Order under hm24
Yogesh
(Querist) 24 February 2013
This query is : Resolved
Hi
I want to go against the order passed by the Family court against me in the HM 24 proceedings in Punjab & Haryana HC, but I am not sure if it should be a Civil Appeal or Revision or Civil writ petition, as there are differant judgements in support of all. Can anyone guide me for the same ??
I think in the case of an order u/s 125 Cr.P.C, it is a criminal revision only. Please confirm this too
What are the time limits for both
Devajyoti Barman
(Expert) 24 February 2013
In WB , civil revision under Article 227 of Constitution lies against such rode.r
ajay sethi
(Expert) 24 February 2013
you are right differnt highj court have passsed conflicting orders on maintanablilty of appeals aganst interim order of maintenance . rcently delhi hihj court has held that appeals would lie to division bench of delhi high court against interim orders for maintenance .
for orders passed under 125 CR pC criminal revision would lie
ajay sethi
(Expert) 24 February 2013
Indian Kanoon - http://indiankanoon.org/doc/75248119/
Delhi High Court
Manish Aggarwal vs Seema Aggarwal & Ors on 13 September, 2012
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13.09.2012
+ FAO No.388 of 2012; CM No.15667 of 2012 & CM No.15668 of 2012
MANISH AGGARWAL ..... Appellant Through: Mr. J.P. Sengh, Sr. Adv. with Mr. Rajeev Saxena, Mr. Sumeet Batra,
Mr. R. Ahuja & Mr. Rajat Mittal, Advs.
Versus
SEEMA AGGARWAL & ORS ..... Respondents Through: Mr. Pramod Agarwal, Mr. Rahul Sharma &
Ms. Jugnu S., Advs.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VIPIN SANGHI
SANJAY KISHAN KAUL, J. (Oral)
1. The scope and ambit of Section 19 of The Family Courts Act, 1984 (hereinafter referred to as the ‗said Act') has to be examined by us in the present appeal.
2. The said Act was enacted with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and to deal with matters connected therewith so as to have a composite statute to deal with various aspects. Though the statute was enacted much earlier, its implementation has been done in a phased manner as the pre-requisite was the establishment of the Family Courts under Section 3 of the said Act. For example, in most districts of Delhi such Family Courts now stand established but still not in all. Chapter 5 of the said Act deals with Appeals & Revisions _____________________________________________________________________________________________ FAO No.388 of 2012 Page 1 of 25 and Section 19 of the said Act is the only Section falling under this chapter which reads as under:
―CHAPTER V - APPEALS AND REVISIONS
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 referred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.‖
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 2 of 25
3. The aforesaid controversy has arisen as the appellant has filed the present appeal to assail the impugned order dated 18.4.2012 passed by the Family Court in exercise of its jurisdiction to grant interim maintenance under the second proviso to Section 125 (1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‗Cr.P.C.') We have examined the scope and ambit of this appeal provision qua the different nature of orders which are passed by the Family Court as no appeal can be filed against a judgement or order of the Family Court which is an interlocutory order [see Section 19 (1) of the said Act] and no appeal lies in respect of an order, inter alia, which is passed under Chapter IX of the Cr.P.C. [see Section 19 (2) of the said Act]. We may note at the threshold that in FAO No.52/2012 titled Preety Bhardwaj Vs. Deepak Kumar Bhardwaj decided on 21.2.2012 passed by a Division Bench of this Court, wherein the judgement was authored by one of us (Sanjay Kishan Kaul, J.), the Court dealt with the impact of the absence of Rules under Section 21 of the said Act on the efficacy of the provision of Section 19 (1) read with sub- sections (5) & (6) of Section 19 of the said Act. In that context it was observed that a statutory right of appeal is created under Section 19 (1) of the said Act and such an appeal has to be heard by a Bench consisting of two or more Judges as per Section 19 (6) of the said Act, and the absence of Rules, which are to be framed by the High Court under Section 21 of the said Act, would not dilute the mandate of the legislation as contained in Section 19 of the said Act, especially in view of the use of the expression ―may‖ in Section 21 of the said Act. In another order in FAO No.448/2011 titled Ashwani Mehta Vs. Vibha Mehta decided on 19.10.2011, once again, the
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 3 of 25 scope of Section 19 (1) and 19 (6) of the said Act, which were brought to the notice of the Court was discussed. In a short order the appeal against an order under Section 125 of the Cr.P.C. was entertained, without any discussion in the light of the other provisions, and in that context a passing observation was made that the order of the Family Court is appealable under Section 19 of the said Act. This order is also authored by one of us (Sanjay Kishan Kaul, J.). However, in the present case the scope of exercise of jurisdiction by the High Court qua different kinds of orders passed by the Family Court, in the exercise of jurisdiction available under Section 19 of the said Act has been brought to our notice and considered by us, so that the principles are settled in respect of the judgements and orders of the Family Courts, from which an appeal or revision may be maintainable. Since this is a frequent issue arising, we have considered it appropriate to hear learned counsels for the parties at length to remove any ambiguity.
