Tripura High Court
Smt. Sarmistha Dewan Ghosh vs Shri Milanmoy Dewan on 17 February, 2021
Page 1 of 36
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev. P. No.24 of 2020
Smt. Sarmistha Dewan Ghosh
wife of Milanmoy Dewan
c/o Satyendranath Ghosh
Krishnanagar Main Road
P.S. : West Agartala
P.O : Agartala
District-West Tripura, PIN: 799001
.............Petitioner(s)
Versus
Shri Milanmoy Dewan
Son of late Nripendra Lal Dewan
Quarter No. C/53: ONGC, South Colony
South Badharghat, P.O : ONGC
Pin: 799014
.........Respondent(s)
For the Appellant(s) : Mr.P.Roy Barman, Adv.
Mr.K.Nath, Adv.
For the Respondent(s) : Mr.S.Sarkar, PP
Date of hearing : 17.12.2020
Date of delivery of
Judgment & order : 17.02.2020
Whether fit for reporting : Yes No
BEFORE
HON'BLE MR.JSUTICE S.G.CHATTOPADHYAY
JUDGMENT
[1] The petitioner ('the wife' hereunder) has challenged the order dated 07.02.2020 delivered in case No. Misc (Int.) 648 of 2019 by Judge, Family Court, Agartala refusing to grant interim maintenance allowance to her in a pending proceeding under Section Crl.Rev.P. 24/2020 Page 2 of 36 125 of the Code of Criminal Procedure, 1973(Cr.P.C hereunder).
[2] Brief facts of the case are as under:
The wife filed an application under Section 125 Cr.P.C. against her husband claiming monthly maintenance allowance of a sum of ₹1(one)Lakh. The wife stated in her application that her marriage with the respondent was registered under the Special Marriage Act, 1954 on 17.10.2003. While she married the respondent, she had a daughter from her past marriage who was 19 years old at the time of her marriage with the respondent. Her marriage with her past husband was dissolved by a decree of divorce granted by the District Judge, West Tripura on 17.01.2001. Similarly, the respondent husband also had a daughter from his first wife who died in 2001 and after the death of his first wife, respondent married the present petitioner.
No child was born to them from their present marriage. [3] The wife has brought several allegations of cruelty against her husband. It is alleged by her that after marriage they lived peacefully for about 2 years. Thereafter the troubles began. According to the wife, after her marriage with the respondent, she kept her Crl.Rev.P. 24/2020 Page 3 of 36 daughter with her parents for about 3 years. Thereafter, she brought her daughter back to her with the consent of her respondent husband. The respondent was then an assistant engineer in ONGC who was later elevated to the post of chief engineer in ONGC, in its Tripura Asset. In 2008 the husband was transferred to Mumbai for off-shore duty. During his off duty period for 14 days he used to visit his wife and children at Agartala and the wife never neglected in taking care of her husband and his daughter. Her husband was a Buddhist by religion and she was a Hindu. He always used to interfere with her religious practices and developed a habit of mocking her on this issue which hurt the petitioner. Their food habits were also different. The husband was fond of dry fish and pork whereas the wife did not like such food. She was not also allowed to cook or bring food of her choice. There was, therefore, no alternative for her but to starve or to bring food from her parents. Even adequate accommodation was not provided to her at her matrimonial home for living. It has been alleged by the wife that she was treated by her husband like a domestic helper and in many other ways her husband tortured her psychologically. She was also Crl.Rev.P. 24/2020 Page 4 of 36 subjected to physical assault by her husband. Following an incident in September, 2016, the respondent slapped the wife in front of her daughter. When the agitated daughter raised her protest, she was also beaten by the husband. The wife was also economically abused by her respondent husband. Whenever she demanded money from her husband to meet her needs, he used to ask her to bring money from her NRI brother. The wife has pointed out to many other incidents of torture and atrocities mated out to her by her husband. Ultimately, on 26.07.2019 her husband had driven her out of his home after committing torture on her. Since then, she has been living with her parents. As stated by the wife, monthly salary of her husband is around 3 lakhs. In addition he gets monthly rent of an amount of ₹22,000/-for renting one 3BHK flat in Rosedale apartment situated at Lichubagan, Agartala. She has, therefore, claimed ₹1 Lakh per month for her maintenance by filing an application under Section 125, Cr.P.C.
