Chattisgarh High Court
Smt. Monica Sahu vs Puranlal Sarwa on 29 July, 2019
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No.95 of 2019
• Smt. Monica Sahu W/o Puranlal Sarwa Aged About 25 Years D/o Taran
Sahu, R/o Sector-1, Quarter No. 48b, Bhilai Tahsil And District Durg
Chhattisgarh. ---(Defendant)
---- Petitioner
Versus
• Puranlal Sarwa S/o Jhariyar Singh Sarwa Aged About 27 Years R/o Ward
No. 52, Near High School, Hanoda Road, Borsi Durg, Tahsil And District -
Durg Chhattisgarh. ---(Plaintiff)
---- Respondent
For Appellant : Ms. Aditi Singhvi, Advocate
For Respondent : Shri Sanjay Kumar Agrawal, Advocate
D.B.: Hon'ble Shri Justice Manindra Mohan Shrivastava
Hon'ble Smt. Justice Vimla Singh Kapoor
Order on Board
Per Manindra Mohan Shrivastava, J.
29/07/2019
1. This appeal is directed against the impugned order dated 29-01-2019, by which, the Family Court has decided the application under Section 24 of the Hindu Marriage Act, 1955 in the matter of grant of maintenance pendente lite and litigation expenses.
2. Facing with objection to maintainability of this appeal in view of the judgment of this Court in the case of Anil Mishra vs. Sakshi Mishra1, learned counsel for the appellant argued that notwithstanding order impugned passed under Section 24 of the Hindu Marriage Act, 1955, it deals with the party's right to get interim maintenance during the pendency of the proceedings, which itself constitutes determination of right independent of the main proceedings between 1 2017 (3) CGLJ 133 2 the parties. Therefore, it is argued that the order partakes nature of interim judgment. Relying upon the decision of Full Bench of Allahabad High Court in the case of Kiran Bala Shrivastava vs. Jai Prakash Shrivastava 2 as also of Rajasthan High Court in the case of Kavita Vyas vs. Deepak Dave3, learned counsel for the appellant would argue that in these two decisions, it has been held that an order under Section 24 of the Hindu Marriage Act is in the nature of interim judgment, and therefore, the appeal would lie against such order, under Section 19 of the Family Court Act.
3. On the other hand, learned counsel for the respondent would submit that the Division Bench of this Court in the case of Anil Mishra (supra), in order to come to the conclusion that the order passed under Section 24 of the Hindu Marriage Act is not in the nature of interim judgment or deciding any issue between the parties, has relied upon the decision of the Supreme Court in the case of Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal and others4. He also submits that in addition to the judgment of this Court in the case of Anil Mishra (supra), relying upon decision of the Supreme Court, Full Bench decisions of Orrisa High Court in the case of Swarna Prava Tripathy and another v. Dibyasingha Tripathy and another 5 and Patna High Court in the case of Neelam Kumari Sinha vs. Shree Prashant Kumar6 as also Bombay High Court in the case of Sunil Hansraj Gupta vs. Payal Sunil Gupta7, have taken the similar view that the appeal against the order under Section 24 of the Hindu Marriage Act, 1955 will not lie under Section 19 of the Family Court Act.
4. Having heard learned counsel for the parties, we find that the view taken 2 decided on 10-09-2004 in FA No.17/2002 3 2018 SCC Online Raj 1601 4 (1978) 4 SCC 70 5 1998 AIR (Ori) 173 6 2010 AIR (Pat) 184 7 1991 AIR (Bom) 423 3 by this Court in the case of Anil Mishra (supra) as also by Orissa High Court, Patna High Court and Bombay High Court in its decisions, is essentially based on what was considered by the Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) and the Division Bench of this Court has placed heavy reliance upon the observations made in the aforesaid decision, which we consider apposite to reproduce hereinbelow:-
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 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."
We, thus find that the divergence of the opinion stands resolved by the judgment of the Supreme Court in the case of Captain Ramesh Chander Kaushal (supra).
5. Though, learned counsel for the appellant would fervently urge before us that in the case of Captain Ramesh Chander Kaushal (supra), it was not directly an issue for consideration as to what is the nature of an order passed under Section 24 of the Hindu Marriage Act, 1955, this argument needs to be rejected at the threshold, because the Supreme Court had an occasion to clearly state as to what is the nature of order passed under Section 24 of the Hindu Marriage Act, 1955, in the aforesaid decision.
6. Therefore, we are not inclined to take any view, other than what has already been held by this Court in the case of Anil Mishra (supra). 4
7. Accordingly, this appeal is held to be not maintainable and dismissed, though, with liberty to take appropriate remedy as may be available to the appellant under the law. Certified copy of the impugned order be returned, after retaining photocopy of the same.
SD/- SD/-
(Manindra Mohan Shrivastava) (Vimla Singh Kapoor )
Judge Judge
Tumane