4. A reading of Section 19 of the said Act shows that under sub-section (1), save as provided in sub-section (2), an appeal lies from every judgement or order of the Family Court to the High Court, both on facts and on law. This is irrespective of anything contained in the Code of Civil Procedure, 1908 (hereinafter referred to as the ‗CPC'), Cr.P.C. or any other law, which would, thus, also include The Hindu Marriage Act, 1955 (hereinafter referred to as the ‗HM Act'). However, this right of appeal comes with one limitation, i.e., it does not lie against an interlocutory order. A question, thus, arises as to what is the meaning of an interlocutory order.
5. Sub-section (2) of Section 19 of the said Act specifically prohibits any appeal from an order passed under Chapter 9 of the Cr.P.C. _____________________________________________________________________________________________ FAO No.388 of 2012 Page 4 of 25 which contains only four provisions, i.e., Section 125 to Section 128. Thus, a conjoint reading of sub-section (1) and sub-section (2) of Section 19 of the said Act makes it clear that the appeal would not be maintainable before this Court from an order passed under Chapter 9 of the Cr.P.C. However, it is not as if a party aggrieved by an order passed under any of the provisions of Chapter 9 of the Cr.P.C. is remediless. This is so in view of sub-section (4) of Section 19 of the said Act, which provides for the revisionary power specifically qua an order passed under Chapter 9 of the Cr.P.C. making the intent of the legislature quite clear. Once again, the exception carved out is that it should not be an interlocutory order and, thus, it would have to be examined as to what is an interlocutory order in the context of Section 125 to Section 128 of the Cr.P.C. for the purpose of Section 19 (4) of the said Act.
6. We may also add that sub-section (5) of Section 19 of the said Act clearly prohibits any appeal or revision from any judgement, order or decree of the Family Court except as provided under sub-section (1) to (4) of Section 19 of the said Act. Sub-section (6) of Section 19 of the said Act provides for the appeal to be heard by a Bench of two or more Judges from every judgement or order not being an interlocutory order as is mentioned in sub-section (1) of Section 19 of the said Act.
7. Now coming to the provisions of the HM Act, Section 24 provides for Maintenance pendente lite and expenses of proceedings, Section 25 makes provisions for ‗Permanent alimony and maintenance' at the time of passing of the decree or subsequent thereto, Section 26 deals with passing of interim orders and making provisions qua Custody, Maintenance and Education of minor children, while Section 27 deals _____________________________________________________________________________________________ FAO No.388 of 2012 Page 5 of 25 with making provisions with respect to Disposal of property in the decree. Section 28 of the HM Act is the appeal provisions from the decrees and orders. The said provisions read as under: ―24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding 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:
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
25. Permanent alimony and maintenance.-
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 1[***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an _____________________________________________________________________________________________ FAO No.388 of 2012 Page 6 of 25 order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].