Crl.Rev.P. 24/2020 Page 5 of 36 [4] She also filed a separate application claiming interim maintenance allowance @₹1 lakh per month during the pendency of the proceedings under Section 125 Cr.P.C. In her petition for interim maintenance, she has stated that her husband has deserted her for no fault of her and she is completely unable to maintain herself. Her husband on the other hand, despite being a salaried employee and having a monthly salary of more than 3 lakhs has been neglecting her maintenance. She has, therefore, claimed interim maintenance allowance, as stated above.
[5] The respondent husband submitted a written objection against her claim for maintenance allowance under Section 125 Cr.P.C. He also submitted a separate written objection against her claim for interim maintenance allowance. In parawise reply against the main claim of his wife, the respondent husband has denied all allegations of his wife. He, however, admitted his marriage with the petitioner. According to him she could not tolerate his daughter from his first wife. She always treated her with cruelty and she used to assault her physically every now and then. Immediately after her marriage with him, she destroyed all photographs of him with his past wife which hurt him. As a result of Crl.Rev.P. 24/2020 Page 6 of 36 her ill treatment with his daughter, discords developed between the husband and wife and their relationship got strained. He denied that he drove out his wife from home. According to him his wife voluntarily left his house on 26.07.2019 and lodged a false and fabricated complaint against him at Amtali Police Station. He has also denied to have a monthly salary of ₹3 lakhs. Moreover, according to him, he is paying life insurance premium of an amount of ₹98,159/- annually for his wife besides paying quarterly premium of ₹3062/- for another life insurance policy of her. He has also stated that apart from paying the premium of the insurance policies of his wife, he is also paying Rs.5 lakhs per year from his salary towards the fees of his daughter who is pursuing her MBBS course in Tripura Medical College. The husband has, therefore, expressed his inability to pay the monthly maintenance allowance claimed by his wife. Moreover, according to him, the wife is not entitled to such maintenance allowance in view of the provision of sub-section (4) of Section 125 Cr.P.C. because she has been living separately without sufficient reason.
[6] As stated, the husband filed separate reply against the claim of his wife for interim maintenance Crl.Rev.P. 24/2020 Page 7 of 36 where he has replicated the same grounds opposing the claim of his wife for interim maintenance. He has reiterated that since the wife has left her matrimonial home on her own volition and living separately without any sufficient reason, she is not entitled to any amount of interim maintenance allowance during the pendency of her petition under Section 125 Cr.P.C. [7] The Judge, Family Court, Agartala after hearing the parties declined to grant interim maintenance to the wife and rejected her application claiming such relief. The relevant extract of his findings are as under:
"I have perused the petition for interim maintenance and also considered the submission of both sides. In the instant case this court has also taken an endeavour to resolve the disputes in between both the parties through reconciliation but failed. On perusal of the case record, this court finds no documents showing that the petitioner has made any complain against the OP due to the alleged torture on 26.07.2019. She has also failed to produce any document showing that she was attended doctor due to sustaining injury as a result of alleged torture. Therefore considering the entire facts and circumstances, the petitioner prima facie has failed to establish any cogent ground for withdrawing the petitioner from the house of the OP on 26.07.2019 for which she has entitled to get maintenance from the OP. Moreover, it is an admitted fact that the petitioner is now getting an amount of Rs.8000/- per month from her private job. Therefore, Crl.Rev.P. 24/2020 Page 8 of 36 considering the entire facts and circumstances, the petitioner in this case prima facie failed to establish that she is compelled to leave her matrimonial home due to torture of her husband rather from the statement of the OP, it is found that she is voluntarily withdrawn herself from the house of the OP on 27.09.2019 after causing quarrel with him. Hence at this stage this court has failed to pass any order of interim maintenance in favour of the petitioner as the petitioner has failed to substantiate cogent ground to get interim maintenance from the OP at this stage. Accordingly, the instant petition is dismissed but no order as to cost."
[8] I have heard Mr.P.Roy Barman, learned counsel appearing along with Mr.K.Nath, Advocate for the wife as well as Mr.S.Sarkar, learned counsel appearing for the respondent.
