Rajasthan High Court - Jaipur
Amit Vyas vs Pramila Alias Ranjana on 27 May, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Review Petition No. 79/2018
In
D.B. Civil Misc. Appeal No. 3744/2016
Amit Vyas S/o Suresh Chand Vyas, R/o C-449, Mahesh Nagar,
Jaipur.
----Appellant/Non-Applicant
Versus
Pramila @ Ranjana W/o Amit Vyas, D/o Mahesh Chand Binda,
R/o House No. 13, Bharti Colony, Brahmpuri, Jaipur.
----Respondent
For Applicant-Review : Mr. Vijay Bahadur Srivastava
Petitioner-Appellant Advocate through Video
Conferencing.
Amicus Curiae : Mr. R.N. Mathur, Senior Advocate.
For Respondent : Mr. Vijay Singh Poonia Advocate with
Ms. Anubha Singh Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Order
27/05/2022
By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)
By Review Petition No. 79/2018, the review applicant (appellant in connected D.B. Civil Misc. Appeal No. 1709/2020, 1712/2020 and 1718/2020) has sought review of order dated 27.10.2017 passed in D.B. Civil Misc. Appeal No. 3744/2016, Amit Vyas Vs. Pramila Alias Ranjana, whereby, appeal directed against an order passed under Section 24 of the Hindu Marriage Act, 1955 (for short 'the Hindu Marriage Act'), granting interim maintenance to the respondent-wife, was held not maintainable under Section (Downloaded on 03/06/2022 at 08:10:18 PM) (2 of 13) [CRW-79/2018] 19 of the Family Courts Act, 1984 (for short 'the Family Courts Act').
2. Learned counsel for the review-applicant would argue that though earlier an order was passed on 27.10.2017, dismissing the appeal as not maintainable, it being against an order of grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act in favour of the respondent-wife, relying upon various decisions of different High Courts as also this Court, later on the issue with regard to maintainability of appeal under Section 19 of the Family Courts Act against an order of grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act has been resolved by Full Bench of this Court at principal seat at Jodhpur in this case of Kavita Vyas Vs. Deepak Dave, 2018(1) RLW 97 (Raj.). It is contended that the issue of maintainability of appeal against an order passed under Section 24 of the Hindu Marriage Act led to reference to Larger Bench. After examining the statutory scheme of the Family Courts Act, particularly the scope and ambit of Section 19 thereof and various judgments on the principle regarding interpretation of interlocutory order and finding support from the view taken by various High Courts, it has been finally concluded, while answering the reference, by declaring that the Division Bench of this Court in the case of Ajay Malik Vs. Smt. Shashi, 2011(2) RLW1615 (Raj.), does not lay down the correct view. The reference was answered by holding that an appeal shall lie under Section 19(1) of the Family Courts Act against an order passed by the Family Court under Section 24 of the Hindu Marriage Act. Therefore, the submission is that in view of the aforesaid decision, which is binding in nature, the order under review, which held that the appeal is not maintainable (Downloaded on 03/06/2022 at 08:10:18 PM) (3 of 13) [CRW-79/2018] against an order passed under Section 24 of the Hindu Marriage Act, be reviewed and recalled and the appeal filed by the review- applicant be restored to its original number for consideration on its own merits by holding that the appeal is maintainable under Section 19(1) of the Family Courts Act.
3. Per contra, learned counsel for the respondent contended that this Court in the case of Rahul Singh Shekhawat Vs. Smt. Rama Chauhan (D.B. Civil Misc. Appeal No. 2535/2018 decided on 09.11.2021), relying upon direct decision of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others (1978) 4 SCC 70, has held that the appeal against an order passed under Section 24 of the Hindu Marriage Act would not be maintainable. Argument of learned counsel for the respondent is that the law laid down by the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) is binding on all courts under Article 141 of the Constitution of India and, therefore, Full Bench judgment of this Court in the case of Kavita Vyas (supra), which has not taken into consideration the authoritative pronouncement of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra), has no precedential value.
4. Considering the complexity of the issue, this Court had requested Mr. R.N. Mathur, learned Senior Advocate to assist the Court in arriving at just decision.
