Jharkhand High Court
Tinku Prasad Saha vs Suman Sah on 18 April, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 18 of 2021
Tinku Prasad Saha --- --- Appellant
Versus
Suman Sah --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan
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For the Appellant : Mr. Soumitra Baroi, Advocate For the Amicus Curiae : Mr. Indrajit Sinha, Advocate Ms. Anjali Sinha, Advocate
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12 /18.04.2022 Whether maintenance pendente lite and litigation cost awarded under Section 24 of the Hindu Marriage Act, 1955 during pendency of the matrimonial suit would fall in the nature of interlocutory order or intermediate order and whether an appeal would lie therefrom is the question require to be answered in the instant appeal.
2. An objection has also been raised by the Registry of this Court regarding maintainability of an appeal under Section 19(1) of Family Courts Act, 1984 ("F.C.A" for short) against an order passed under Section 24 of Hindu Marriage Act ("H.M.A" for short).
3. This appeal has been filed under Section 19(1) of the Family Courts Act, 1984 ("FCA") impugning the order passed under section 24 of the Hindu Marriage Act, 1955 ("HMA"). The appellant-husband seeks to challenge the order dated 03.10.2020 passed by learned Additional Principal Judge, Additional Family Court, Jamshedpur in Original Suit No. 194/2018 by which the appellant-husband has been ordered to pay a sum of Rs. 3,000/- per month as interim maintenance and Rs. 2000/- as the litigation cost and in addition to the above a sum of Rs. 500 per day when the wife-respondent appears before the Court in person or Rs. 200 on such date when she does not appear in person or appears through video conferencing.
4. Considering the seminal issue to be decided at hand and the line of decision on each side of fence rendered by different High Courts including this Court, we have sought assistance from learned counsel, Mr. Indrajit Sinha, as Amicus Curiae.
5. We have heard learned counsel for the appellant, Mr. Soumitra Baroi also. Since the appeal is at the threshold of maintainability respondent has not been noticed.
26. At the outset, it would be pertinent to note that a Coordinate Bench of this Court in the case of Rachana Pandey -Vs.-Sanjeev Singh [F.A. No. 567 of 2014] (reported in 2015 SCC Online Jhar 2267), had by order dated 18.05.2015 rejected similar objection and held an appeal to be maintainable under Section 19(1) of F.C.A against an order passed under Section 24 of HMA. The opinion of the learned Coordinate Bench is extracted hereinbelow:
"At the very outset learned counsel for the respondent-husband joined issue with regard to maintainability of the instant appeal relying upon a judgment of Rajasthan High Court in case of Mahesh Bhardwaj v. Smt. Sunita Bhardwaj reported in AIR 1995 Raj 47. Mr. Ram Kishore Prasad, learned counsel for the appellant-wife, sought time to assist the Court on this and has relied upon a Division Bench judgment of Uttarakhand High Court in case titled Rahul Samrat Tandon v. Smt. Neeru Tandon reported in AIR 2010 Uttarakhand 67, wherein the same objection raised after passing of an order under section 24 of the Hindu Marriage Act vis-à-vis the maintainability of the appeal was turned down relying upon Full Bench judgment of Allahabad High Court in Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava (2005 (23) LCD 1).
2. In view of the above, we hold that the instant appeal is maintainable."
Therefore, we are faced with the question as to whether the order dated 18th May, 2015 passed by Coordinate Bench of this Court in the case of Rachana Pandey (Supra) can be reconsidered by this Division Bench without referring to a Larger Bench.
7. Learned Amicus Curiae has during course of submission fairly submitted that an order of previous Division Bench would be binding on a Coordinate Bench, however, only if it decides a question of law or lays down any principles of law. The only thing binding upon the subsequent Coordinate Bench is the principles, on which the case has been decided (see (2003) 7 SCC 197 [Divisional Controller, KSRTC v. Mahadeva Shetty and Another, Para-23]). In the case of State of Punjab and others Vs. Surinder Kumar and others reported in (1992) 1 SCC 489 Para-6, it has been held "A decision is available as a precedent only if it decides a question of law......". The observations of the Apex Court in the case of State of Gujrat Vs. Mirzapur Moti Kureshi Kassab Jamat and others reported in (2005) 8 SCC 534 at Para-112 have also been placed before us inter alia as follows:
"The trend of judicial opinion is that stare decisis is not a dogmatic rule allergic to logic and reason: it is a flexible principle of law operating in the 3 province of precedence providing room to collaborate with the demands of change in times dictated by social needs, State Policy and judicial Conscience."
8. Learned Amicus Curiae has also drawn attention of this Court to the views of the other High Courts which can be divided into two broad categories one which hold that such an appeal is maintainable and the other which holds that the appeal is not maintainable. The High Courts which had taken the view in favour of an appeal being maintainable under Section 19(1) of FCA from an order passed under Section 24 of HMA including this Court are as under:
i. Kiran Bala Srivastava v. Jai Prakash Srivastava [2005 (23) LCD 1 = MANU/UP/2771/2004 - Allahabad High Court, Full Bench]. ii. Subash Gupta v. Kabita Gupta [2006 SCC Online All 1321: (2007) 2 All LJ 84 - Allahabad High Court, Division Bench].
iii. Rahul Samrat Tandon v. Neeru Tandon [AIR 2010 Uttarakhand 67 = MANU/UC/0781/2010 - Uttarakhand High Court, Division Bench]. iv. Manish Aggarwal v. Seema Aggarwal [2012 SCC Online Del 4816 - Delhi High Court - Division Bench].
v. P.T. Lakshman Kumar v. Mrs. Bhavani [2013 SCC Online Mad 1468 - Madras High Court- Single Bench].
vi. Prafull Kumar v. Smt. Asha [F.A. No. 764/2015 vide a Judgment and order dated 26 October, 2016 - Madhya Pradesh High Court, Division Bench]. vii. Rachana Pandey v. Sanjeev Singh [2015 SCC Online Jhar 2267 - Jharkhand High Court, Division Bench].
viii. Kavita Vyas v. Deepak Dave [2018 SCC Online Raj 1601 = MANU/RH/OO15/2018 = AIR 2018 Raj 72(FB) - Rajasthan High Court, Full Bench].
The judgments and orders passed by some High Courts, which have taken the contrary view i.e., an appeal is not maintainable against an order passed under Section 24 of HMA are as under:
i. Sunil Hansraj Gupta v. Payal Sunil Gupta [AIR 1991 Bom 423 - Bombay High Court, Division Bench].
ii. Mahesh Bhardwaj v. Smt. Smita Bhardwaj [AIR 1995 Raj 47 - Rajasthan High Court, Division Bench] iii. Swarna Prava Tripathy and Ors. v. Dibyasingha Tripathy and Ors. [1998 SCC Online Ori 56 = AIR 1998 Ori 173 - Orissa High Court, Full Bench]. iv. Neelam Kumari Sinha v. Shree Prashant Kumar [2010 SCC Online Pat 687 = AIR 2010 Pat 184(FB) - Patna High Court, Full Bench]. v. Anil Mishra v. Sakshi Mishra [AIR 2017 Chhattisgarh 108 - Chhattisgarh High Court - Division Bench] vi. Monica Sahu v. Puranlal Sarwa [MANU/CG/1012/2019 = 2020(2) CGLJ 276 - Chhattisgarh High Court, Division Bench]
9. Leaned counsel for the appellant has argued in favour of maintainability of appeal and while doing so relied upon the set of decisions which hold so. He has submitted written notes along with compilation of 4 decision. The said judgments are already part of the compilation submitted by learned amicus curiae.
