February 2014
Appeal against the interim maintenance order u/s.125 Cr. P.C made by the Family Court does not lie as it is barred by the FAMILY COURT ACT. HENCE, you can file an application under Article 226 of the Constitution of India with the allegation that the impugned order is a violation of Natural Justice and the Learned Judge of the Family Court is biased as you vehemently oppose such order in the open court.
Zeeshan (Querist) 20 February 2014
@ Mr. Biswanath

Got something new from you. A ray of hope.

Please clarify where to file this application ?
Biswanath Roy (Expert) 20 February 2014
CONSTITUTIONAL BENCH OF THE HIGH COURT OF JURISDICTION.
Zeeshan (Querist) 20 February 2014
@ Mr. Biswanath

Thanks.
My appeal for revision is already dissmiss by Delhi highcourt on 19,December 2013 as barred Section 397(2) Cr.P.C.

Can I still file application under Article 226 ?
DEFENSE ADVOCATE.-firmaction@g (Expert) 20 February 2014
Go to HC than to SC under this article and that is not joke . It is text book advice but will cost money which may be more than what you can afford.

And ultimate advice will be go to PARLIAMENT and even after spending a fortune on such advice what is the assurance of results.

More over with outside advice you will sit on the head of your advocate and at least any smart advocate will not touch you even with a long pole , since you hurt his ego.

If you have to bring results you must have respect and trust for your counsel than only he can work otherwise as you have stated in other post that they are just milking you.

There are always people who prepare case bring new defense , new tactics and bring results not heard before and that is why new case laws / citations are created.
Biswanath Roy (Expert) 20 February 2014
@ Mr.Zeeshan,
Application under Article 226 of the Constitution of India shall be dealt with the constitutional question Whether the impugned order of maintenance infringes natural justice guaranteed by the Constitution of India or not and secondly whether or not it is a case of Administrative BIAS.
T. Kalaiselvan, Advocate (Expert) 20 February 2014
The opinions of experts Mr. V.R.Shroff and Advocate Defense are to be taken into account before taking any further step on the subject issue. The author may follow the proper steps or may follow expert Mr. Biswanath Roy's advise, upto you.
Zeeshan (Querist) 20 February 2014
I can't understand what is the proper steps ? I have seen husbands going to jail for not paying maintenance or arrear. They are accompanied by lawyers.


What should I Do ? Give 4 lakh arrear plus 15000 pm plus fees of advocates and legal works in six cases as almost 10 thousand and and become bankrupt ?

Why do I finance and encourage crime ?

Most importantly why do I pay ? What is my fault ?

From where do I get so much money ??

Give me proper steps.
Biswanath Roy (Expert) 20 February 2014
You may take legal help from THE LEGAL AID SOCIETY of Delhi High Court for legal help free of all costs and expenses.
Zeeshan (Querist) 20 February 2014
Sorry but no issue in paying fee for advocate.
Zeeshan (Querist) 20 February 2014
Give me proper steps other then blind faith on advocate. It's my advocate who file appeal in HC in wrong section, drag case for 10 months, make me pay his fees and 56000 to wife.

Result -Application dissmiss due to wrong section.
Dr J C Vashista (Expert) 21 February 2014
Filing a petition/application under wrong provisions of law do not make any difference, even the registry of HC (I know very well about Delhi High Court)will put an objection for maintainability under the provision, if mentioned wrong.
Move revision petition u/s 397 Cr PC, it is maintainable.
Zeeshan (Querist) 21 February 2014
Already disdmissed in highcourt as family court interlucotry barred by section 397(2).