[9] It is argued by Mr.Roy Barman, leaned counsel of the petitioner that the impugned order of the Family Court demonstrates that the law with regard to interim maintenance has been interpreted properly as a result of which interim maintenance has been denied to the wife. According to Mr.Roy Barman, learned counsel, interim maintenance can be allowed to the wife on the very day of filing of her petition under Section 125 Cr.P.C without even hearing the other side and going into the merits of the case. It is submitted by Mr.Roy Barman, learned counsel that the learned trial court remarked on the merits of the case before conducting Crl.Rev.P. 24/2020 Page 9 of 36 trial and recording the evidence of the parties which was absolutely incorrect and improper. It is further argued by Mr.Roy Barman, learned counsel, that purpose of granting interim maintenance allowance is to save the petitioner from destitution and enable her to establish her claim in the court of law by prosecuting her case. It is contended by learned counsel that despite adequate materials being made available before the family court about the inability of the petitioner to maintain herself and the neglect of her husband towards her maintenance inspite of having ability, the Family Court has illegally denied interim maintenance to her. It is argued by Mr.Roy Barman, learned counsel, that if the order of the Family Court is allowed to continue it will cause serious hardship and grave injustice to the petitioner wife and therefore, the impugned order warrants interference in revision to prevent miscarriage of justice. It is finally argued by Mr.Roy Barman that there is no bar to interfere with an interim order passed under Section 125 Cr.P.C. in criminal revision. In support of his contention Mr. Roy Barman has referred to a decision of the High Court of Patna in Dilip Kumar Vs. State of Bihar and Ors. reported Crl.Rev.P. 24/2020 Page 10 of 36 in MANU/BG/1622/ 2019 wherein the Patna High Court has held as follows:
"23. From bare perusal of Section 19(2) of the Act, it is obvious that no appeal shall lie from an order passed under Chapter IX of Code of Criminal Procedure, 1973 but Section 19(4) of the Act gives power to High Court to 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 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. Therefore, it is obvious from perusal of Section 19(4) of the Family Courts Act that revision petition can be filed against the order of Family Court passed under Chapter IX of the Code of Criminal Procedure, 1973 subject to condition that the order of Family Court should not be an interlocutory order. Now, question arises as to whether order passed by Family Court under second proviso of Section 125 of the Code of Criminal Procedure is an interlocutory order or not.
24. The word 'interlocutory order' has not been defined either in Family Courts Act, 1984 or in the Code of Criminal Procedure, 1973 but as per Black's Law Dictionary (1990) P. 814, the word "interim" means "for the time being", "in the meantime", "meanwhile", "temporary", "provisional", "not final", "intervening". The word "interim" means "intervening" when it is used as a noun and when used as an adjective it means "temporary" or "provisional". As per Advanced Law Lexicon (2005) Vol. II, " interlocutory"
means, not that which decides the cause, but that which only settles some intervening matter relating to the cause; a decree or judgment given provisionally Crl.Rev.P. 24/2020 Page 11 of 36 during the course of legal action. The word 'interlocutory order' has also been defined in Halsbury's Laws of England, Volume 22 of the third edition at page 742 and para 1606 of the same reads as under:
"1606. Final or interlocutory. No definition is given in the Judicature Acts, or the orders and rules thereunder, of the terms "final" or "Interlocutory" and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required."
25. From comparative reading of the above stated definitions, I find that the definition of word 'interlocutory', given in Black's Law dictionary, is not explanatory in nature whereas an elaborate explanation has been given in Halsbury's Laws of England. The perusal of definition given in Halsbury's Laws of England goes to show that an order which substantially affects rights of an accused or party or decides certain rights of the parties during pendency, proceeding is not an interlocutory order. Furthermore, the meaning of interlocutory should be considered in relation to the particular purpose for which it is required."