10. We find from perusal of the judgment passed in the case of Rachana Pandey (supra) that it has relied upon the Full Bench judgment of Allahabad High Court in the case of Smt. Kiran Bala Srivastava-Vs.- Jay Prakash Srivastava and the judgment of Uttarakhand High Court in the case of Rahul Samrat Tandon-Vs.- Smt. Neeru Tandon following it, wherein the appeal was held to be maintainable. Learned Coordinate Bench of this Court has also taken note of judgement of Rajasthan High Court in the case of Mahesh Bhardwaj Vs. Smt. Sunita Bhardwaj, where the appeal has been held to be not maintainable. However, the learned Court has not taken into consideration the Full Bench judgment of the Orissa High Court in the case of Swarna Prava Tripathy and Ors. Vs. Dibyasingha Tripathy and Ors., wherein the appeal was held to be not maintainable. As such, we can take note of that the judgment of co-equal Bench in the case of Swarna Prava Tripathy rendered by Full Bench of Orissa High Court were not placed for consideration before it. The learned Coordinate Bench of this Court, therefore, was precluded from authoritatively deciding the question regarding the maintainability of an appeal under Section 19(1) of F.C.A against an order passed under Section 24 of H.M.A.
11. The judgment of Coordinate Bench of this Court can therefore be said to be per incuriam. The rival judgments on opposite sides of fence as to the maintainability of an appeal have time and again raised this legal conundrum before this Court. Therefore, it is necessary that the recurrent question of maintainability of an appeal under Section 19(1) of FCA against an order passed under Section 24 of HMA is authoritatively decided. The contrary decisions on this point from various jurisdictional High Courts have also been able placed before us by learned Amicus Curiae.
12. In order to appreciate the controversy at hand, it is proper to quote Section 19 of FCA hereunder.
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.
5(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 (59 of 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 preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
13. We have taken note of the divergent views of different High Courts above. As would appear from perusal of two sets of judgments, it appears that the rival views of the different High Courts are founded on two leading judgments both by Full Bench of respective High Courts i.e., Allahabad High Court and Orissa High Court in the case of Kiran Bala Srivastava (supra) and Swarna Prava Tripathy (supra). It would thus be appropriate to discuss the ratio of the above two Full Bench decisions.
In the case of Kiran Bala Srivastava (supra), a Division Bench of Allahabad High Court made a reference to a Full Bench on account of the divergence of views of Division Benches of the said High Court regarding the maintainability of appeal under section 19 of FCA from an order passed under section 24 of HMA. The judgment in the case of Avadhesh Narain Srivastava v. Archna Srivastava [1990 (8) LCD 66] which held that an appeal was maintainable was found to be in conflict with two subsequent Division Bench decisions in Smt. Pratima Sen Gupta v. Sajal Sen Gupta [1998 (16) LCD 66] and Ravi Saran Prasad alias Kishore v. Smt. Rashmi Sinha [AIR 2001 All 227], whereby it was held that an appeal was not maintainable.
14. The Full Bench after noticing the relevant statutory provisions and considering the definitions of the term "decree", "judgement", "order" and placing heavy reliance on the celebrated judgement of the Hon'ble Supreme Court in the case of Shah Babu Lal Khimji v. Jayabein D. Kania & Another [(1981) 4 SCC 8] observed that an order or interlocutory orders 6 possessing the characteristics and trappings of finality or affecting valuable rights of the parties or deciding important aspects of the trial in the main or in the ancillary proceedings, will be a "judgment". The Full Bench also took into note the decisions of the Apex Court rendered in the case of Amar Nath v. State of Haryana [(1977) 4 SCC 137] and Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] to discuss the meaning of "interlocutory order". The Full Bench was of the view that section 24 of HMA is gender neutral but in practice the provision is invoked by the wife and is important from the point of view of the wife, as not only her survival during the pendency of the proceedings but her right to prosecute or defend the proceedings also depends on the outcome of the proceedings under section 24. It further went on to observe that refusal of maintenance under section 24 is serious to the wife so much so that she may even give up the idea of defending herself for want of sufficient means. The argument that an appeal against such an order will delay the disposal of the main petition was not accepted by rejecting the contention to give the limited meaning to the word "judgment". It appears that the Full Bench of the Allahabad High Court did not take notice of the Full Bench decision of the Orissa High Court rendered in the case of Swarna Prava Tripathy and Ors (supra), though the earlier decisions of Sunil Hansraj Gupta v. Payal Sunil Gupta [AIR 1991 Bom 423] and Mahesh Bhardwaj v. Smt. Smita Bhardwaj [AIR 1995 Raj 47] were taken note of.
15. The conclusion arrived at by Allahabad High Court in the case of Kiran Bala Srivastava at paragraph 28-30 of Manupatra report is quoted hereunder:
"28. The learned counsel for the respondents has referred to the definition of "interlocutory orders" in Vol. 22 of the third edition of Halsbury's Law of England and also to Central Bank of India v. Gokul Chand, AIR 1967 SC 799 and also to Amar Nath's case and Madhu Limaye's case (supra), so as to say that order under Section 24 of the Act of 1955 are just steps in aid of the main proceedings and have no existence independent of the main proceedings, so will not fall within the definition of the judgment and will be only an interlocutory order. We are of the view that in view of the discussion made above order of pendent lite maintenance has all the characteristics and trappings of the judgment as it decides the valuable rights and liabilities of the parties to the proceedings. In so far as those rights and liabilities are concerned the order is final. The fact that the considerations that matter in granting or refusing pendent lite maintenance under Section 24, have no connection with issues in the main proceedings or the question that even after disposal of application under Section 24, the main petition remains alive for disposal, do not prevent the order under Section 24 from falling within the definition of the "judgment". We are also of the view that the expression "interlocutory order" appearing in sub-section (1) of Section 7 19 of the Act 1984 qualify the word "order" only and does not qualify the word "judgment" appearing before the word "order". In other words, if order of pendent lite maintenance is a "judgment" for all legal and practical purposes, it matters, little whether the same is interlocutory or final.
29. With due respect to the Hon'ble Judges deciding cases of Smt. Pratima Sen Gupta and Ravi Saran Prasad @ Kishore (supra), we find ourselves unable to subscribe to the view taken therein. The reasoning that since the Bill intended to provide only one right of appeal against the judgment and order of the family court, so right of appeal was not permissible against order under Section 24, was not sound one. To our mind, declaration in the Bill introducing the Act of 1984 that only one right of appeal was to be provided did not mean that order under Section 24 granting pendent lite maintenance was not a "judgment" for purposes of subsection (1) of Section 19. As observed earlier and as held in Full Bench decision of this case in Prem Lata's case (supra), second appeal also lay against decrees and orders initially appealable under sub- section (1) or sub-section (2) of Section 28 of the Act of 1955. Similar right of second appeal could have also been against orders to be passed in such matters under other enactments. We think the Parliament made it clear that there shall be only one right of appeal against the judgments and orders of the family court. In other words, the right of second appeal which could have earlier been available under the respective enactments its, was taken away. Parliament wanted to provide only one appeal, against a particular adjudication or decision of a family court. In other words, against the same decision or adjudication, there could not be two appeals.