26. Custody of children.-
In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
[Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]
27. Disposal of property.-
In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.
28. Enforcement of, and appeal from, decrees and orders.-
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 7 of 25 [28. Appeals from decrees and orders. --(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the 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) Orders 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 ninety days] from the date of the decree or order.]‖
8. Section 28 of the HM Act underwent an amendment by Act 68 of 1976 made effective from 27.5.1976. A fundamental difference brought about by the amendment is that while earlier sub-section (1) of Section 28 of the HM Act provided for appeals from decrees and orders, post amendment appeals are provided only from decrees. This was to remedy the malice of appeals being filed from all and sundry orders passed during the progress of matrimonial proceedings from time to time, delaying the final adjudication of the matrimonial disputes. However, a specific provision was made qua Sections 25 & 26 under sub-section (2) of Section 28 of the HM Act. Thus, orders passed under these two provisions, i.e., Sections 25 & 26 were made appealable under sub-section (2) of Section 28. The qualification, once again, was that they should not be interim orders. We may note _____________________________________________________________________________________________ FAO No.388 of 2012 Page 8 of 25 that orders passed for permanent alimony and maintenance under Section 25 per se are in the nature of final orders as they are passed at the time of passing of the decree or any time subsequent thereto, unless they are procedural in nature. This is so as issues of interim maintenance pending matrimonial proceedings are dealt with under Section 24 of the HM Act. Section 26 of the HM Act, on the other hand, deals with only passing of interim orders and making provision in the decree as may be deemed just and proper with respect to custody, maintenance and education of minor children. Orders passed under Sections 25 & 26 of the HM Act were specifically incorporated as one of the species against which an appeal would lie under sub-section (2) of Section 28 of the HM Act. The only way by which full effect can be given to the appeal provision is by construing the expression ―interim orders‖ used in sub-section (2) of Section 28 of the HM Act to mean procedural orders passed while dealing with proceedings under Sections 25 & 26 of the HM Act.
9. We may add here that the legislature in its wisdom amended sub- section (1) of Section 28 of the HM Act in 1976 by removing the provision of appeal against all kinds of orders [except those covered by sub-section (2) of Section 28], but subsequently enacted the said Act in the year 1984, to provide for an appeal from all judgements and orders under sub-section (1) of Section 19 of the said Act, not being interlocutory orders.
10. Now coming to the provisions of Chapter 9 of the Cr.P.C, the heading of the Chapter reads as ―Order for Maintenance of Wives, Children and Parents‖. The said provisions read as under: ―125. Order for maintenance of wives, children and parents.
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 9 of 25 (1) If any person leaving sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.
[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 10 of 25 application to such person]
126. Procedure.
(1) Proceedings under section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
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
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 11 of 25 thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) In the case where such sum was paid before such order, from the date on which such order was made,
(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to [maintenance or interim maintenance, as the case may be] after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom [ monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person [as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 12 of 25
128. Enforcement of order of maintenance.
A copy of the order of [maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to [whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the 3[allowance, or as the case may be, expenses, due].‖
11. We may note qua Section 125 of the Cr.P.C. that the second proviso to sub-section (1) inserted by the Amending Act 50 of 2001 w.e.f. 24.9.2001 specifically empowers the Magistrate to grant interim maintenance pending consideration of the application under Section 125 of the Cr.P.C.
12. Having taken note of the relevant provisions of some of the legal provisions, we now proceed to discuss the judicial views of different Courts qua the scope of the aforesaid provision, viz., Section 19 of the said Act.