[10] Mr.S.Sarkar, learned counsel appearing for the respondent on the other hand vehemently opposes the contentions raised on behalf of the wife. According to Mr.Sarkar, learned counsel in view of the bar provided under sub-section (2) of Section 397 Cr.P.C, revision does not lie against the impugned order which is an interlocutory order passed in a proceeding under Crl.Rev.P. 24/2020 Page 12 of 36 Section 125 Cr.P.C. In support of his contention Mr.Sarkar has referred to the judgment dated 31.08.2018 passed by High Court of Rajasthan in S.B. Criminal Revision No.483 of 2018 [Anshul Kulshreshtha vs. Smt.Swarnima Kulshreshtha] wherein the Rajasthan High Court has viewed that interim maintenance order in a proceeding under Section 125 Cr.P.C. is an interlocutory order which does not decide the rights and liabilities finally so as to give rights to the parties to move a revision petition. Mr.Sarkar has also placed reliance on the decision of the Orissa High Court in Swarna Prava Tripathy vs. Dibyasingha Tripathy reported in 1998 AIR (Ori)173 whereby the Orissa High Court has held that no revision is maintainable from an interlocutory order in a proceeding under chapter 9 Cr.P.C. in view of the bar provided under Section 19(4) of the Family Courts Act, 1984. In support of his contention Mr.Sarkar, learned counsel has also placed reliance on the decision dated 17.08.2005 of the Jharkhand High Court in Uttam Kumar Choubey vs. Kiran Devi @ Kumari Kiran And Ors. reported in 2005(4)JCR 406 Jhr wherein Jahrkhand High Court has held that against an interlocutory order passed in a proceeding under Section 125 Cr.P.C. no revision is maintainable in view Crl.Rev.P. 24/2020 Page 13 of 36 of the bar provided under Section 397(2) Crl.P.C. Observation of the High Court in paragraph 11 of the judgment is as follows:
"11. From the above discussions, it appears that Chapter IX of the Code of Criminal Procedure contains summary and quick remedy for securing some reasonable amount by way of maintenance to protect to destitute wife from starvation. Section 125, Cr.P.C does not provide for full and final determination of the personal rights of the parties. The jurisdiction conferred by that provision is more in the nature of preventive, rather than a remedial jurisdiction. It is certainly not punitive one. The Court is empowered either to modify or even to cancel the order passed by him earlier. Therefore, granting interim maintenance, pending proceeding under Section 125, Cr. P.C can either be modified or even be cancelled at subsequent stage and, therefore, it cannot be said that the interim order of maintenance is a final order.
According, it is held that the grant of interim maintenance pending proceeding under Section 125, Cr.P.C is an interlocutory order and thus no revision is maintainable in view of bar under Section 397(2) of the Cr. P.C."
[11] Reliance has also been placed on the decision of the Rajasthan High Court in Minor Anu@Atul vs. Ratan Lal Sharma reported in 1993 Legal Eagle (RAJ)620 wherein the Rajasthan High Court has held that order granting interim maintenance allowance is an interlocutory order within the meaning of sub-section (1) of Section 19 of Family Courts Act, 1984 and therefore, revision against such interlocutory order is Crl.Rev.P. 24/2020 Page 14 of 36 barred under sub-section (4) of Section 19 of the Family Courts Act. Mr. Sarkar, learned counsel has also referred to the decision of the Rajasthan High Court in Chhotu Singh vs. Basanti & Ors. reported in 2002 Legal Eagle (RAJ)80 wherein Rajasthan High Court has held that in view of the bar created under sub-section (4) of Section 19 of the Family Courts Act, 1984 no revision lies against an interlocutory order passed in a proceeding under Section 125 Cr.P.C.
[12] Mr. Sarkar learned counsel appearing for the respondent husband, therefore, urges the court for dismissing the revision petition.
[13] The core issue which emerges for consideration in this case is as follows:
(i) Whether revision lies against an interim order passed by the family court declining to grant interim maintenance to the wife in a proceeding under Section 125 Cr.P.C in view of the bar provided under Section 397(2), Cr.P.C and Section 19(4) of the Family Courts Act, 1984.
[14] It may be recalled that learned counsel appearing for the wife has argued that an interim order passed under Section 125 Cr.P.C is not an interlocutory Crl.Rev.P. 24/2020 Page 15 of 36 order, rather this is an intermediate order against which appeal or revision can be entertained. Learned counsel has placed reliance on the decision of the Patna High Court in Dilip Kumar(supra) in support of his contention.
[15] Mr.S.Sarkar, learned counsel appearing for the respondent on the other hand has relied on the decision of various high courts to support his contention that no appeal or revision lies against such interim order passed in a proceeding under Section 125 Cr.P.C. because such order is purely an interlocutory order and Section 397(2) and Section 19(4) of the Family Courts Act, 1984 have created bar in entertaining revision against such order. Therefore, there exist divergent views on the issue.
[16] Before further discussion, it would be apposite to refer to the relevant legal provisions at this juncture. Section 19 of the Family Courts Act, 1984 which provides for appeals and revisions against judgments and orders passed by the Family Court 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 Crl.Rev.P. 24/2020 Page 16 of 36 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. -(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 2[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.2
[(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.] 2 [(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 Crl.Rev.P. 24/2020 Page 17 of 36 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.] 3 [(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. "
[17] Section 397 Cr.P.C which empowers the high court and sessions courts to call for records of proceedings pending before any inferior court to exercise powers of revision provides as follows:
"397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
Crl.Rev.P. 24/2020 Page 18 of 36 (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
[18] It appears from above that Section 19(4) of the Family Courts Act provides that the high court may on its own motion or otherwise call for and examine the record of any proceeding from the family court to satisfy itself as to the correctness, legality or propriety of an order passed under chapter IX, Cr.P.C, not being an interlocutory order. Chapter IX Cr.P.C deals with the matters pertaining to maintenance of wives, children and parents under Section 125 to 128 Cr.P.C. Sub- section (4) of Section 19 of the Family Courts Act has thus provided a bar in entertaining revision against an interlocutory order passed under any of the provisions from Sections 125 to Section 128 under chapter IX, Cr.P.C.