Mr. R.N. Mathur, learned Senior Advocate made elaborate submissions with reference to plethora of decisions and contended that the issue regarding maintainability of an appeal under Section 19(1) of the Family Courts Act would depend upon whether the (Downloaded on 03/06/2022 at 08:10:18 PM) (4 of 13) [CRW-79/2018] order sought to be appealed against is a judgment or order, not being an interlocutory order of a Family Court. He would contend that the legislative intention behind Section 19, sub-section (1) of the Family Courts Act seeks to provide appeal only against the judgment and order, which is not interlocutory in nature, but seeks to determine the rights of the parties. Whether an order passed by the Family Court under Section 24 of the Hindu Marriage Act is interlocutory in nature or not, has been considered by the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra). He would argue that the controversy raised in that case was whether order of grant of maintenance passed under Section 24 of the Hindu Marriage Act determines the civil rights of the parties and for that reason bars claim of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). While deciding the issue, the Hon'ble Supreme Court not only examined the nature of proceedings and order that can be passed under Section 125 Cr.P.C., but also examined the nature of order that can be passed by the Family Court under Section 24 of the Hindu Marriage Act. The Hon'ble Supreme Court, it is contended, categorically held that the order passed under Section 24 of the Hindu Marriage Act does not decide any of the rights of the parties and cannot be said to be a comprehensive adjudication of civil rights and for that reason, such an order would not come in the way of seeking maintenance under Section 125 Cr.P.C. The issue as to whether order passed under Section 24 of the Hindu Marriage Act is an interlocutory order or determines the rights of the parties, was directly under consideration before the Hon'ble Supreme Court and consequently, the findings recorded by the Hon'ble Supreme Court constitute (Downloaded on 03/06/2022 at 08:10:18 PM) (5 of 13) [CRW-79/2018] ratio decidendi of the case and are binding on all Courts including High Courts under Article 141 of the Constitution of India.
Learned Amicus Curiae would further submit that though the Full Bench of this Court in the case of Kavita Vyas (supra) has taken the view that the order passed under Section 24 of the Hindu Marriage Act is not an interlocutory order as mentioned in Section 19, sub-section (1) of the Family Courts Act and on that basis a conclusion has been drawn that the nature of such order would be judgment because it decides matters of moment, which affects the valuable rights of the parties, the Hon'ble Supreme Court has already held otherwise with regard to the nature of order passed under Section 24 of the Hindu Marriage Act by clearly holding that such an order is only interlocutory in nature and cannot be said to be an order determining any of the rights of the parties. The argument is that the judgment of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) was not brought to the notice of the Full Bench of this Court. Therefore, the authoritative pronouncement of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) would be binding on all courts including High Courts under Article 141 of the Constitution of India and not the Full Bench judgment of this Court in the case of Kavita Vyas (supra). Consequently, it is argued that while deciding an issue with regard to maintainability of an appeal under Section 19, sub- section (1) of the Family Courts Act in the matter of challenge to an order passed under Section 24 of the Hindu Marriage Act, the Courts are to be guided by the law laid down by the Hon'ble Supreme Court in the case of Captain Ramesh Chander (Downloaded on 03/06/2022 at 08:10:18 PM) (6 of 13) [CRW-79/2018] Kaushal (supra) and not by the Full Bench judgment of this Court in the case of Kavita Vyas (supra).
5. We have given our anxious considerations to submissions made by learned counsel for the parties as also the submissions made by learned Senior Advocate as Amicus Curiae in the case and also perused the records and various judgments cited before us, particularly the judgment of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) and Full Bench judgment of this Court in the case of Kavita Vyas (supra).