(i) Rahul Samrat Tandon Vs. Smt. Neeru Tandon 2010 (5) ALJ 134 [Division Bench judgement of the Uttarakhand High Court]
13. The matter pertains to an order passed by the Family Court on an application under Section 24 of the HM Act. On an objection being raised to the maintainability of the appeal under Section 19 (1) of the said Act, the conflicting views of the different High Courts were examined. The Karnataka High Court, the Rajasthan High Court and the Orissa High Court had held that an order passed under Section 24 of the HM Act was not open to appeal under Section 19 (1) of the _____________________________________________________________________________________________ FAO No.388 of 2012 Page 13 of 25 said Act while, on the other hand, the view of the Allahabad High Court was to the contrary. The Allahabad High Court's view is predicated on the reasoning that while exercising jurisdiction under Section 24 of the HM Act, the Family Court does not really pass an interlocutory order as the order gives finality to the issue raised in the application for interim maintenance. It may technically come under the definition of an interlocutory order, yet it has trappings of a ―judgement‖ as it decides the issue finally between the parties. Since it is a judgement, it would be appealable under Section 19 (1) of the said Act. The Uttarakhand High Court agreed with this view and brought out the significance of the use of both the words, ―judgement‖ and ―order‖ in Section 19 (1) of the said Act. Thereafter the meaning of the expression ―judgement‖ as enunciated in judicial pronouncements was analyzed, more specifically with reference to the case of Shah Babulal Khimji Vs. Jayaben D. Kania & Anr. AIR 1981 SC 1786 where it was observed that an order, or even an interlocutory order could be called a judgement when it had the quality of attaching finality to it. After extracting the relevant portions from the said judgement it was pointed out that Section 19 (1) of the said Act provides for appeals against judgements or orders while, on the other hand, under Section 96 of the CPC appeals are only against decrees. Similarly, Section 28 (1) of the HM Act, post amendment, appeals lie only against decrees. Thus, the rationale for the conscious decision of the legislature to make a departure by providing appeal against judgements and orders under Section 19 (1) of the said Act was analyzed. It is in this context that a conclusion was reached that an order under Section 24 of the HM Act granting or declining interim maintenance is one having the quality of finality. _____________________________________________________________________________________________ FAO No.388 of 2012 Page 14 of 25 Even though it had nothing to do with the ultimate result of the substantive proceeding, such as under Section 13 of the HM Act, it was opined that proceedings under Section 24 of the HM Act is a separate proceeding within a proceeding, and thus, an order passed thereunder cannot, simply be called an order of an interlocutory nature as it is a judgement.
14. The judgement of the Full Bench of the Allahabad High Court in Smt. Kiran Bala Srivastava Vs. Jai Prakash Srivastava 2005 (23) LCD 1 was relied upon which emphasized the significance of an order under Section 24 of the HM Act. Thus, a refusal of grant of maintenance, or grant of inadequate maintenance would have a serious consequence for the spouse (generally the wife) as it may have the result of him/her giving up the idea of defending himself/herself or for prosecuting the substantive proceeding for want of sufficient means. Similarly, non-payment of the amount awarded under Section 24 of the HM Act could visit the concerned party with the consequence of striking out of the defence or of dismissal of his/her cause.
15. We consider it appropriate to extract the discussion quoted in the aforesaid judgement from Shah Babulal Khimji case (supra), which reads as under:
―11. ....The Apex Court laid down that there can be three kinds of judgments. Relevant portion of the said judgment to that effect is as follows:
―(1) A final judgment--A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably _____________________________________________________________________________________________ FAO No.388 of 2012 Page 15 of 25 is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.
(2) A preliminary judgment--This kind of a judgment may take two forms--(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit. Absence of notice under Sec. 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.