[19] Similarly, sub-section (2) of Section 397 Cr.P.C specifically provided that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in appeal, enquiry, trial or other proceeding. Thus from a plain reading of sub-section (2) of Section 397 Cr.P.C, it appears that revision against interlocutory order passed Crl.Rev.P. 24/2020 Page 19 of 36 in any appeal, enquiry, trial or other proceeding is barred under sub-section (2) of Section 397 Cr.P.C. [20] Now, the question which needs to be examined is whether an order granting or refusing interim maintenance to the wife in a proceeding under Section 125, Cr.P.C. is an interlocutory order for the purpose of Section 19(4) of the Family Courts Act or Section 397(2), Cr.P.C.
[21] What is the meaning of the expressions "final" and "interlocutory" came up for consideration before the Apex Court, though in a different context, in SMT PARMESHWARI DEVI Versus THE STATE AND ANOTHER reported in (1977) 1 SCC 169 wherein the Apex Court held that no single test can be applied to determine whether an order is final or interlocutory. In this context the Apex Court observed as under:
"8. A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat. The controversy there centred round the meaning of article 134(1) (c) of the Constitution and the Court examined the meaning of the words "final" and "interlocutory". It was held that the meaning "had to be considered separately in relation to the particular purpose for which it is required" to be interpreted. No single test can be applied to determine whether an order is final or interlocutory. Then it has been held by this Court in that case as follows :Crl.Rev.P. 24/2020 Page 20 of 36
An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.
It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed. As has been shown, the order of the magistrate dated August 8, 1974 was not according to law and it adversely affected the appellant, who was not a party to the enquiry or trial, as it was solely directed against her. As is obvious, she could have no opportunity to challenge it after the making of the final order, and such a belated challenge would have been purposeless for it would have given her no relief. So in so far as the appellant is concerned, the order of the magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of sub-section (2) of section 397 against it."
[22] Similar issue fell for consideration of the Apex Court in Amarnath and Ors. Vs. State of Haryana and another reported in (1977) 4 SCC 137 wherein the Apex Court examined the connotation of the term "interlocutory order" and observed as under:
"6......It seems to, us that the term "interlocutory order" in s. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s.Crl.Rev.P. 24/2020 Page 21 of 36
397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. outside the purview of the revisional jurisdiction of the High Court."
[23] The distinction bewteen interlocutory and final order was also discussed by the Apex Court in the case of V.C.SUKLA VS. STATE THROUGH CBI reported in (1980) Supp. SCC 92. While drawing the line of distinction between final order and interlocutory order, the Apex Court in the said judgment vide paragraph 62 has observed as follows:
"62.The aforesaid view taken by this Court in Mohan Lal Magan Lal is therefore significant, for it does not approve of the view taken in Salaman12 case and lays down at least two clear propositions of law: (i) an order may be final for one purpose and interlocutory for another, and
(ii) it may be final as to part and interlocutory as to part, and that the meaning of the two words has to be determined in relation to the particular purpose for which it is required to be given. As I shall show, both these propositions are significant in this case for while an order framing the charge against the accused does not conclude his trial, it is "final" in the sense that his right to an order of discharge is refused to him once for all and he is put on trial."Crl.Rev.P. 24/2020 Page 22 of 36
The Apex Court in the said judgment further held that an order which substantially affects the rights of the accused is not an interlocutory order. The observation of the Apex Court in this regard is as under:
"67.This Court has therefore taken the view in Amar Nath case that the expression "interlocutory order" has been used in s. 397(2) of the Code in a restricted sense, that it "denotes" orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and that any order which substantially affects the rights of the accused is not an interlocutory order. On that reasoning, an order for the framing of a charge against the accused in this case cannot be said to be an interlocutory order."