6. Earlier, conflict in the view taken by Division Benches on the aspect of maintainability of an appeal filed against an order passed under Section 24 of the Hindu Marriage Act, under the scheme of Section 19, sub-section (1) of the Family Courts Act, led to reference of dispute to Larger Bench of this Court in Kavita Vyas (supra). Section 19 of the Family Courts Act reads as under:
"19. Appeal.--(1) Save as provided in sub- section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (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 (Downloaded on 03/06/2022 at 08:10:18 PM) (7 of 13) [CRW-79/2018] 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 preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
The statutory scheme that 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 was noticed by the Full Bench of this Court. As to what constitutes interlocutory order fell for consideration of the Full Bench of this Court in the case of Kavita Vyas (supra), which in para 10 of its order noted that the term 'interlocutory order' can be used in a statute sometimes in a restricted sense and sometimes in a broad or artistic sense. The touchstone for an order to be an interlocutory order and hence not appealable is to see whether the order is purely interim or temporary in nature and does not decide or touch the important rights or liabilities of the parties. Relying upon various judgments referred to in para 10, 14, 15 and 18 of the judgment in the case of Kavita Vyas (supra), the Full Bench of this Court came to a conclusion that an order under Section 24 of the Hindu Marriage Act would constitute a judgment because it decides matters of moment, which affects a valuable right of the parties. The expression 'some right or liability' is not restricted to the right in controversy in the main proceeding itself. It may also (Downloaded on 03/06/2022 at 08:10:18 PM) (8 of 13) [CRW-79/2018] be an order, which is of an ancillary nature, but is determinative of the rights and liabilities for the reason a spouse, who is not able to maintain himself/herself without maintenance being awarded, would be handicapped in litigating and per contra, if the maintenance awarded is beyond the means of the other spouse and the spouse cannot pay the same, the proceedings can be halted. On such analogy and reasoning, the Full Bench of this Court came to the conclusion that order of the Family Court deciding an application under Section 24 of the Hindu Marriage Act in the matter of grant of maintenance pendente lite cannot be said to be an interlocutory order as expressed in Section 19(1) of the Family Courts Act, but it is in the nature of a judgment and therefore, appeal under Section 19(1) of the Family Courts Act would be maintainable.
7. However, the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) had an occasion to examine the nature of order that can be passed under Section 24 of the Hindu Marriage Act.
On facts, that was a case where the husband Captain Ramesh Chander Kaushal filed a suit for decree of divorce against his wife Mrs. Veena Kaushal. In that suit, an application was filed by the wife praying for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act and an order was passed on her application.
Mrs. Veena Kaushal, however, also demanded maintenance by moving an application under Section 125 Cr.P.C. The matter came in revision before the High Court as the husband was aggrieved by allowing of wife's application for grant of maintenance filed under Section 125 Cr.P.C. The High Court (Downloaded on 03/06/2022 at 08:10:18 PM) (9 of 13) [CRW-79/2018] dismissed the revision and held the wife Mrs. Veena Kaushal entitled to maintenance under Section 125 Cr.P.C. Aggrieved by the said order, husband Captain Ramesh Chander Kaushal filed a petition for special leave to appeal before the Hon'ble Supreme Court. The bone of contention raised before the Hon'ble Supreme Court was that as the order passed under Section 24 of the Hindu Marriage Act by the Civil Court regarding quantum of maintenance vis-à-vis the civil rights of the parties decided civil rights of the parties and, therefore, such an order was required to be given weightage over and above the order passed in summary proceedings under Section 125 Cr.P.C. Thus, the issue, which directly arose for consideration before the Hon'ble Supreme Court, was whether the order passed under Section 24 of the Hindu Marriage Act was merely an interlocutory order without determining any rights of the parties or was in the nature of deciding and determining the rights of the parties. The Hon'ble Supreme Court had an occasion not only to consider the scope and ambit of proceedings and order that may be passed under Section 125 Cr.P.C., but also that of the order which can be passed by the Civil Court in the matter of dispute between the parties, on application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act. The Hon'ble Supreme Court referred to Section 24 of the Hindu Marriage Act and then proceeded to hold that the order passed under Section 24 of the Hindu Marriage Act regarding interim maintenance is not a final determination of civil rights by Civil Court, but is only an interim order. On such construction placed on the nature of order passed under Section 24 of the Hindu Marriage Act, the Hon'ble Supreme Court authoritatively pronounced that an order passed under Section 24 (Downloaded on 03/06/2022 at 08:10:18 PM) (10 of 13) [CRW-79/2018] of the Hindu Marriage Act does not constitute determination of civil rights by the Civil Court and is only an interlocutory order as there is no final determination. It is only an order pendente lite under Section 24 of the Hindu Marriage Act to pay the expenses of the proceedings and monthly during the proceeding such sum as having regard to the petitioner's own income and the income of the respondents, which may seem to the Court to be reasonable. Finally, it was concluded that direction issued under Section 24 of the Hindu Marriage Act is not comprehensive adjudication and it being interlocutory in nature, challenge to the proceedings and orders passed under Section 125 Cr.P.C. was repelled. The issue as raised before the Hon'ble Supreme Court and determination on the said issue is quoted as below:
"4. The husband sought divorce through the civil court and the wife claimed maintenance through the criminal court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at Rs. 400/- per mensem for the spouse as a provisional figure. Meanwhile, the Magistrate, on the evidence before him, ordered ex parte, monthly maintenance at Rs. 1000/- for the mother and two children together.