30. We agree with the view taken by the Division Bench in Avadhesh Narain Srivastava's case. Since orders under Section 24, granting pendent lite maintenance is a judgment, so appeal will lie under sub- section (1) of Section 19 of the Act of 1984."
16. We now advert to Full Bench decision of Orissa High Court in the case of Swarn Prabha Tripathy and others (supra). In the said case, the Hon'ble Full Bench was called upon to decide the correctness of a Division Bench judgement of the Orissa High Court passed in Civil Appeal No. 17 of 1996 (decided on 08.10.1996), which held an appeal to be maintainable against an order passed under section 24 of the HMA. The Full Bench after noticing the divergent views taken by various High Courts focused its attention on the issue as to whether an order passed under section 24 of the HMA is an interlocutory order or not and after taking note of the judgments of the Supreme Court rendered in the case of Central Bank of India v. Gokul Chand [AIR 1967 SC 799] and more particularly in the case of Ramesh Chandra Kaushal v. Mrs. Veena Kaushal [ (1978) 4 SCC 70], held that an order passed under section 24 of the HMA is an interlocutory order and as such no appeal would lie in terms of section 19(1) of the Family Courts Act rather such orders would be amenable to Article 227 of the Constitution of India. The operative part of the judgment of Swarna Prava Tripathy and Ors. (supra) is quoted hereunder:
8"6. At this juncture it is necessary to pigeonhole which can be called interlocutory orders and final orders. Interlocutory orders are of various kinds; some like orders of stay, injunction, or receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based, though if application were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court. An order may be final for one purpose and interlocutory for another. The expression 'interlocutory order' as used in restricted and not in any broad or artistic sense, denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties, in Webster's Third International Dictionary, the expression 'interlocutory' has been defined as, 'not final or definite, made or done during the progress of an action; intermediate, provisional'. The emphasis is, therefore, at the stage when the order is passed. Interlocutory stage is decidedly the state between the cognisance taken by the Court and the judgment pronounced. The interlocutory order is supplemental proceeding which is a means to an end and not an end itself. The word 'interlocutory' means according to the import of the dictionary 'intermediate' and the interlocutory order is one passed during the progress of the proceeding that is to say interlocutory order must be an order passed after the initiation of the proceedings and before the final order disposing of the matter. In New Webster's Dictionary, College Edition, the meaning given is 'of the nature of, pertaining to, or occurring in, conversation or dialogue; spoken intermediately, as interlocutory conversation interjected into the main speech. Law, pronounced during the course of an action, as a decision or order, not finally decisive of a case, pertaining to a provisional decision.' Interlocutory orders are steps taken towards the final adjudication for assisting the parties in the prosecution of their case in the pending proceedings. See Central Bank of India v. Gokul Chand, AIR 1967 SC 799. Interlocutory inter alia means not that which decides the case, but that which only settles some intervening matter relating to the cause. As interlocutory order is one which is made pending the cause and before a final hearing on the merits. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, and generally collateral to the issues formed by the pleadings and not connected with the final judgment.
7. The position in law relating to the controversy at hand has been indicated in Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 as follows (Para 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 S. 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 9 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. In view of the law as laid by the Apex Court, the inevitable conclusion is that an order passed under Section 24 or 26 of Marriage Act is an interlocutory order and as such, no appeal would lie in terms of Section 19(1) of the Act. The question is whether revision would lie. In view of what has been stated in sub-section (5), revision would not lie.
9. The residual question is remedy available to affected parties in respect of interlocutory orders. In appropriate cases, writ application would lie, to be dealt with under Article 227 of the Constitution of India, as observed by the Apex Court in Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33: (1995 AIR SCW 1439 at p. 1441). Same reads as follows:
"Shri Rajinder Sachar learned Senior Counsel for the appellants contended that under Section 115, C.P.C. High Court has power of revision where the appeal is not provided for either to it or subordinate Court. Since the Joint Judge had exercised the appellate power, by operation of Section 115(2), the High Court was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was imposed by CPC which is a more expeditious and efficacious remedy, the exercise of jurisdiction by the High Court under Article 226 was not warranted. At this juncture it is necessary to point out that the High Court exercised its power under Article 227 and not either under Article 226 or under Section 115, CPC. Even otherwise the bar under Section 115(2) is to exercise revisional power where the party is provided with right of appeal to the High Court or the subordinate Court against the impugned order. It is not a bar to exercise revisional power under Section 115(1) against appellate order. The ratio in Aundal Ammal v. Sadasivan Pillai, (1987) 1 SCC 183 : (AIR 1987 SC 203) is that no second revision under Section 115(1) would lie against revisional order of the subordinate Court."
It is, however, to be noted that power under Article 227 of the Constitution was held as not to be exercised in a routine manner. Power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and Tribunals within bounds of their authority, and not for correcting mere errors. A mere wrong decision without anything more is to attract jurisdiction of High Court under Article 227. The supervisory jurisdiction conferred under the said Article is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority. In exercising the supervisory power, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors in the decision. The power of superintendence being extraordinary is to be exercised most sparingly and only in appropriate cases. The power of superintendence is not intended to confer in the High Court an unlimited prerogative to interfere in every case where a wrong decision has been arrived at by a judicial or quasi-judicial Court or Tribunal, either on fact or in law. The High Court will refuse to issue any writ in the event it is found that substantial justice has been done to the parties or in larger interest it would not be prudent to issue such a writ."
17. It may further be taken note that the Full Bench decision of Patna High Court in the case of Neelam Kumari Sinha Vs. Prashat Kumar reported 10 in AIR 2010 Pat 184 (FB) followed the view of the Orissa High Court in the case of Swarna Prava Tripathy and Ors. (supra) and held that an appeal is not maintainable. It appears that the Full Bench judgment of Allahabad High Court delivered in the case of Kiran Bala Srivastava (supra) was not brought to the notice of the Patna High Court, rather the Division Bench judgment of Allahabad High Court in the case Ravi Saran Prasad alias Kishore v. Smt. Rashmi Sinah [AIR 2001 All 227] was cited and followed, which stood overruled by the Full Bench in Kiran Bala Srivastava (supra). Likewise, the Division Bench of the Chhattisgarh High Court in the case of Anil Mishra v. Sakshi Mishra [AIR 2017 Chh 108], did not notice and consider the Full Bench decision of the Allahabad High Court in the case of Kiran Bala Srivastava (supra) and chose to follow the Full Bench decisions of Orissa and Patna High Courts. A subsequent judgment of Chhattisgarh High Court in the case of Monica Sahu v. Puranlal Sarwa [MANU/CG/1012/2019] though noticed the judgment of the Full Bench of the Allahabad High Court in the case of Kiran Bala Srivastava (supra), but did not assign any reason whatsoever to disagree with it rather chose to follow the earlier Division Bench of Chhattisgarh High Court in the case of Anil Mishra (supra).
18. An analysis of judgments of the Full Bench of Allahabad in the case of Kiran Bala Srivastava (supra) and the decisions of High Courts following it indicates that they have approached the issue from the angle that an order passed under section 24 of HMA is a "judgment" and have referred to and relied upon the decision of the Hon'ble Supreme Court rendered in the case of Shah Babu Lal Khimji (supra) whereas the Full Bench of the Orissa High Court in the case of Swarna Prava Tripathy and Ors. (supra) and the judgments and orders of High Courts following it have placed reliance on the decision of the Supreme Court in the case of Ramesh Chandra Kaushal v. Mrs Veena Kaushal [(1978) 4 SCC 70. We may, therefore, proceed to deal with the ratio of two judgments of the Apex Court in some detail to understand their applicability in the context of the issue at hand.