[24] In the said judgment in V.C.Shukla(supra), the Apex Court has succinctly held that the expression "interlocutory" has been used in Section 397(2) Cr.P.C in a very restricted sense and the object of sub- section(1) of Section 397 Cr.P.C. to provide relief to the aggrieved party where it is deserved, unless, the order complained of is not an interlocutory order. [25] The Bombay High Court in Hashmukh J. Jhaveri vs. Shella Dadlani and another reported in (1981)Cri.LJ 958 keeping in view the principles of law laid down by the Apex Court in various judicial Crl.Rev.P. 24/2020 Page 23 of 36 pronouncements and the object of the provisions of Section 397(2) Cr.P.C observed as follows:
"24. Bearing in mind the guidelines enunciated in the ratio of various judicial pronouncements, the scheme of the Code in that behalf, the object for enacting or incorporating the said provision and the basic concept of the term in question, the following propositions would logically follow. -
(1) That the term "interlocutory order" has been used in a restricted sense and not in a broad or realistic sense.
(2) That it merely denotes an order of purely interim or temporary nature. The emphasis in this category is on the word "purely", which would again high-light the concept that the nature of the order must be pure and simple, temporary or interim in character and ostensibly deceptive appearance of a temporary character should not be confused with the real and outright temporary nature.
(3) Such orders pertaining to some matters in the proceeding which merely and purely assume the character of steps-in-aid of the proceeding can be embraced by the said terminology, which again affords a pointer about the nature and categories of the orders that are purely temporary or interim without actually affecting or even touching substantially any right or material aspect of the proceeding.
(4) Though a stamp of finality to the proceeding or termination of the proceeding may be quite a relevant and important consideration, yet it is not a sole criterion of the test in that behalf.
(5) So also, the potential capacity to terminate proceeding or to give it a label of finality is also not the only and conclusive criterion though it by itself is a relevant feature.
(6) Therefore, the fact that the main proceeding is kept alive that does not ipso Crl.Rev.P. 24/2020 Page 24 of 36 facto give a stamp to several such orders as "interlocutory order".
(7) Consequently it is not permissible to equate the expression "interlocutory order" as invariably being the converse of the term "final order".
(8) An order of moment would obviously be lifted out of the sweep of the said terminology. (9) Irrespective of the order bearing stamp of finality, there may be an intervening stage which can be called as 'intermediate stage' at which an order may be passed which in turn may be called as 'intermediate order', which neither gives the finality to the proceeding nor is purely interim or temporary and as such is not an interlocutory order, but would fall in between and in certain cases such order can be said to be not interlocutory.
(10) An order which -
(a) decides; or
(b) even touches the important rights or liabilities of the parties; cannot be said to be interlocutory.
(11) An order which -
(a) substantially affects the rights of the parties; or
(b) decides certain rights of the parties; cannot be termed as 'interlocutory'.
(12) So also, an order which -
(a) adjudicates; or
(b) even affects -
(i) either the rights of the parties;
(ii) even any particular aspect of the trial or the proceeding cannot be also termed as 'interlocutory order'."
[26] The High Court of Uttarakhand in Ashu Dhiman vs. Smt. Jyoti Dhiman [Crl. Misc. Application(C- Crl.Rev.P. 24/2020 Page 25 of 36
482)No.434 of 2018] decided on 15.11.2018 examined the issue as to whether an application under Section 482 Cr.P.C. or a criminal revision petition under Section 397, Cr.P.C is maintainable against rejection of maintenance allowance by the trial court. While deciding the issue, Uttarakhand High Court examined the statement of objects and reasons of the Family Courts Act and the purpose of maintenance provided under Section 125 Cr.P.C. including interim maintenance and after referring to the various judgments of the Apex Court on this issue finally held that an order rejecting or allowing an application for maintenance in pending proceedings is not an interlocutory order because it adjudicates the rights of the parties to some extent and as such revision under Section 397 Cr.P.C against such order is maintainable. It would be apposite to reproduce paragraph 14 of the said judgment of Uttarakhand High Court which is as under:
"14. The Hon'ble Apex Court has interpreted and elaborately discussed the definition of interlocutory order in the case of Mohit alias Sonu and another vs State of Uttar Pradesh and another, (2013) 7 SCC 789, wherein it has been held that an order which substantially affects rights of an accused or party or decides certain rights of the parties during pending proceedings is not an Crl.Rev.P. 24/2020 Page 26 of 36 interlocutory order. The relevant paragraphs of the said judgment are excerpted hereunder:
"25. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case, before the trial court the complainant's application under Section 319 of Cr.P.C. was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath's case, (1977) 4 SCC 137, an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C.
28. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.
32. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to.""Crl.Rev.P. 24/2020 Page 27 of 36
[27] The Allahabad High Court in Liaqat Hussain vs. Jainab Parveen and Another reported in 2020 SCC Online All 1530 has also held that an application for interim maintenance under Section 125 Cr.P.C. is a separate proceeding to be disposed of while final order is pending and such order of interim maintenance would be intermediate or quasi judicial order affecting the vital rights of the parties and therefore, criminal revision under Section 19(4) of the Family Courts Act is entertainable. The observation of the court is as under:
"15. Thus the remedy against the order passed by the Family Court under Section 125 of Chapter IX of Cr.P.C. has been specifically provided under Section 19(4) of the Act, which confers powers on the High Court to examine the correctness, legality or propriety to the order passed by the Family Court. When the Family Court is dealing with the proceeding under Chapter IX of Cr.P.C. exercisable by the Magistrate of the first class in such contingency criminal revision would be maintainable against both interim as well as final order passed under Section 125 Cr.P.C.
16.An order which substantially affects the rights and decides certain rights of the parties, it has been held not to be an interlocutory order so as to bar revision in view of the pronouncement by the Hon'ble Apex Court in Amarnath and others Vs. State of Haryana and others, AIR 1977 SC 2185.Crl.Rev.P. 24/2020 Page 28 of 36
17.In the above conspectus, an application for interim maintenance under Section 125 Cr.P.C. is a separate proceeding to be disposed of while pending final order and any such order of interim maintenance would be intermediate or quasi judicial order, effecting the vital rights of the parties.
18. In view of the verbose and prolix discussion, while upholding the objection of the Stamp Reporter, the appeal is hereby held as not maintainable under Section 19(1) of the Family Courts Act, 1984 qua proceeding under Chapter IX of the Cr.P.C. (Section 125-128) in view of the mandate of sub-section 2 of Section 19 of the said Act. The issue determined above, does not relate to the merits of the case under appeal.
19. Accordingly, the instant appeal is dismissed as not maintainable.
20. The appellant is at liberty to file a criminal revision under Section 19(4) of the Family Courts Act, 1984, which shall be reported by the Stamp Reporter of the Court as per the Allahabad High Court Rules, 1952. If the issue of limitation arises, it would be considered by the court concerned."
[28] Although no specific provision has been made in chapter IX Cr.P.C.with regard to payment of interim maintenance allowance, the Apex Court in Savitri W/O Govind Singh Rawat vs. Govind Singh Rawat reported in (1985) 4 SCC 337 has held that Section 125 Cr.P.C should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing the person against whom such Crl.Rev.P. 24/2020 Page 29 of 36 application is made to pay a reasonable sum to the petitioner by way of interim maintenance pending final disposal of the application. The Apex Court in the judgment succinctly held that to prevent grave hardship to the applicant who does not have any means to subsist until the final order is passed, the court may even pass ex-parte order pending service of notice on the other side and in such case the affidavit filed by the applicant may be treated as sufficient prima facie proof of her case. Observation of the Apex Court in this regard in paragraph 6 of the judgment is as follows:
"6.In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It 18 quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest" (Where Crl.Rev.P. 24/2020 Page 30 of 36 anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. 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. 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. 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. If the allegations in the application or the affidavit are not true, it is always 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 Crl.Rev.P. 24/2020 Page 31 of 36 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 there 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 No. 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."
[29] In the present context, the Family Court Agartala by its order dated 07.02.2020 in Misc. (Interim) 648 of 2019, appears to have examined the merits of the case at the intermediate stage and has in no uncertain terms recorded the findings that the applicant wife has left the company of her husband on her own volition and therefore, she is not entitled to any interim maintenance. Such an order is likely to give an impression to the applicant that her right to maintenance allowance against her husband has been finally decided by the Family Court before trying her case. The last paragraph of the four-page order of the Family Court Judge is reproduced hereunder for reference:
"I have perused the petition for interim maintenance and also considered the submission of both sides. In the instant case this court has also taken an endeavour to resolve the disputes in between both the parties through reconciliation but failed. On perusal of the case record, this court finds no documents Crl.Rev.P. 24/2020 Page 32 of 36 showing that the petitioner has made any complain against the OP due to the alleged torture on 26.07.2019. She has also failed to produce any document showing that she was attended doctor due to sustaining injury as a result of alleged torture. Therefore considering the entire facts and circumstances, the petitioner prima facie has failed to establish any cogent ground for withdrawing the petitioner from the house of the OP on 26.07.2019 for which she has entitled to get maintenance from the OP. Moreover, it is an admitted fact that the petitioner is now getting an amount of Rs.8000/- per month from her private job. Therefore, considering the entire facts and circumstances, the petitioner in this case prima facie failed to establish that she is compelled to leave her matrimonial home due to torture of her husband rather from the statement of the OP, it is found that she is voluntarily withdrawn herself from the house of the OP on 27.09.2019 after causing quarrel with him. Hence at this stage this court has failed to pass any order of interim maintenance in favour of the petitioner as the petitioner has failed to substantiate cogent ground to get interim maintenance from the OP at this stage. Accordingly, the instant petition is dismissed but no order as to cost."