(3) Intermediary or interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse affect on the party concerned must be direct and immediate rather than indirect or remote...‖
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 16 of 25
16. We may only note that the contra view of the Rajasthan, Karnataka and Orissa High Courts is reflected in para 10 of the judgement in Rahul Samrat Tandon case (supra), which reads as under: ―10. It is true that other cases cited by the respondent i.e. Mahesh Bhardwaj Vs. Smt. Smita Bhardwaj AIR 1995
Rajasthan 47 as well as R. Varadaraj v. Smt. V. Nirmala AIR 2002 Karnataka 241 and Full Bench of the Orissa High Court in Swarna Prava Tripathy and another Vs. Dibyasingha Tripathy and another AIR 1998 Orissa 173 have held that an order passed under Section 24 of 1955 Act is not open to an appeal under Section 19 of 1984 Act as the order is interlocutory in nature. On the other hand, a division bench of the Allahabad High Court in Avadhesh Narain Srivastava v. Archna Srivastava, 1990 LLJ 183 and subsequently a full bench of the Allahabad High Court in Smt. Kiran Bala Srivastava vs. Jai Prakash Srivastava [2005(23) LCD 1] after discussing all the relevant law including the law cited by the respondent came to a conclusion that an order passed by a Family Court under Section 24 of 1955 Act granting maintenance pendente lite proceeding is not an interlocutory order as it gives a finality to the issue raised in an application filed under Section 24 of 1955 Act. Although such an order technically may come under the definition of an interlocutory order, yet it has all the trappings of a ―judgment‖ as it decides the issue finally between the parties and since it is a judgment, it is appealable under Section 19(1) and would not be ousted from the jurisdiction under Section 19(1) of 1984 Act, merely on the basis of its being an interlocutory order, which it is not.‖
(ii) Aakansha Shrivastava Vs. Virendra Shrivastava & Anr. 2010 (3) MPLJ 151 (Division Bench judgement of the Madhya Pradesh High Court)
17. Interim maintenance had been granted under Section 125 Cr.P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397 (2) of the Cr.P.C. _____________________________________________________________________________________________ FAO No.388 of 2012 Page 17 of 25 and the pronouncement of the Supreme Court in Amarnath & Ors. Vs. State of Haryana & Ors. AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397 (2) of the Cr.P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125 (1) of the Cr.P.C.. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye Vs. State of Maharashtra AIR 1978 SC 47, where the Supreme Court 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 the 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. In V.C. Shukla Vs. State 1980 (2) SCR 380 the Supreme Court held that _____________________________________________________________________________________________ FAO No.388 of 2012 Page 18 of 25 the term ―interlocutory order‖ used in the Cr.P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final. (iii) Nasreen Begum Vs. The State of Jharkhand & Ors. 2006 Crl. L.J. 326 (Division Bench judgement of the Jharkhand High Court)
18. In a short order it was held that Section 19 (4) of the said Act make special provision of revision with regard to orders passed under Section 125 Cr.P.C. and, thus, revisions would lie.
19. We may add that the Gujarat and the Calcutta High Courts hold a similar view. [See Saili Halder Vs. Debaprasad Halder & State of West Bengal (2005) 3 CHN 87; Manojkumar Harilal Joshi Vs. Truptiben Manojkumar Joshi 2004 GLH (24) 676]
(iv) Sunil Hansraj Gupta Vs. Payal Sunil Gupta AIR 1991 Bom 423 (Division Bench judgement of the Bombay High Court)
20. The contrary view adopted by the Rajasthan, Karnataka and Orissa High Courts has found favour in this judgement of the Division Bench of the Bombay High Court, where there is an elaborate discussion for formulating the said view. In the facts and circumstances of this case, orders were passed both under Sections 24 & 26 of the HM Act by the Family Court. Maintenance was granted to the respondent wife and the minor children pendente lite. The provisions of Sections 24 to 28 of the HM Act were discussed along with Chapter 9 of the Cr.P.C. It was observed that upon a plain reading and in view of this objective of Section 24 of the HM Act, which is to protect the weaker spouse and particularly if it is a wife to protect her from vagrancy, an order under the said provision is for a limited period namely during the pendency of the substantive petition _____________________________________________________________________________________________ FAO No.388 of 2012 Page 19 of 25 under the HM Act and as such was in the nature of an interlocutory order. The Division Bench drew strength from the absence of any provision for appeal from an order passed under Section 24 of HM Act, under Section 28 (2) of the HM Act, which provides for appeals against orders passed under Sections 25 & 26 of the HM Act. It is further observed, not having provided for such an appeal under the HM Act the legislature could not have given the same under Section 19(1) of the said Act, more so keeping in view of the object and preamble of the said Act which is to provide speedy disposal of matrimonial disputes. The judgement in Shah Babulal Khimji case (supra) was distinguished by stating that the Supreme Court was examining the scope of the appeal under clause 15 of the Letters Patent, and it was in that context the expression ―judgement‖ was discussed and assigned a much wider meaning. It was observed that that the said Act gave its own description of the expression ―judgement‖ and as such having regard to its scheme and in particular Section 19 (1) thereof, it would not be appropriate to assign a much wider meaning to the word judgement and include interlocutory orders. Rejecting the contention that absence of revisionary recourse to interlocutory orders in Section 19 (1) of the said Act should be construed as giving right to appeal to a litigant against an order under Section 24 of the HM Act to vindicate his grievance, the Division Bench observed that the same would lead to an anomaly since the said Act provides for an appeal/revision only against final judgement/orders passed under HM Act and Chapter 9 of the Cr.P.C.