19. In the case of Shah Babu Lal Khimji (supra), the Supreme Court of India was deciding a substantial question of law relating to the scope, ambit and meaning of the word 'judgement' appearing in Clause 15 of the Letters Patent of the Bombay High Court and the corresponding clauses in the Letters Patent of other High Courts and as to when an interlocutory order will be covered by the term "judgment" under the Letters Patent so as to make them appealable. In Shah Babu Lal Khimji (supra) the Apex Court decided as to 11 what kind of "interlocutory orders" can be considered as "judgment" within the meaning of Letters Patent so as to maintain an appeal there against to the Division Bench of the concerned High Court.
20. Learned Amicus Curiae has submitted that the said decision is on a different proposition of law and does not apply, specifically to the question raised in this appeal. So far as FCA is concerned even an order, not being an interlocutory order, has been made appealable and hence it is not at all necessary that an order to be appealable has to be a "judgment" or brought within the ambit of word "judgment". It may be pertinent to note that the Letters Patent does not define the word "judgment" and hence the Supreme Court and various High Courts have taken the pains to define the same on case to case basis and after administering the test propounded by Shah Babu Lal Khimji (supra).
21. We now advert to the judgment of the Apex Court in the case of Ramesh Chandra Kaushal (supra) relied upon by Full Bench of Orissa High Court. The Apex Court was considering an appeal questioning an order of maintenance granted under section 125 CrPC on two grounds, viz. (a) that in a divorce proceeding the Civil Court had passed an order of interim maintenance quantified at ₹ 400 (which was affirmed by the High Court) and hence the determination of quantum by Civil Court should prevail over a like decision of a Criminal Court, and (b) the awardable maximum under section 125 Cr.P.C was at that time ₹500 whereas the Criminal Court's order directed payment of maintenance of ₹1000 to the wife and her two children as affirmed by the High Court which was not correct. On both counts the appeal was dismissed. While considering the first issue the Apex Court observed that the general principle of civil court's order prevailing over a criminal court was inapplicable as the direction by the civil court is not a final determination under the Hindu Adoption and Maintenance Act but an order pendent lite, under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly expenses during the proceedings. Paragraph 6 of the Supreme Court Cases Report is reproduced hereunder:
"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 life, under Section 24 of the Hindu Marriage Act to pay 12 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."
In respect of the second issue concerning Section 125 Cr.P.C which also deals with maintenance of a wife and minor children, the Supreme Court at Para- 9 of the report held as under:
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause -- the cause of the derelicts."
22. It has been submitted by learned Amicus Curiae that though Section 24 is gender neutral, but the provision is mostly invoked by and for the benefit of wife in a matrimonial proceeding and hence the observations will mutatis mutandis apply to section 24 HMA as well and can be applied to find out an answer to the issue at hand.
23. Learned Amicus Curiae has submitted that in order to interpret the provision under Section 19(1) relating to appeal, it is necessary to examine the object and purpose of the FCA. It is trite that while construing a provision relating to appeal/ jurisdiction of the court/ tribunal the object of the statute can be an aid to construction of the said provision. In this regard, learned Amicus Curiae has placed the decision of Division Bench of this Court [of which one of us Aparesh Kumar Singh, J was a member] in the case of Baga Tirkey v. Pinki Linda [First Appeal No. 124 of 2018]. This Court after taking note of scheme and object of FCA and the decisions of the Apex Court in the case of K.A. Abdul Jaleel Vs. T.A. Shahida reported in (2003) 4 SCC 166 and in the case of Balram Yadav Vs. Fulmaniya Yadav reported in (2016) 13 SCC 308 held as under:
"9. ....... In this regard, it is pertinent to refer to the scheme and object of the Family Courts Act, 1984. The Family Courts Act, 1984[in short FCA] was enacted in public interest for the establishment of the Family Court for speedy settlement of the family dispute. The legislative power exercised by the Parliament 13 can be traced to Article-246(2) of the Constitution of India. The field of legislation is referable to Entry-11-A under List-III of Seventh Schedule was inserted by 42nd Amendment Act, 1976 i.e. "Administration of justice, constitution and organization of all courts, except the Supreme Court and the High Court"
10. The preamble to the FCA states that it is an Act to provide for the establishment of Family Courts with a view to promote conciliation and to secure speedy settlement of the disputes relating to marriage and family affairs and for matters connected therewith. The FCA is a secular law applying to all religions. Section 7(1)(A) of the FCA confers "all the jurisdiction" hitherto exercised by any District Court or any Subordinate Civil Court in suits or proceedings relating to matters mentioned in Clauses-(a) to (g) of the Explanation. Clause-(a) of the Explanation reads as 'a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage'. Use of the words 'all the jurisdiction' makes the legislative intent clear that all the enumerate matters in the explanation to section 7 would be the exclusive domain of the Family Courts established under the FCA. In other words, the FCA created a forum for adjudication of matrimonial matters of the nature enumerated in the explanation to Section 7 of the FCA, which forum can be resorted to by one and all, be it a member of scheduled tribe or a person of any religion.
11. It is useful to refer to the opinion of the Apex Court rendered in the case of K.A. Abdul Jaleel Versus T.A. Shahida, reported in (2003) 4 SCC 166, in this regard, Paras-11 and 14 thereof are quoted hereunder:-
"11. ........ The wordings 'disputes relating to marriage and family affairs and for matters connected therewith' in the view of this Court must be given a broad construction. The Statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. 14. It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation
(c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up."
12. Further in the case of Balram Yadav Versus Fulmaniya Yadav, reported in (2016) 13 SCC 308, the Apex Court has explained the scope of jurisdiction under Section 7(1) Explanation (b) of the FCA as under:-
".....Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws."14
13. The illuminating opinion of the Apex Court leaves no room of doubt on an expansive and liberal interpretation of the jurisdiction of the family courts under the FCA."
24. Learned Amicus Curiae has, however, pointed out that an expansive interpretation to the jurisdiction clause of the FCA does not ipso facto mean that the appellate provision also has to be liberally and expansively construed. Appellate provisions have to be interpreted in a manner which would further the object of the Statute and not run contrary to the legislative intent. In this regard, he has taken aid of the doctrine of purposive construction which is a well settled principle of interpretation now being increasingly relied upon by this Court. It is submitted that the courts are entitled to look into the object and purpose of the enactment and in this regard, one may refer to the decision of the Supreme Court of India in the case of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. [(2020) 5 SCC 757 (paras-20 & 21] and in the case of Municipal Corporation of Greater Mumbai v. Ankita Sinha & Ors. [2021 SCC OnLine SC 897].
In New India Assurance Co. Ltd. (supra), the Apex took note of the object of the Consumer Protection Act, 1986 (hereinafter referred to as "CPA"), to interpret the provisions of Section 13 of the CPA. It took note that the CPA was enacted to provide speedy disposal of consumer disputes and, hence, preferred an interpretation which was in tune of such object. It accordingly held that the district forums have no power to extend the time to file response to a complaint beyond the period of 15 days in addition to 30 days, as is envisaged under Section 13 of the C.P.A.