http://www.lawyersclubindia.com/experts/Strait-question-about-family-court-s-interim-appeal--449276.asp
Biswanath Roy (Expert) 21 February 2014
Better you file an application before the ADMINISTRATIVE COURT UNDER THE HON'BLE CHIEF JUSTICE OF THE HIGH COURT by affixing a court fee stamp of Rs.250/- with the undertaking to give more court fee stamp if needed according to High Court rules highlighting the facts that as you grumbled before the Judge of the Family Court regarding fixation of maintenance as Rs.15,000/- per month she being biased with your annoyance did not reconsider it against which your lawyer filed an appeal which was rejected on the question of its maintainability but such order violated natural justice. You may consult any Senior lawyer of the Delhi High Court in this regard.
Zeeshan (Querist) 23 February 2014
Wating for right steps...........................
ajay sethi (Expert) 23 February 2014
Patna High Court - Orders
Arvind Kumar Singh vs The State Of Bihar & Anr. on 29 November, 2013
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.623 of 2011

====================================================== Arvind Kumar Singh son of Kanhaiya Prasad Singh, R/O Village- Chhatuana, P.S. Nokha, Distt- Rohtas

.... .... Petitioner/s

Versus

1. The State Of Bihar

2. Baby Binita Devi D/O Sri Hari Narayan Singh R/O Village-Hasan Bazar, P.S. Hasan Bazar, Distt-Bhojpur.... .... Respondent/s ====================================================== Appearance :

For the Petitioner : Mr. Jitendra Singh, Sr. Advocate Mr. Shankar Kumar Thakur, Adv.

Mr. D.K. Singh, Adv.

For the State : Mr. Manish Kumar-2, APP For O.P. No. : Mr. Basant Kumar Choudhary, Sr. Adv. Mr. Deepak Kumar, Advocate.

====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER

8 29-11-2013 Heard learned counsel for the petitioner, learned counsel for O.P. No.2 as well as learned APP for the State.

2. Husband/petitioner has challenged the order dated 10.03.2011 passed by Principal Judge, Family Court, Bhojpur at Ara in Cr. Misc. (Maintenance) case No. 102/2008 whereby and whereunder petitioner/husband has been directed to pay Rs. 6,000/- per month in lieu of interim maintenance to be effective from date of passing or order as well as Rs. 4000/- as litigation cost.

3. After hearing both sides, it is apparent that the status of the parties are admitted one. It is further found admitted regarding birth of a minor girl child out of wedlock. It is also apparent that on account of marital discord, disharmony criminal 2

cases as well as suit in terms of Section-7 (1) as well as 2 (present one) of the Family Court Act is being fought amongst the parties. It has also been divulged that during hearing of anticipatory bail petition filed on behalf of husband vide Cr. Misc. No. 30002/2008 in a case criminal case under Section 498A IPC Cr.P.C along with other allied Sections filed by the wife, Rs. 2000/- was granted in favour of wife right from institution of the police case.

4. Having marital life full of pitchiness even perceived by the spouses did not stop them from standing at rivage, and under peal of such acrimoniousness , it has been pleaded on behalf of husband/petitioner that the ground of interim maintenance is bad because of the following :-

a. The wife on her own deserted the husband/petitioner without any cogent and justified reason.

b. She is suffering from mental disorder. c. A divorce suit is pending filed on behalf of husband/petitioner on the aforesaid plea. d. The amount is exorbitant one in the background of the salary statement which husband/petitioner is getting.

5. As such, it has been submitted that grant of interim maintenance by the learned lower court is bad and illegal.

6. On the other hand, the learned counsel for O.P. No.2 has submitted that a proceeding under Section 125 Cr.P.C. is a 3

summary proceeding wherein only, prima facie, evidence adduced on behalf of respective parties are to be looked into, subject to final authority over the issue by the competent court. It has further been submitted that though wife has got a reasonable explanation for staying away from the matrimonial life on account of torture and having been kicked out therefrom and for that, the husband is guilty of his own fault compelling the wife to stay away. By pleading that wife suffers from mental disorder is another circumstance which exposes how the husband in calculated manner is embordering the wife from his life. Pendency of divorce suit is not at all found obstacle in between because of the fact both are two different kind of litigation, deals with two different streams without overlapping each other save and except in terms of 127 (2) Cr.P.C. From the salary statement itself, it is evident that husband is a Government servant and is enjoying the usufruct thereof by having annual increment in his salary along with DA as well as bonanza as per report of Finance Commission. Therefore, prayer of the husband/petitioner for the present is against the legislative intent.

