Madhya Pradesh High Court
Prafull Kumar vs Smt. Asha on 26 October, 2016
F.A.No.764/2015
26.10.2016
Shri Anil Kumar Jain, learned counsel for the appellant.
Shri Brajesh Garg, learned counsel for respondent.
Heard on I.A.No.6480/2016, an application for maintainability of appeal under Section 19 (4) & 5 of Family Courts Act.
2. Brief facts of the case are that against an order passed by the Family Court, Ratlam granting ' Pendenti-lite' maintenance @ of Rs.15,000/- per month to the respondent / wife has been challenged in this first appeal filed by the husband under Section 19 (4) of the Family Courts Act, 1984 on the ground that a judgment as it decides the question of maintainance during the pendency of the suit and, therefore, there is final adjudication so far as this question is concerned and an appeal lies against such an order.
3. Learned counsel for the appellant submits that 'Pendenti- lite' maintenance under Section 24 of the Hindu Marriage Act, 1955, raises controversy of the suit and hence the appeal lies against such an order.
4. To support the aforesaid, he has drawn our attention to full Bench decision of Rajesh Shukla V/s. Smt. Meena w/o. Rajesh Shukla & Anr. reported as 2005 (2) M.P.L.J] 483, full Bench decision of Allahabad High Court in the case of Kiran Bala Shrivastava V/s. Jai Prakash Srivastava reported as Laws (ALL)-2004-9-141, Division Bench decision of Gwalior Bench of this court in the case of Aakansha Shrivastava V/s. Virendra Shrivastava & Anr reported as 2010 (3) MPLJ 151, Division Bench decision of Uttarakhand High Court in the case of Rahul Samrat Tandon V/s. Smt. Neeru Tandon reported as AIR 2010 Uttarakhand 67, Division Bench decision of M.P. High Court in the case of Raghvendra Singh Choudhary V/s. Smt. Seema Bai reported as AIR 1989 M.P. 259 and to the decision of the Rajasthan High Court in the case of Sanjeev Kumar Pareek V/s. Shubh Laxmi Pareek reported as Laws (Raj)- 1988-12-13 and submitted that an order passed under Section 24 cannot be termed as interlocutory order. Para 15 and 17 of Rahul Samrat Tandon V/s. Smt. Neeru Tandon (supra) wherein the Division Bench of Uttarakhand High court has held that the order fixing maintenance pendenti lite in divorce proceeding is final order and therefore, a judgment, the order is appealable under Section 19 of the Family Courts Act following full Bench judgment of Allahabad High Court concluded as follows in para 15 and 17 reads as under :-
"15. This court is of a considered view that an order granted by the court below under section 24 of the Hindu marriage act fixing maintenance pendente lite in the divorce proceedings is an order having the quality of finality. It may have nothing to do with the ultimate order, which may be passed by the court in a matter relating to Section 13 of the Hindu Marriage Act. In fact, it is a separate proceeding within a proceeding. Hence, the order passed under Section 24 of the 1955 Act cannot simply be called an order of an interlocutory nature, as it is a judgment. "17. The present appeal has been filed by the husband challenging the order of maintenance pendente lite under section 24 of the Act of 1955, yet we are concerned with the larger impact of a judgment in such cases, where primarily the issue of maintenance is crucial to a party to a litigation. The Full Bench of Allahabad High Court, referred above, after discussing all the relevant law, including the law cited by the learned counsel for the respondent came to the conclusion that an appeal under Section 19 (1) of the Act of 1984 is maintainable against an order passed under Section 24 of the Act of 1955. We are in complete agreement with the observations of the Full Bench of the Allahabad High Court, and we feel that it is necessary that a broad meaning to the word "judgment" must be assigned and therefore we hold that the impugned order dated 20.3.2010 was in the nature of a "judgment" and the instant Special Appeal preferred by the appellant is maintainable, under Section 19 (1) of the Family Courts Act, 1984."
5. Per contra, Shri Brajesh Garg, learned counsel for the respondent has submitted that such an order is a interlocutory order and no appeal will lies against an interlocutory appeal. To support the contention he has placed reliance on the decision of Rajasthan High Court in the case of Mahesh Bhardwaj V/s. Smt. Smita Bhardwaj reported as AIR 1995 Rajasthan 47, decision of Patna High court in the case of Usha Kumari V/s. Principal Judge, Family Court & Ors . reported as AIR 1998 Patna 50 , decision of High court of Karnataka in the case of T.V. Satanarayana V/s. Subba Aruna Meenakshi reported as Laws (Kar)-1988-2-22, Bombay High court decision in the case of Sunil Hansraj Gupta V/s. Payal Sunil Gupta, reported as AIR 1991 Bombay 423, full Bench decision of High court of Orissa in the case of Swarna Prava Tripathy & Anr. V/s. Dibyansingha Tripathy & Anr. reported as AIR 1998 Orissa 173 and Division Bench decision of Indore Bench in the case of Aruna Choudhary V/s. Sudhakar Choudhary, reported as 2004 (2) MPLJ] 101 wherein the Division Bench has held that under Section 19(5) of the Act, the order of interim maintenance under Sections 24 and 25 of Hindu Marriage Act, would be treated as interlocutory order, therefore, against such an order neither appeal lies nor revision. The only remedy to an aggrieved party to such a interlocutory order to challenge the same by filing a writ petition under Article 227 of the Constitution of India.
6. The full Bench of this court in the case of Rajesh Shukla V/s. Smt. Meena w/o. Rajesh Shukla & Anr. (supra) wherein the question was whether against the order passed by the Family Court in an application under Section 125 of the Code while exercising jurisdiction under Chapter IX of the Code, revision under sub-section (4) of Section 19 of the Act should be registered as civil revision or criminal revision or revision petition (Family) ? In that case proceedings are arising out of the Criminal Procedure Code, 1974, thus essentially final order so passed will be revisable under Section 19(4) of the Act of criminal revision. The full Bench has held that the since power of Judicial Magistrate First Class have been exercised by the Family Court for deciding application under Section 125 of the Code, revision filed against the said order be registered as criminal revision and held that the correct law is not been laid down in the case of Aruna Choudhary V/s. Sudhakar Choudhary (supra).
7. On due consideration of the arguments of the learned counsel for the parties, so also the decision of the Division bench of this court in the case of Raghvendra Singh Choudhary V/s. Smt. Seema Bai (supra) wherein, the Division Bench has held that the order passed under Section 24 of the Hindu Marriage Act is judgment, as it decides the question of maintainability during the pendency of the suit and the same view has been taken by the Gwalior Bench in the case of Aakansha Shrivastava V/s. Virendra Shrivastava & Anr (supra), we reject the preliminary objection raised by the respondent regarding maintainability of appeal and held that the appeal filed against the order passed in a proceeding under Section 24 of the Hindu Marriage Act, 1955 cannot be considered as a interlocutory order. The order for interim maintenance affect the rights of the parties substantially and thus, it cannot be treated as interlocutory order. Appeal against the said order is maintainable.
8. For these reasons, I.A.No. 6480/2016, is hereby rejected.
(P.K.JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
SS/-