25. Likewise in Municipal Corporation of Greater Mumbai (supra), the Supreme Court observed that the National Green Tribunal (hereinafter referred to as "NGT") is a Forum created specifically to address environmental concerns and was expected to move with expediency. It went on to hold that the NGT has the power to initiate a suo moto proceedings. According to learned Amicus Curiae, Section 19 of the FCA therefore has to be interpreted in a manner, which is in consonance with the object of FCA and HMA and does not run contrary thereto. Hence, it has to be ascertained as to whether by holding that an appeal is maintainable, the object of speedy redressal is in any manner being frustrated or not.
26. It is pertinent to take note of the aims and objects of the Family Courts Act, 1984, which reads as under.
15"An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith"
It is also pertinent to quote Section 21(B) of the Hindu Marriage Act, 1955 also hereunder, which provides that every petition under HMA shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent. It also stipulates that an every appeal under the Act should be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent. Section 21(B) is quoted hereunder:
"21(B). Special provision relating to trial and disposal of petitions under the Act.- (1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be record.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent."
We may also quote Section 24 of HMA, the proviso whereof also stipulates that an application for payment of expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the wife or husband, as the case may be. The aims and objects of the FCA read together with relevant provisions of HMA both go to show that the object of both the enactments are to ensure speedy adjudication of matrimonial disputes and also claims relating to maintenance pendente lite and cost of proceedings.
"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 16 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."
27. From a plain reading of Section 19 of FCA, it is clear that no appeal lies thereunder against an interlocutory order. Therefore, in order to answer the issue at hand one must pose the following questions:
Whether an order passed under Section 24 of HMA is an "interlocutory order" or not?
What are interlocutory orders?
The principles of statutory interpretation provide that in ordinarily the meaning of word is not to be taken in abstract, but regard must be had to the setting in which the word occurs as also to the subject matter and object of the enactment. However, in case of doubt these factors gain prominence in selecting the true meaning out of the rival interpretations which may be reasonably open. [see Principles of Statutory Interpretation; 13th Edition, 2012 Justice G.P. Singh, Chapter 2, page 124.]
28. The same expression used in two different enactments in similar context may have different meanings having regard to the object of each enactment. The expression 'interlocutory order' has also been used in Section 397 (2) of the Code of Criminal Procedure, 1974 and section 11 of the Special Courts Act, 1979. In the former, it has been understood in the wider sense but in the latter in its natural sense having regard to the object of speedy trial.
29. The Apex Court in the case of V.C. Shukla v. State through CBI reported in [1980 Supp SCC 92] had occasion to interpret the term "interlocutory order" in reference to Section 11(1) of the Special Courts Act, 1979. For better understanding we intend to quote both Section 19 of FCA and Section 11(1) and (2) of Special Courts Act hereunder:
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 17 Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 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 preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges..................."
Special Courts Act, 1979 [APPEAL]
11. (1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court.
30. In the case of V.C.Shukla, the appeal was directed against an order framing charge by a Special Judge under the Special Courts Act, 1979. The Apex Court refrained from interpreting the term "interlocutory order" in a special or wider sense as used in section 397(2) of Cr.P.C. It preferred to interpret the term in its natural sense and therefore by a majority of 3:1 held that an appeal was not maintainable. The Apex Court considered the scheme of Special Courts Act, 1979 which had the object of expeditious trial and quick dispatch of cases. The Apex Court referred to the case of Amar Nath v. State of Haryana [(1977) 4 SCC 137] and Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] and the non-obstante clause in Section 11 of Special Courts Act, 1979 and held that the judgments in the said cases were given in the context of the Code, particularly Section 397(2) and were correctly decided, but would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code. The relevant opinion of Apex Court in the case of V.C.Shukla (supra) are as follows:
"34. There is yet another aspect of the matter which has to be considered so far as this decision is concerned, to which we shall advert when we deal with the last plank of the argument of the learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and the English decisions viz. that an order is not a final but an interlocutory one if it does not determine or decide the 18 rights of parties once for all. Thus, on a consideration of the authorities, mentioned above, the following propositions emerge:
(1) that an order which does not determine the right of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue, because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
35. Applying these tests to the order impugned we find that the order framing of the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have terminated but that is only one side of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still be alive. Mr Mridul tried to repel the argument of the Solicitor-General and explained the decisions, referred to above, on the ground that the English decisions as also the Federal Court's decisions made the observations while interpreting the provisions of the Government of India Act or the provisions of the Constitution where the word "final" order was expressly used. It was urged that the same construction would not apply to the present case where the word "order" is not qualified by the word "final". With due respect to the learned counsel, in our opinion, the distinction sought to be drawn is a distinction without any difference. This Court as also the Federal Court have clearly pointed out that so far as the tests to be applied to determine whether an order is final or interlocutory, apply as much to a civil case as to a criminal case. Furthermore, as already indicated, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast with a final order. This was held in a number of cases referred to, including Madhu Limaye case [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 :
(1978) 1 SCR 749] which has been expressly stressed by us in an earlier part of the judgment. For these reasons, therefore, the 19 contention of the learned counsel for the appellant on this aspect of the matter fails and is hereby overruled.
42. The learned counsel for the appellant then finally submitted that the present statute which gives a right of appeal, should be liberally construed in favour of the accused so as not to deprive him of the right of appeal. The counts counsel relied on the observations of Crawford: THE CONSTRUCTION OF STATUTES (pp. 692-93) which may be extracted thus:
S. 336. Appeals.--.... Moreover, statutes pertaining to the right of appeal should be given a liberal construction in favour of the right, since they are remedial. Accordingly, the right will not be restricted or denied unless such a construction is unavoidable.
43. There can be no dispute regarding the correctness of the proposition mentioned in the statement extracted above, but here as the right of appeal is expressly excluded by providing that no appeal shall lie against an interlocutory order, it is not possible for us to stretch the language of the section to give a right of appeal when no such right has been conferred. Even the statement extracted above clearly says that "the right will not be restricted unless such a construction is unavoidable". In the instant case, in view of the non obstante clause Section 11(1) of the Act cannot be construed to contain a right of appeal even against an interlocutory order and, therefore, the present clause falls within the last part of the statement of Crawford, extracted above. Thus, this argument of the learned counsel also is wholly devoid of any substance.
45. On a true construction of Section 11(1) of the Act and taking into consideration the natural meaning of the expression "interlocutory order", there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami case [1947 FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] the order impugned was undoubtedly an interlocutory order. Taking into consideration, therefore, the natural meaning of interlocutory order and applying the non obstante clause, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore Section 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the cases of Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : (1978) 1 SCR 749] and Amar Nath v. State of Haryana [(1977) 4 SCC 137 :
1977 SCC (Cri) 585 : (1978) 1 SCR 222] were given with respect to the provisions of the Code, particularly Section 397(2), they were correctly decided and would have no application to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non obstante clause.
46. We feel that one reason why no appeal was provided against an interlocutory order like framing of the charges, as construed by us so far as the Act is concerned, may have been that it would be against the dignity and decorum of the very high status which the Special Judge under the Act enjoys in trying the case against an accused in that the Judge is a Sitting Judge of a High Court and therefore must be presumed to frame the charges only after considering the various principles and guidelines laid down by other High Courts and this Court in some of the cases referred to above.