7. Apart from above referred grounds, during course of argument a noticeable point has been raised on behalf of wife, O.P. No.2 with regard to maintainability of instant revision 4

petition. It has been submitted on behalf of O.P. No.2 that the order impugned being interim in nature is absolutely beyond the purview of revisional jurisdiction because of the fact that interim maintenance is an interlocutory arrangement subject to merger with the final adjudication. The order impugned is identifiable only during course of pendency of the proceeding having a scope of modification. Being an interim measure having its only object to provide some sort of subsistence allowance during pendency of main proceeding in the background of absence of source of livelihood to the applicant. It does not decide the issue in its finality, nor does it affect adversely over plea of the parties which are found subject to conclusive adjudication during main proceeding, therefore, the order has to be considered as interim order and on account thereof, is found barred under Section 19 (4) of the Family Court Act.

8. On the other hand, the learned counsel for the husband/petitioner has submitted that though the order impugned is found coloured with the term interim maintenance but it has got an adverse impact upon the interest of the party for ever and will influence the process of final adjudication and its outcome, on account of determination of status of the parties for the present therefore, the order impugned cannot be accepted as an 5

interlocutory order.

9. Referring the case law Mohit @ Sonu v. State of U.P. as reported in (2013) 7 SCC 789, it has been submitted that the Hon‟ble Apex Court has reaffirmed its verdict given on previous occasion in Amar Nath's case as well as Madhu Limaye's case while identifying the nature of order under these categories, (a) final order (b) interlocutory order wherein, it has been held that any order passed at any stage of the proceeding in case decides the issue in question in its finality, then in that event, the order impugned cannot be termed as an interlocutory order. In Sunil Kumar Sabarwal v. Mrs. Neelam Sabarwal as reported in 1991 Cr.L.J. 2056 the Division Bench of Punjab and Haryana High Court has held the order of interim maintenance revisable one. As there is no occasion to differ therefrom and the reasoning so assigned therein is found sound, convincing and reasonable one, hence the order of interim maintenance should be treated as revisable one.

10. Further, referring Raj Kumar Sah v. State of Bihar reported in (2008)4 PLJR 817 (DB), it has been submitted that any kind of order passed by the Family Court is revisable under Subclause-4 of Section-19 of the Family Court Act.

11. It has further been asserted that when there is 6

special law and procedure are laid down to conduct the trial, then in that event, those procedures are to be followed during conduction of trial. Family Courts Act is a special Act having overriding effect hence any litigation having amongst the parties in terms of Section-7 of the Act, it is to be proceeded in terms of Family Courts Act and to support such plea relied upon A.R. Antule v. R.A. Naik (1998) 2 SCC 602, Allahabad Bank v. Canara Bank reported in (2000) 4 SCC 406. Also referred (1996) 1 PLJR 815 (M/s. Shri Goshala v. State of Bihar).

12. The learned APP has submitted that all the orders are bound to decide the issue which has been raised by the contesting party at different stage of litigation. That means to say, the questions so raised at particular moment of the proceeding has to be accordingly, decided by an order but all the orders so passed cannot be said that either it has decided the issue in its conclusiveness or having adverse impact upon the party in its finality. And that happens to be reason behind bifurcating the order under two different categories the final order as well as interlocutory order. Its main object is to avoid multiplicity of litigation as well as unwarranted litigation. As such, the order impugned is though for the time being, may cost pocket of the husband which he is bound to suffer to give 7

support to his better half who has fallen victim at his end event then, cannot be identified as an order deciding the interest of the parties in its finality and being so, is an interlocutory order.