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 20 of 25 Conclusion:
21. On having examined the divergent views of different High Courts and on hearing learned counsel for the parties, we are inclined to adopt the view of the Uttarakhand, Allahabad, Madhya Pradesh, Gujarat & Calcutta High Courts while differing from the views of the Bombay, Rajasthan, Karnataka & Orissa High Courts. The reason for adopting such a course of action is the manner in which we have explained our view and understanding of the provisions of Section 19 of the said Act at the inception of the judgement. It is quite clear that qua an order or judgement of the Family Court the provision of appeal under Section 19 of the said Act would prevail, irrespective of what is contained in the Cr.P.C., CPC or any other law which would include the HM Act. The exception to the maintainability of an appeal is an interlocutory order, and, under sub-section (2) of Section 19, an order under Chapter 9 of the Cr.P.C. and a decree or order passed on consent. As noticed above, an order passed under a provision contained in Chapter 9 Cr.P.C. has to be dealt with in accordance with sub-sections (2) & (4) of Section 19 of the said Act.
22. The contra view plays down the non obstante clause contained in sub-section (1) of Section 19 of the said Act. What is important is that while the amendment to Section 28 (1) of the HM Act sought to remove the provision of appeal from an order, while confining the right to an appeal only qua a decree, sub-section (2) of Section 28 made provision for appeal from orders passed under Sections 25 & 26 of the HM Act, except an interim order, sub-section (1) of Section 19 of the said Act has used both expressions ―judgement‖ and ―order‖. The amendment to the HM Act in Section 28 was made in 1976, while the said Act was enacted in 1984, i.e., much later. The _____________________________________________________________________________________________ FAO No.388 of 2012 Page 21 of 25 legislature was, thus, conscious of the consequence of providing for appeals from orders which were not interlocutory orders. This judgement in Shah Babulal Khimji case (supra) had also been delivered before the enactment of the said Act which elucidated the law qua intermediate orders as distinct from interlocutory orders. Thus, certainly the scope of appeal under sub-section (1) of Section 19 of the said Act cannot take its colour from the scope of appeal under Section 28 of the HM Act, particularly, because of the non obstante clause contained in Section 19 (1) of the said Act.
23. We may also notice that the definition of ―judgement‖ as contained in Section 17 of the said Act only provides as what it should contain, i.e., a statement of case, the point for determination, the decision thereon and the reasons for such decision. Thus, the essentials of a judgement have been set out in Section 17 of the said Act. This, in no manner, takes away from the definition of ―judgement‖ as elucidated in Shah Babulal Khimji case (supra) which not only discussed the scope and ambit of an appeal under Section 15 of the Letters Patent, but has an elaborate discussion - as extracted aforesaid, qua what is understood by a final judgement, an interlocutory order and, in that context, what would be an intermediate order. Even if the definition of an intermediate order as explained in Shah Babulal Khimji case (supra) is seen, it would satisfy the test as laid down in Section 17 of the HM Act. In our view, the significance of use of both the expressions ―judgement‖ and ―order‖ under sub-section (1) of Section 19 of the said Act appears to have been lost while forming the contra view.