47. Thus, summing up the entire position the inescapable conclusion that we reach is that giving the expression "interlocutory order" its natural meaning according to the tests laid 20 down, as discussed above, particularly in Kuppuswami case [1947 FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625] and applying the non obstante clause, we are satisfied that so far as the expression "interlocutory order" appearing in Section 11(1) of the Act is concerned, it has been used in the natural sense and not in a special or a wider sense as used by the Code in Section 397(2). The view taken by us appears to be in complete consonance with the avowed object of the Act to provide for a most expeditious trial and quick dispatch of the case tried by the Special Court, which appears to be the paramount intention in passing the Act.
48. In these circumstances, therefore, we hold that the order passed by the Special Judge was an interlocutory order and the appeal filed against that order in this Court is clearly not maintainable. We, therefore, uphold the preliminary objection taken by the Solicitor-General and dismiss the appeal as being not maintainable."
31. In view of the above proposition of law, learned Amicus Curiae has submitted that the opinion of the Apex Court in the case of V.C.Shukla should apply with equal force to section 19 of FCA. Section 19 FCA has a non obstante provision [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] and thereby expressly excludes the CPC and the Cr.P.C. The term "interlocutory order" must be construed in its natural sense and having regard to the purpose and object of the Act, which necessitates that the expression "interlocutory order" be interpreted in a wider sense so as to bring within its fold all such orders which are not final. The concept of "intermediate order" or a "case decided" which are revisable under the provisions of CrPC and CPC cannot be invoked in respect of section 19 of the FCA. Therefore, reference to various case laws rendered in the context of CrPC, CPC or any other law would not be appropriate as it would be unnecessary and out of context.
32. Learned Amicus Curiae has also addressed the issue from a different angle i.e. whether an order passed under section 24 HMA affects any substantial right and has the trappings of finality. Relying upon the case of Shyam Sel and Power Limited and Another v. Shyam Steel Industries Limited, 2022 SCC OnLine SC 313 (paragraphs 17-20), it is submitted that in the said case the Apex Court has held that an order passed by a Single Judge in a suit postponing the hearing of a temporary injunction matter was not appealable. It was also held that an order vitally affecting a valuable right of the defendants, will undoubtedly be treated as a 'judgment' within the meaning of Letters Patent so as to be appealable to a Larger Bench and an order to be construed as a 'judgment', it must have the traits and trappings of finality. It was further held that each and every order passed by the Court during the 21 course of the trial, though may cause some inconvenience to one of the parties or, to some extent, prejudice to one of the parties, cannot be treated as a 'judgment'.
33. We may now advert to a recent path breaking decision rendered by the Apex Court in the case of Rajnesh Vs. Neha & Anr. reported in (2021) 2 SCC 324, wherein for the first time the Apex Court held that the party claiming maintenance should be required to file concise application for interim maintenance with limited pleadings, along with an affidavit of disclosure of assets and liabilities before the court concerned, as a mandatory requirement. It was further held that on the basis of the pleadings filed by both the parties and the affidavits of disclosure, the court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage. The Hon'ble Supreme Court prescribed the formats in which the affidavits of assets and liabilities were to be filed. A separate format was provided for non-agrarian deponents and agrarian deponents for the State of Meghalaya.
34. The primary reason for providing for the above procedure appears to be that the Apex Court was cognizant of the fact that despite the time frame provided for by the statutes in the form of the proviso to section 24 of the HMA (60 days from the date of service of notice) and the third proviso to section 125 CrPC (60 days from the date of service of notice), the applications for grant of interim maintenance remained pending for several years. The Court further noticed that at present the issues related to interim maintenance are decided on the basis of pleadings, with some amount of guesswork or rough estimation so as to make a prima facie assessment of the amount to be awarded. Such practices according to the Apex Court made it difficult for Family Courts to make an objective assessment for grant of interim maintenance. The Apex Court was of the view that maintenance taking wife has a tendency to exaggerate her needs while it is a corresponding tendency by the husband to conceal his actual income and therefore it has become necessary to lay down a procedure to streamline the proceedings. A dependent wife, who has no other sources of income, has to take recourse to borrowings from her parents / relatives during the interregnum to sustain herself and her minor children till she begins receiving interim maintenance. The Apex Court, therefore, laid down the procedure and guidelines for deciding a claim of maintenance in a matrimonial proceeding or in a proceeding under Section 125 of Cr.P.C. Paragraph 72 of the judgement is profitably quoted hereunder:
22"72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate's Court concerned, as the case may be, throughout the country;
72.2. (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks.
The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings [Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915] . On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record;
72.4. (d) The above format may be modified by the court concerned, if the exigencies of a case require the same. It would be left to the judicial discretion of the court concerned to issue necessary directions in this regard.
72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the court concerned may pass appropriate orders in respect thereof. 72.6. (f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the court to serve interrogatories and seek production of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872, if it considers it necessary to do so. The income of one party is often not within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned. 72.7. (g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 CrPC, and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker sections ("EWS"), or are living below the poverty line ("BPL"), or are casual labourers, the requirement of filing the affidavit would be dispensed with.
72.10. (j) The Family Court/District Court/Magistrate's Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned order, within a period of four to six 23 months at the latest, after the Affidavits of Disclosure have been filed before the court.
72.11. (k) A professional Marriage Counsellor must be made available in every Family Court."
35. At paragraph 77 of the judgement, it was observed that the objective of granting interim/ permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. Therefore, no straightjacket formula for fixing the quantum of maintenance to be awarded can be laid down.
36. From a cumulative reading of the guidelines and observations of the Supreme Court of India, it is clear that an application for grant of interim maintenance has to be decided in an expeditious manner and to facilitate the early disposal of cases only, the new guidelines were issued. The nature of a proceeding for grant of interim maintenance certainly is summary in nature and after the judgment of Apex Court in Rajnesh (supra) there is no doubt that the Family Courts have to decide the matters objectively based on the disclosures made by the parties on affidavit.
37. Since the interpretation of a provision relating to appeals is under consideration before this Court it would also be proper to delve on this issue at this stage. An appeal is a right of entering in a Superior Court and invoking its aid and interposition to redress an error of the Court below. [ see A.G. v. H J Sillem (1864) 11 ER 1200, Page-1209 (HL) (Lord Westberry, L.C.) referred to in Dayawanti v. Inderjit AIR 1966 SC 1423, (para 10). In the case of Super Cassettes Industries Ltd. v. State of U.P reported in [(2009)10 SCC 531, Para-23], the Apex Court held that appeal is not a natural or inherent right and cannot be assumed to exist unless provided by a statue.
38. In Competition Commission of India v. Steel Authority of India Ltd. (2010) 10 SCC 744 (para 45, 48) the Apex Court while dealing with Section 53A of the Competition Act, by which the Competition Appellate Tribunal has been established and which provides for appeals against orders passed by the Competition Commission against "any direction issued, decision made or order passed by the Commission under Sub-section (2) and (6) of section 26" but not against any direction under sub-section (1) of section 26 to the Director General to investigate a case when it finds a prima facie case has held that no right of appeal can be impliedly inferred. It is trite that the right of appeal is a statutory right and it can be circumscribed by the conditions of the statutes 24 granting it (see (2008) 4 SCC 720 paras 23 to 25). It is also equally well settled that where the statue does not place any limitation and restriction to the scope and width of the appeal it shall be construed that the appeal will provide the right of rehearing on law as well as on facts. There is no dispute that an appeal is a creature of statute, and a litigant does not have an inherent right to prefer an appeal in respect of any order under a statue. These principles ought to be kept in mind in order to answer the issue at hand.