[30] The order reflects that the family court did not keep in mind the avowed object of interim maintenance which has been enunciated by the Apex Court in the case of Savitri W/O Govind Singh Rawat(supra). The consideration as to whether the wife voluntarily left the company of her husband will not come on the way of her getting interim maintenance allowance. If she can convince the court that she is not Crl.Rev.P. 24/2020 Page 33 of 36 able to maintain herself and her husband despite having income and ability neglects or refuses to maintain his wife, there is no hurdle before the court to grant interim maintenance to the wife. As enunciated by the Apex Court, there is no bar even in passing ex- parte order granting interim maintenance if the application is supported by an affidavit. In the given case the applicant wife in her petition supported by an affidavit has referred to numerous incidents of harassment and cruelty meted out to her by her husband. Though her husband has denied such allegations, he has admitted that the petitioner is his wife. It is also admitted by him that he is a chief engineer in ONGC. Monthly salary of the husband is more than ₹3 lakhs and the applicant wife has also submitted documentary proof with regard to the income of her husband before the family court. The wife on the other hand does not have any income of her own for maintaining herself. No more proof is required for granting interim maintenance to a wife. The refusal of maintenance allowance to the wife in such circumstances is injustice has seriously affected the legal and substantial right of the petitioner. Crl.Rev.P. 24/2020 Page 34 of 36 [31] It is a settled proposition of law that statutes should be interpreted in such a manner so as to advance the object of the statute. Purpose of Section 397(2) Cr.P.C. is not to defeat the ends of justice by keeping interlocutory orders outside the purview of revisional jurisdiction. Rather the very purpose of the provision is to advance the course of justice by speediest disposal of cases cutting down the delays. Various decisions of the Apex Court as well as of the High Courts, cited to supra, have expounded the proposition that an interlocutory order denotes an order which is purely interim or temporary in nature and which does not substantially affect the rights of the parties.
[32] Having applied the tests laid down in the judgments cited to supra, this court is of the view that the impugned order of the Family Court denying interim maintenance to the wife despite availability of prima facie proof of her case has adversely affected her legal and substantial right and such an order cannot be treated as purely interim or temporary in character because by this order the Family Court has adjudicated one aspect of the pending proceeding which cannot assume the character of steps in aid of the proceeding. Crl.Rev.P. 24/2020 Page 35 of 36 There is no doubt that if the order is allowed to continue, it will cause hardship and grave injustice to the petitioner. It is therefore, necessary to interfere with the order to prevent miscarriage of justice. [33] Accordingly, the impugned order dated 07.02.2020 of the Family Court is set aside and the revision petition stands allowed.
With a view to the income of the husband and the needs of the petitioner, the respondent husband is directed to pay interim maintenance allowance @₹50,000/- per month w.e.f. 07.02.2020. The arrears till 31.01.2021 from 07.02.2020 shall be paid in four installments within the next 04 months and monthly interim maintenance allowance @ ₹50,000/- per month for the month of February, 2021 onwards shall be deposited in the savings bank account of the wife within 7th day of every succeeding month. If the respondent defaults in making the payment of the maintenance to his wife in the manner as directed above, the Judge, Family Court, Agartala shall realize the amount by directing his employer to deduct the amount from the salary of the respondent husband. Crl.Rev.P. 24/2020 Page 36 of 36 [34] The Family Court, Agartala will make endeavour to try and dispose the case pending before it within a period of 5 months from today, as far as practicable.
Communicate this order to the Judge, Family Court, Agartala forthwith. Supply copy of this order free of cost to the parties.
JUDGE Saikat Sarma Crl.Rev.P. 24/2020