24. The view of the Uttarakhand High Court in Rahul Samrat Tandon case (supra) has lucidly explained the contours of the controversy and _____________________________________________________________________________________________ FAO No.388 of 2012 Page 22 of 25 the nature of an order under Section 24 or, for that matter, even under Sections 25 & 26 of the HM Act. No doubt, it is interim maintenance which is determined under Section 24 of the said Act but the proceedings are final in its nature till the decision on the main matter (except unless modified under Section 27 of the said Act). These are, thus, proceedings within proceedings which have the character of finality attached to them, especially as the same visit the parties with civil consequences. As to what are these civil consequences have again been set out in the opinion of the Allahabad High Court in Smt. Kiran Bala Srivastava case (supra). The denial of maintenance would greatly prejudice the ability of the disadvantaged spouse to contest proceedings while, on the other hand, inability to pay maintenance by the spouse has serious consequences, as it would result in striking out the defence/dismissal of the substantive cause. Orders passed under Sections 24, 25 or 26 of the HM Act fit the definition of an intermediate order, which may adversely affect valuable rights.
25. We have to also proceed to discuss not only the consequences of the aforesaid intermediate orders, but also orders which may be passed under Chapter 9 of the Cr.P.C. While specifically excluding from the ambit of appeal orders passed under Chapter 9 of the Cr.P.C. (Sections 125 to 128) as per sub-section (2) of Section 19 of the said Act, the remedy against such orders has been specifically provided thereafter under sub-section (4) of Section 19 of the said Act and, thus, clearly a criminal revision would be maintainable. However, there is an exception under sub-section (4) of Section 19 of the said Act in as much, as, interlocutory orders specifically stand excluded from the ambit of revision. We may also add here that sub-section _____________________________________________________________________________________________ FAO No.388 of 2012 Page 23 of 25 (5) of Section 19 of the said Act clearly bars any appeal or revision against an order of the Family Court unless specifically provided for under Section 19 of the said Act. We have to, thus, examine as to what would be the meaning of the expression interlocutory order in this context. There can be procedural orders passed, against which no revision would be maintainable. The analogy may be taken from the discussion qua the provision of Section 397 (2) of the Cr.P.C. in Aakansha Shrivastava case (supra) which in turn had relied upon the judgement of the Supreme Court in Amarnath & Ors. case (supra). These procedural orders, thus, would undoubtedly be interlocutory in nature. The issue arises from the second proviso to sub-section (1) of Section 125 Cr.P.C. which provides for grant of interim maintenance, i.e., whether criminal revision would be maintainable qua such determination. Once again, the same principle would apply, as qua determination of interim maintenance under Section 24 of the HM Act, since the nature of the order is such that it would be really an intermediate order affecting the vital rights of the parties. It can even result in consequence of civil imprisonment for violation. Thus, both kinds of orders under Section 125 Cr.P.C., i.e., interim maintenance and the final order would be amenable to the revisional jurisdiction.
26. We, thus, conclude as under:
i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of sub- section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said _____________________________________________________________________________________________ FAO No.388 of 2012 Page 24 of 25 Act.
ii. No appeal would lie under Section 19 (1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.
iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.
27. In view of the aforesaid, the present appeal is held not to be maintainable and is accordingly disposed of.
28. The matter be de-listed as an appeal, and be registered as a criminal revision.
29. The Registry to note the ratio of this judgement for purposes of listing of various kinds of matters in future.
30. List as per roster on 28.9.2012.
SANJAY KISHAN KAUL, J.
SEPTEMBER 13, 2012 VIPIN SANGHI, J. b'nesh
_____________________________________________________________________________________________ FAO No.388 of 2012 Page 25 of 25
Raj Kumar Makkad
(Expert) 27 February 2013
In Punjab & Haryana High Court, a Criminal Revision is to be filed in the given case.