39. We have quoted the provisions of Section 19 FCA in the foregoing paragraphs. Section 19 (1) of the FCA provides forum of appeal against every judgment or order passed by Family Court except when the appeal is directed against the following:
(i) An Interlocutory Order; or
(ii) From a decree or order passed with the consent of the parties; or
(iii) From an order passed under Chapter IX of the Code of Criminal
Procedure, 1973.
It is explicit that an Interlocutory Order stands specifically excluded from the category of judgment or order appealable under Section 19 of the FCA.
40. We have profusely discussed the rival opinions of different High Courts on the question of maintainability of such an appeal under Section 19 (1) of the FCA against an order passed under Section 24 of the HMA.
41. Learned Amicus Curiae has placed certain decision of Superior Courts of other jurisdictions. He has also relied on an Article by Willis P. Whichard. In the article titled as Appealability in North Carolina: Common Law Definition of the Statutory Substantial Rights Doctrine by Willis P. Whichard [Law and Contemporary Problems, 47, no. 3(1984):123-55], the author after referring to various case laws noted that an interlocutory order or judgement under North Carolina law is one which does not determine the issues but directs some further proceedings preliminary to final decree. It was further stated that as a general rule, there is no right of immediate appeal from interlocutory orders or judgements and they may be reviewed only upon appeal from a final judgement. The exceptional circumstances under which interlocutory orders are immediately appealable, as a matter of right are determined by statute. It was further noted that appeals of right may be taken from interlocutory orders or judgments which (1) in effect determine the action and prevent a judgment from which an appeal might be 25 taken; (2) discontinue the action;(3) grant or refuse a new trial; (4) adversely rule on the jurisdiction of the court over the person or property of the defendant; (5) are final judgements as to fewer than all claims or parties, and in which it is determined in the judgment that there is no just reason for delay or (6) affects a substantial right. After noticing a few more judgements and propositions the author was of the view that in this context the basic rule for guidance in North Carolina is that appeal is available whenever an interlocutory order affects a substantial right. As to what constitutes a substantial right, the author took note of the observation of the Supreme Court in the case of Waters v. Qualified Personnel Inc., 294 N.C. 200, 208,240 S.E.2d 338, 343 (1978), which is extracted and reads thus:
"Admittedly the "substantial right" test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought to be entered."
In the said article it was further recorded as follows:-
One consideration repeatedly emphasised by the appellate courts is that the order affecting a substantial right must be such that it will work injury to the appellant if not corrected before appeal from final judgement. In addition, the right must be intrinsically substantial, irrespective of whether it will be lost or prejudiced absent immediate appeal.
Rarely have the North Carolina courts addressed this requirement expressly. Usually the Courts merely state that a right is or is not substantial. The Supreme Court has, however, quoted with approval the following definition of a substantial right "substantial right" : "a legal right affecting or involving a matter of substance as distinguished from matters of form: right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right."[Oestreicher v. American Nat'l Stores, 290 N.C. 118, 130, 225 S.E. 2d797, 805 (1976).
In a survey by the author of the case laws for enhanced understanding of when interlocutory order affects a substantial right, the author under the heading "Family Law" took note of some case laws which held that maintenance pendente lite was an interlocutory order hence not appealable. Reference was made to the judgment of Stephenson v. Stephenson [55 N.C. App 250 285 S.E 2d 281 (1981)] wherein the Court of Appeals in North Carolina held that the orders and awards pendente lite, although previously 26 occasionally held to involve a substantial right, would no longer be appealable on that basis and this change was brought about in the prior practice to avoid delays which the depriving parties has to face because of the appeal preferred . The relevant part of the judgement, as quoted in the article reads as follows:
"Orders and awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to G.S. 7A- 27(d)."
The learned Author has further gone to quote the observation as stated by the Supreme Court in Veazey vs City of Durham, 231 N.C. 357, 57, S.E.2d 377 (1949), "[t]here is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Learned Amicus Curiae has thus submitted that the avoidance of deprivation due to delay could be one for the purposes of the rule that interlocutory orders have not made appealable under Section 19(1) of the F.C.A.
42. The above opinion relying upon the quoted therein, authorities clearly indicate that an order which does not affect the substantial rights of parties and does not have the traits and trappings of finality have to be treated as an interlocutory order.
43. We have in the body of our judgment referred to at length the aims and objects of FCA and the appeal provisions under Section 19(1) therein in the context of the provision of the HMA also quoted hereinabove. We also had the benefit of analyzing the line of reasoning rendered by different High Courts on the question of maintainability of such an appeal. While decisions of different High Courts following the Full Bench judgment of Allahabad High Court in the case of Smt. Kiran Bala Srivastava(supra) have taken a view that an appeal against an order under Section 24 of the HMA would be maintainable under Section 19(1) of the FCA, the other line of decisions have held on to the same view as rendered in the Full Bench judgment of the Orissa High Court in Swarna Prava Tripathy(supra), wherein the appeal was held as not maintainable. We have also gone into the reasoning as to why the contrary points of view have been held by the rival set of decisions. Some decisions of the other High Courts have also taken into consideration the appeal provision under Section 28 of HMA wherein sub-Section (1) provides for appeal against decrees while sub-Section (2) provides for appeal against orders passed under Section 25 or Section 26 of the HMA. The fundamental question that stems out of such discussion is whether an order under Section 24 could be treated as a judgment or order but not an 27 'Interlocutory Order' excluded under Section 19(1) of the FCA. We have also gone through the decision of the Apex Court relied upon by both the Full Benches of Allahabad High Court and Orissa High Court to hold either way on the maintainability of an appeal under Section 19(1) of the FCA against an order passed under Section 24 of the HMA.
44. We find that the expression "Interlocutory Order" as interpreted in the case of V. C. Shukla (supra) takes into consideration not only the scheme and object of the Special Court Act, 1979 which had the objective of expeditious trial and quick dispatch of cases but also the view that the judgments rendered by the Apex Court in the case of Amar Nath (Supra) and Madhu Limaye (Supra) on interpretation of the expression "interlocutory order" used in Section 397(2) of Cr.P.C, pursuant whereto the Apex Court held that it would have no application to interpretation of Section 11(1) of Special Courts Act, which expressly excluded the Code. The wordings of Sub-Section 19(1) of the FCA are much nearer and in fact more limiting when compared to Section 11(1) and (2) of the Special Courts Act, 1979. Section 19 (1) of the FCA, as a matter of fact, has a non-obstante clause which excludes anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law while providing for a forum of appeal against every judgment or order, not being an "Interlocutory Order" of a Family Court to the High Court both on facts and law. Therefore, it can be safely said that the decisions rendered in the context of provisions under the Code of Civil Procedure or the Code of Criminal Procedure, 1973 or in any other law would not be applicable while interpreting the provisions of Section 19(1) of FCA given the scheme and object of the FCA and HMA both for expeditious disposal of matrimonial disputes. The opinion of the Author Willis P. Whichard in the Virginia Law Register relying on the decision of the foreign jurisdictions also unequivocally indicate that an order which does not affect the substantial rights of parties and does not have the traits and trappings of finality had to be treated as interlocutory order.