13. When the history of interim order is looked into, it is apparent that since before amendment of 2001, no such provision was visualizing under Criminal Procedure Code. Taking into account the period consumed during litigation as well as taking into account the pitiable status of a woman, minor children, old parents staying at the verge of vagrancy and destitute, forced the Hon‟ble Apex Court to consider the matter and in case of Savitri v. Govind Singh Rawat as reported in 1985 (4) SCC 337, the aforesaid event was conceived, explained and then the law was laid down that even in absence of such provision in the Cr.P.C., taking into account the object of Section 125 as well as being the benevolent law and furthermore, in order to enjoy the usufruct of the proceeding, applicants should be alive till the date of the final order and for that they are found to be properly cared of by way of grant of interim maintenance. The contrary view was also taken into consideration and for better appreciation the relevant portion of para-6 is quoted below:-

" .........A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. 8

There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties.........".

14. The procedure for grant of interim maintenance and the matters to be considered on that very moment was also laid down in the said judgment in the following manner:- ".........The magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant.........."

15. The nature of the order and the scope of the parties on that very score and the remedies available against the same, further has been identified and explained in following way:- Para-6)

"............. If the allegations in the application or the affidavit are not true, it is always 9

open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In taking this view we have also taken note of the provisions of Section 7 (2) (a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by magistrates under Section 125 of the Code to the Family Courts constituted under the said Act."

16. The Law Commission had an occasion to go through the aforesaid decision and recommended for amendment by way of incorporating a passage for interim maintenance. While considering so, the Parliament took into account the object of the legislation and the status of vagrancy having faced by the applicant during midst of main proceeding which are fought for years together, ultimately, voted and allowed the recommendation. At the present moment, the statement of objects and reasons so placed before the Parliament necessitated to be quoted below as referred in:- (2008) 10 Scale 602 (Shail Kumari Devi v. Krishan Bhagwan Pathak @ Kishun B. Pathak)

" 26. In the Statement of Objects and Reasons, it was 10

stated;

"It has been observed that an applicant, after filing application in a Court under Section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the Court. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said Section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that the order be made ordinarily within sixty days form the date of the service of the notice."

17. Legislature while introducing amendment in Section 125 was very much conscious regarding its application, consideration and adjudication and on account thereof, it has been provided:- " provided also that application for the monthly allowance for the interim maintenance and expenses of proceeding under second proviso shall, as far as possible, be disposed of within 60 days from the date of the service of notice of the application to such person".

18. It denotes that the matter has to be decided at an earliest, appearance of opposite party was not at all condition precedent for passing of the order and further, neither any sort of procedural norms were prescribed therefor. The aforesaid issue is further found cleared when one goes through Section 126 of 11

the Cr.P.C. which prescribes the procedure to be followed during conduction of main proceeding under Section 125 Cr.P.C. and not for interim maintenance. Had there been the intention of the Parliament, certainly there should have been incorporation of the word „interim maintenance‟ also at the relevant places.

19. Rightly, the grant of interim maintenance is not inscribed by the procedural law because of the fact that in that event, the grant of interim maintenance again fall under jiggle of procedural law and by such action, will certainly frustrate its main aim, goal for which such provision is found introduced. Had there been such intention of the legislature, it should not have incorporated proviso prescribing outer limit of sixty days for passing the order since issuance of notice.

20. At the present moment, one should not lose sight of Section 127 of the Cr.P.C. which specifically deals with the alteration in allowance in case of presence of exigency so enumerated thereunder and its subsection-1 specifically denotes the same:-

127. Alteration in allowance.-

[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance, for the maintenance or interim maintenance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for 12

the maintenance or interim maintenance as the case may be.]

Apart from this, Section 125 (4) of the Cr.P.C could be also seen at the present moment.

(4) No wife shall be entitled to receive an[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

Having the conjoint reading of both the provisions, it is apparent that grant of interim maintenance is always opened to variance at any moment as well as the grounds which disentitle the applicant to claim for. All these things are found to surface only after having appearance of the O.P. as well as having proper evidence on that score. At this very moment the observation as laid down in Savitri Case (Supra) is to be taken note of wherein the Hon‟ble Apex Court had expressed its view that "after appearance of O.P. and having finding substance in his plea, the grievance so put forth by the O.P. on this score, should be found properly redressed". That means to say, in relevant cases, it may be recalled or rescind or modified or altered even to the extent of reduction of quantum.

