Rajasthan High Court - Jaipur
Sanjeev Kumar Pareek vs Smt. Shubh Laxmi Pareek on 5 December, 1988
Equivalent citations: 1988(2)WLN687
Author: N.M. Kasliwal
Bench: N.M. Kasliwal
JUDGMENT N.M. Kasliwal, J.
1. This revision by Sanjeev Kumar husband is directed against an order passed by the Judge, Family Court, Jaipur dated November 16, 1987.
2. Brief facts of the case are that the petitioner husband filed a petition under Section 12(1)(d) of the Hindu Marriage Act. 1955 (here in after referred to as 'the Act') for granting a decree for nullity of marriage between the parties. The wife Smt. Shubh Laxmi filed an application under Section 24 of the Act for granting interim maintenance and litigation expenses during the pendency of the petition. The Judge Family Court in his order dated November 16, 1987, held that the applicant wife would be entitled to maintenance at rate of Rs. 50/- p.m. from the date of filing of the application, dated July 4, 1987. The wife has also been allowed expenses of herself and one more person accompanying her of coming to Jaipur and going back to Gangapur City on every date of hearing. The husband aggrieved against the above order has filed the present revision.
3. Mr, Suresh Pareek appearing on behalf of the wife non-petitioner raised a preliminary objection that the present revision is not maintainable. In this regard it was submitted that after an amendment in the Hindu Marriage Act in 1976, any order passed under Section 24 of the Act is longer appealable under Section 28 of the Act. Radhey Shyam Gupta v. Smt. Laxmi Bai AIR 1977 M P. 271 and Smt. Sushil Malhotra v. Capt. Satya Pal Malhotra 1977 HLR 453 have been cited in support of the above contention. It was further submitted that so far as the Family Courts Act; 1984 is concerned, Section 19 Under Chapter V deals with the provisions of appeal. It has been submitted that under the above provision it has been clearly provided that no appeal shall he against an interlocutory order of a Family Court to the High Court and under Sub-section (4) of Section 19 it has been clearly provided that except as aforesaid no appeal or revision shall He to any Court from any judgment, order or decree of a Family Court. It was thus contended that neither any appeal nor revision against the order of the Family Court passed under Section 24 of the Act was maintainable in the High Court.
4. Mr. R.K. Pareek learned Counsel for the petitioner, on the other hand, submitted that the impugned order passed under Section 24 of the Act was not interlocutory order and as such every order passed by the Family Court, which was not interlocutory in nature, is appealable under Section 19 of the Family Courts Act.
5. In order to decide the above controversy it would be proper to mention Section 19 of the Family Courts Act, which reads as under:
Section 19. Appeal (1) Save as provided in Sub-section (2) and not with standing any thing contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, or in any other law an appeal shall lie from-every judgment or" order, not being in 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;
[3] Every appeal under this section shall be prepared within a period of thirty days from the date of the judgment or order of a Family Court;
[4] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of Family Court;
[5] An appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or more judges.
6. It May also be mentioned that Section 20 of the Family Court Act clearly provides that the provision of this Act shall have effect not withstanding any thing inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Now, there cannot be any controversy that so far as the provisions of the Act are concerned after amendment of Section 28 in 1976 there is no provision of appeal against orders passed under Section 24 of the Act. Thus, there is no right of appeal against any order passed under Section 24 of the Act.
7. Now, we have to consider the provisions of the Family Courts Act As already mentioned above Section 20 of the Family Courts Act clearly provides that the provisions of this Act have over-riding effect not with standing any thing inconsistent contained in any other law. Admittedly, the present proceedings were pending before the Family Court and as such-any order passed by the Family Court would be governed for appeals as provided under Section 19 of the Family Courts Act. A perusal of Section 19 goes to show that an appeal shall lie from every judgment or order of the Family Court to the High Court but the only restriction is that it should not be an interlocutory order. In my view an order passed under Section 24 of the Hindu Marriage Act cannot be termed as interlocutory order. The Hindu Marriage Act, which deals with the problems of spouses clearly provides, for the grant of interim maintenance under Section 24 of the Act. So far as the controversy regarding interim maintenance & litigation expenses is concerned, it is finally determined by the Family Court in case any application is filed under Section 24 of the Act. Thus, such an order cannot be considered as an interlocutory order. Thus the petitioner in the present case was entitled to file an appeal before High Court against the order of Family Court dated November 16, 1987, passed in the present case.
8. How ever there is an insurmountable difficulty in entertaining the present revision filed by the petitioner under Section 115, CPC against the order of the Family Court dated November 16,1987. Sub-section (3) of Section 19 of the Family Courts Act clearly provides that the appeal shall be preferred within a period of 30 days from the date of the judgment and order of the Family Court. Sub-section (5) further provides that an appeal preferred under Sub-section (5) shall be heard by a Bench consisting of two or more Judges. The petitioner has filed this revision under Section 115, CPC on March 17, 1988 and has sought limitation as 90 days which is provided for a revision under Section 115 CPC. The petitioner has not filed this appeal under Section 19 of the Family Courts Act but has filed revision under Section 115, CPC and that also calculating the limitation as 90 days. In this view of the matter neither any revision is maintainable against the order of the Family Court nor it has been filed within 30 days and as such this revision being incompetent is liable to be dismissed.
9. Apart from the view taken by me as mentioned above I have also gone through the merits of the order by which the compensation has been awarded as Rs. 250/- p.m. the Judge, Family Court in this regard has found that income of the husband Sanjeev Kumar was not less than Rs. 1,000/-, in these circumstances, I find no ground to interfere with the order on merits also.
10. In the result, this revision having no force, is dismissed with no order as to costs.