45. In the case of V.C. Shukla (supra), the Apex Court at Para- 34 of the report quoted above culled out the proposition which emerge upon review of the decisions rendered by the Federal Court and English Courts that an order is not a final order but an interlocutory order if it does not determine or decide the rights of parties once for all. An order which does not determine the right of the parties but only one aspect of the suit or the trial is an interlocutory order. The concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an 28 interlocutory order. One of the test generated by the English Courts and the Federal Court is to see that if the order is decided in one way, it may terminate the proceedings but if it decided in another way, then the proceedings would continue. Such an opinion in respect of interlocutory order in Cr.P.C could be used in a much wider sense, so as to include even intermediate or quasi final orders. The Apex Court also observed that even if the Special Courts Act does not permit an appeal against an interlocutory order the accused is not left without any remedy, because in suitable cases, the accused can always move the Apex Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. It therefore could not be said that not allowing an appeal against an order framing charges would work serious injustice to the accused. Similar opinion can be rendered while interpreting the expression 'interlocutory order' under Section 91(1) of the FCA. If the forum of appeal is denied to a party under Section 19 of the FCA, it is not that he is left without any remedy. The aggrieved party can approach this court under Article 227 of the Constitution of India. It cannot be gainsaid that considering the pendency of cases and appeals in particular, whether on the criminal side or on the civil side in various High Courts including this Court, an appeal against an order under Section 24 of the HMA would take an indefinite length of time to be finally decided. Such an appeal would mean a decision by the appellate court both on facts and in law. A situation may arise for example, where a spouse, who has got the benefit of an order of maintenance pendente lite in her favour would have to wait even after the final disposal of the matrimonial suit itself on the outcome of the appeal preferred by the aggrieved spouse/husband against such an order granting maintenance pendente lite and cost of proceedings. The whole aim and purpose of FCA and HMA for expeditious disposal of the matrimonial proceedings and also the petition relating to maintenance pendent lite and cost of proceedings would get indefinitely delayed thus causing disservice to the cause of justice.
46. In view of the judgment rendered by the Apex Court in the case of Rajnesh Vs. Neha & Anr. now the Family Courts are obliged to decide petitions for interim maintenance in a summary nature objectively based on the disclosure made by the parties on affidavit. An Appellate Court while finally adjudicating an appeal against such an order may ultimately substitute its views to that of the family Court rendered on objective factors based on the disclosure made by the parties on affidavit. This lengthy long drawn proceedings before 29 the appellate court would render the whole aim and object of the FCA and the HMA otiose and frustrated.
47. We have taken note of the decisions rendered by the Apex Court on the principles of purposive construction while interpreting a statute. The courts are entitled to look into the object and purpose of the enactment. The provisions relating to grant of maintenance pendent lite and litigation expenses are founded on principles akin to Art. 39A of the Constitution of India and the right to access to justice and hence must receive the importance attached to the rights flowing therefrom. The provisions of Section 19 of the FCA, therefore, cannot be interpreted in such an expansive manner, rather the interpretation has to be done in a purposive manner keeping into mind the object and purpose of the enactment for speedy disposal of matrimonial disputes and proceedings relating to maintenance. Applying the above tests to an order passed under section 24 of the HMA it can be safely inferred that an order granting or refusing to grant maintenance pendente lite to a spouse does not have any effect on any substantial right of the aggrieved party nor does have the traits and trappings of finality. In fact, an order under section 24 HMA does not have any effect on the final decision of the lis sought to be decided by the Family Court.
48. Having regard to object and purpose of the FCA and HMA i.e. speedy settlement of matrimonial disputes, which is also reflected in the proviso to section 24 of the HMA, section 19 of the FCA must receive an interpretation which furthers the above intent of the legislation. Therefore, providing for an appeal or interpreting that an appeal is maintainable against an order passed under section 24 of the HMA would frustrate the purpose for which it was enacted and might unnecessarily delay the main proceedings before the Family Court. Grant or refusal of maintenance pendente lite can at best be an order which causes inconvenience to some extent to the aggrieved party but in no way causes any serious prejudice to the aggrieved party. The HMA or the FCA does not provide for any consequences for non-compliance of an order under section 24 HMA on the merit of the main matter except that it can be enforced in accordance with law.
49. The order on an application for grant of interim maintenance certainly is an order which does not in any manner crystallize the rights of any party. It's a temporary arrangement. Pronouncement of the final judgment and decree terminates the operation of the order granting the interim maintenance. The life of an order granting interim maintenance is till the pendency of the proceedings, just like any other interim or interlocutory order. As observed 30 hereinabove, in view of the judgment of Apex Court in the case of Rajnesh (supra), it cannot be said that the Family Court while deciding an application for interim maintenance has to arrive at a subjective satisfaction regarding the matter, rather now the order is to be based on objective assessment and hence the scope of the High Court to interfere with such an order is limited. The High Court is not required to re-evaluate the entire matter and an order granting / refusing to grant interim maintenance is not to be tested by an appellate court either on law or facts or both. It can be reviewed by the Superior Court on jurisdictional issues or on grounds of perversity which can be done under Article 227 of the Constitution of India.
50. An expansive interpretation of section 19 of the FCA by which it is held that an appeal has been provided against an order granting / refusing to grant interim maintenance, will defeat the object of the Act i.e., speedy disposal of disputes. The appellate court would be under a duty to reappraise the pleadings and the affidavit and return an independent finding which would reopen the issue again and, in all probability, delay the entire exercise. Such an interpretation runs contrary to the object of the FCA and section 24 of the HMA and thus needs to be avoided.
51. The right of an appeal has been circumscribed by section 19 FCA expressly prohibiting an appeal from an interlocutory order and the said term "interlocutory order" has to be construed in its natural sense so as to be in conformity with the object and purpose of the FCA. We are not oblivious or unmindful of the legal position that the provisions relating to jurisdiction of the Family Courts must receive liberal and expansive interpretation but at the same time the provisions relating to appeal must not be interpreted in a manner which would run contrary to the scheme of the enactment more so in view of the fact that the provisions of section 19 FCA has put restrictions on the scope of appeal against interlocutory orders and expressly excludes the applicability of the CPC, CrPC and all other laws. Thus, the provision requires to be interpreted by using the principles of harmonious construction. By applying the same it can safely be deduced that an order on an application for grant of interim maintenance, being an interlocutory order, is not appealable.
52. In view of what has been held hereinabove with due respect, in our humble opinion, the decision of this Court in the case of "Rachana Pandey v. Sanjeev Singh" can be said to be per incuriam. We accordingly, hold and declare that an order passed by a Family Court under section 24 HMA being an interlocutory order is not amenable to the appellate jurisdiction of this Court 31 under section 19 of the FMA. Hence, the present appeal is held to be not maintainable.
However, the appellant is at liberty to raise his grievances in an appropriate proceeding under Article 227 of the Constitution of India.
53. Before parting, we record our deep appreciation for the valuable assistance rendered by learned Amicus Curiae, Mr. Indrajit Sinha in deciding such an important question of law. We also record of our appreciation for the valuable assistance rendered by learned counsel for the appellant, Mr. Soumitra Baroi and Mr Ashutosh Anand, learned Advocates.
54. Learned Registrar General is required to circulate the judgement to the concerned officials of the Registry. Let a copy of the judgment be also sent to the Director, Judicial Academy.
(Aparesh Kumar Singh, J) (Deepak Roshan, J) jk/