21. Having such kind of privilege available to the 13

adversary to say against the persisting order as well as permissibility of order to such kind of flexibility, elasticity whereunder the order is permitted to stint did not embryo with finality consequent thereupon should not be accepted as final order.

22. Under Section 19 (4) of the Family Courts Act, like Criminal Procedure, the revision has been barred against an interlocutory order. Like Criminal Procedure Code, the Family Court Act also failed to define the interlocutory order. Because of the fact that Section-19 (4) of the Family Court Act deals with Chapter-IX of the Cr.P.C. which contains the heading maintenance and on account thereof, the term interlocutory order so used and explained by several judicial pronouncements by the Hon‟ble Apex Court time to time relating to Section 397 Cr.P.C is also be found applicable while identifying the interlocutory order. Moreover, the issue in hand relates with defining the heading "interim".

23. In Webster‟s Dictionary the word "interim" has been shown as, "meanwhile", "between", "more at", "a time intervening", "meantime", "interval", "a provisional decision or arrangement".

24. When it happens to be the provisional 14

arrangement, that means to say, it happens to be an arrangement so made for a particular span of time and is in its nomenclature, is found to be amenable at any moment during continuance of a case, if the Court so considers and that is also the intention of the Parliament as well as is also visualizing from the judgment, which happens to be the origin as well as source of such amendment, the Savatri's case (supra).

25. Learned counsel for the petitioner has referred Mohit @ Sonu v. State of U.P. (2013) 7 SCC 789 whereunder though issue was different relating to scope of Section-319 of the Cr.P.C. and its remedial procedure and the matter for consideration before the Hon‟ble Apex Court was whether presence of Section 397 (2) of the Cr.P.C. will debar the High Court from exercising inherent jurisdiction under Section 482 of the Cr.P.C., under para 16 as well as 22 had made reference of Amar Nath's case in the aforesaid background although had identified the nature of the order to be interlocutory when the same did not decide the issue in its finality adversely affecting the interest of the parties in its conclusiveness. The aforesaid finding of the Hon‟ble Apex Court given in Amar Nath's Case was taken into consideration in the case Binod Kumar Pandey v. State of Bihar reported in 2000(2) PLJR 546 while identifying 15

the order for interim maintenance as an interlocutory order and taking into account all the relevant earlier decisions laid by Hon‟ble Apex Court including Amar Nath's Case in para-18, it has been concluded as such:-

"18. Thus Section 125 is not intended to provide for a full and final determination of status and personal rights of the parties. The jurisdiction conferred by section on the Magistrate is more in nature of preventive, rather than a remedial jurisdiction; it is certainly not punitive. In view of scope of the provision, the Magistrate is empowered either to modify or even cancel the order passed by him earlier. Considering this fact, granting interim maintenance pending under section 125 of the Code is an interlocutory order and thereby no revision is maintainable under section 397 (2) of the Code."

26. In Md. Tahir v. State of Bihar reported in 2007 (3) PLJR in para-7, it has been held:-

"7........ After marriage it is duty of the husband to provide shelter and maintenance to his wife and children. If he neglects, wife and children are entitled to have it from court by filing petition. In an application for grant of interim maintenance summary enquiry is only required. It appears from the impugned order that the learned magistrate after hearing both the parties allowed the prayer of ad interim maintenance in favour of wife and child. Inter maintenance is always subject to final adjudication of the main petition and also can be revised......."