5. Sri S. T. Desai urged two points which merit reflection but meet with rejection. They are that (i) a civil court's determination of the quantum is entitled to serious weight and the criminal court, in its summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother and children, as a whole under Section 125 of the Code was Rs. 500/-, having regard to the text of the section.
6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance (Downloaded on 03/06/2022 at 08:10:18 PM) (11 of 13) [CRW-79/2018] Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay 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. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication."
8. There is considerable force in what has been argued by learned Amicus Curiae that the order passed by the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) holding that order passed under Section 24 of the Hindu Marriage Act is an interlocutory order as it does not finally determine any of the right of the parties, constitutes ratio decidendi of the case, applying the principles laid down by the Hon'ble Supreme Court in the cases of Commissioner of Income Tax Vs. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363, State of Gujarat & Another Vs. Manoharsinhji Pradyumansinhji Jadeja, (2013) 2 SCC 300 and Roger Shashoua and Others Vs. Mukesh Sharma and Others (2017) 14 SCC 722. Though, number of decisions on this principle were referred to by learned Amicus Curiae, we are mentioning a few of them.
In the case of Roger Shashoua and Others (supra), while explaining the principle of ratio decidendi, the Hon'ble Supreme Court considered and summarised the principles of "per incuriam"
and it has been held that a decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. It has also been held that a decision or judgment can also be per incuriam if it is not (Downloaded on 03/06/2022 at 08:10:18 PM) (12 of 13) [CRW-79/2018] possible to reconcile its ratio with that of a previously pronounced judgment of a co-euqal or larger Bench; or if the decision of a High Court is not in consonance with the views of the Supreme Court. In para 42 of the aforesaid judgment, the principle was explained as below:
"42. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, the Court referred to the Constitution Bench decision in Union of India v. Raghubir Singh, (1989) 2 SCC 754 and Chandra Prakash v. State of U.P., (2002) 4 SCC 234 and thereafter expressed its view thus: (Sundeep Kumar Case SCC p. 642, para 19) "19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."
(emphasis in original)"
9. Though, learned Amicus Curiae assisting the Court argued that as the judgment of the Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) holds the field declaring that an order passed under Section 24 of the Hindu Marriage Act is an interlocutory order and, therefore, it will not be appealable under Section 19(1) of the Family Courts Act, the view (Downloaded on 03/06/2022 at 08:10:18 PM) (13 of 13) [CRW-79/2018] of the Full Bench of this Court in the case of Kavita Vyas (supra), which was delivered without taking into consideration the aforesaid authoritative pronouncement of the Hon'ble Supreme Court, is per incuraim and, therefore, is not binding precedent.
10. Considering that the view in the case of Kavita Vyas (supra) has been expressed by a Bench larger than this Bench, we are inclined to refer the case for consideration of a Larger Bench under Rule 59 of the Rajasthan High Court Rules, 1952 on following question of law:
"Whether the view taken by the Full Bench of this Court in the case of Kavita Vyas Vs. Deepak Dave, 2018(1) RLW 97 (Raj.) holding that an order passed under Section 24 of the Hindu Marriage Act, 1955 is a judgment and not an interlocutory order and, therefore, appeal against such order is maintainable under Section 19, sub-section (1) of the Family Courts Act, 1984, is per incuriam as the judgment of Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others (1978) 4 SCC 70 holding that an order passed under Section 24 of the Hindu Marriage Act, 1955 is an interlocutory order, which does not determine any of the rights of the parties, was not considered by the Full Bench of this Court?"
11. Registry is directed to place the matter before Hon'ble the Chief Justice.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ MANOJ NARWANI/ (Downloaded on 03/06/2022 at 08:10:18 PM) Powered by TCPDF (www.tcpdf.org)