27. In Smt. Mamta v. A Vaidya reported in 1992 Cr.L.J 2605 again the term interim maintenance has been taken 16

into consideration and has been defined as interlocutory order having based upon the relevant judicial pronouncements made by the Hon‟ble Apex Court including Amar Nath's case and concluded in para-17 which is as follows:- "17. The Chapter IX of the Code of Criminal Procedure contains summary and quick remedy for securing some reasonable sum by way of

maintenance, thereby to protect the destitute wife against starvation. Chapter IX of the Code does not, in reality create any serious new obligation unknown to Indian social life. This chapter provides "a mode of preventing vagrancy, or at least of preventing its consequences." These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their substance. Thus, Section 125 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive. In view of the spirit of the provisions, the Magistrate is empowered either to modify or even to cancel the order passed by him earlier. Considering this fact, granting interim maintenance, pending proceedings under Section 125, Cr.P.C. is an "interlocutory order" and thereby no revision is maintainable under Section 397(2) of the Code of Criminal Procedure. Thus, 2nd Additional Sessions Judge, Chandrapur, committed error while entertaining and deciding the criminal revision No.9/91 and, therefore, the order passed by him is set aside."

17

28. In Sunil Kumar Sabrawal v. Neelam Sabrawal reported in 1991 Cr.L.J 2056, a Division Bench decision of the Punjab and Haryana High Court while identifying the order on that very score out of purview of interlocutory order, their Lordships have simply considered that by such order the husband was saddled with liability to pay maintenance till it was either finally decided or it was valid in case there is default at the end of husband, coercive process could be used against the petitioner. It has further been held that the rights and liabilities of the parties stood determined though until final decision of the case by the impugned order and the order could not, therefore, be considered to interlocutory. It has further been held that it does not stand to reason that the aggrieved party should have no remedy against the order fixing interim maintenance.

29. The aforesaid reason is found fully and properly answered in the forgoing paragraph and in the aforesaid background, the husband can avail if he so desires even asking for cancellation of the order, the opportunity at the level of the magistrate itself at any moment during course of continuance of proceeding. When the grievances are found to be redressable in terms of law itself, then in that event, certainly to satisfy the illegal claim of the party, mechanism should not be invented. 18

Apart from this, in Sunil Kumar Sabrawal case (as referred by the petitioner), such course has not been perceived or para-6 of Savitri Case (supra) was taken into consideration.

30. In the case of Shri Mandir Sita Ramji v. Lt. Governer of Delhi & Ors as reported in AIR 1974 SC 1868, it has been held:-

"when a procedure is prescribed by the

legislature, it is not open for the Court to substitute a different one according to its motion of justice. When the legislature has spoken the judges cannot afford to be wiser".

31. Hence, after giving my anxious look to the order impugned inconsonance with the proposition of law, the order granting of interim maintenance is found and held to be interlocutory order and on account thereof, revision in terms of Section 19 (4) of the Family Courts Act is found barred.

32. Petition is dismissed.

(Aditya Kumar Trivedi, J)

Patna High Court

Novermber 29th 2013

Perwez/AFR
ajay sethi (Expert) 23 February 2014
read para 22, 25 on wards . it says order of interim maintenance is an interlocutory order and no revision is maintainable .
Zeeshan (Querist) 23 February 2014
Thanks, but this did not serve the purpose.

Highcourt heard in 482 after submitting arrear or by writ in article 276 by double bench.

I discuss it with a good advocate.
DEFENSE ADVOCATE.-firmaction@g (Expert) 23 February 2014
This citation has clearly settled all the queries in respect of interim maintenance orders. Please read the SC citations quoted in this Judgment and particularly-


when a procedure is prescribed by the
legislature, it is not open for the Court to substitute a different one according to its motion of justice. When the legislature has spoken the judges cannot afford to be wiser".


THE COURT CLEARLY SAYS WHAT SHOULD BE DONE IN FOLLOWING WORDS-

And in the aforesaid background, the husband can avail if he so desires even asking for cancellation of the order, the opportunity at the level of the magistrate itself at any moment during course of continuance of proceeding. When the grievances are found to be redressable in terms of law itself, then in that event, certainly to satisfy the illegal claim of the party, mechanism should not be invented


So you have only simple option open is to go to lower court again for revision of order but with new grounds and cool head tactics.
Zeeshan (Querist) 24 February 2014
Great, thanks............

Benefit of asking query again and again..... :)
ajay sethi (Expert) 24 February 2014
thanks for your appreciation


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