Madras High Court
N. Balasubramanian vs V. Chitra on 29 April, 1992
Equivalent citations: II(1992)DMC423
JUDGMENT Abdul Hadi, J.
1. Pursuant to the office note the abovesaid C.R.P.S.R. is posted before us regarding its maintainability.
2. The abovesaid proceedings by the husband is against the order in I. A. No. 732 of 1991, granting interim maintenance Under Section 24 of the Hindu Marriage Act, pending the main litigation viz. O.P. 758 of 1991 on the file of the Additional Judge, Family Court filed by the respondent-wife for dissolving the marriage between the said parties on the ground of cruelty.
3. This proceeding is sought to be filed Under Section 19(1) of the Family Courts Act. No doubt Section 19 of the Family Courts Act has undergone change by virtue of the Family Courts (Amendment) Act, 1991 (Central Act No. 59 of 1991) and the said amendment has come into force on 28.12.1991. But the said amendment does not in any way alter the abovesaid Sub-Section (1) of Section 19 of the said Act. The said Sub-Section (1) while providing that an appeal shall lie from every judgment or order of a Family Court to this Court says that such an appeal has not lie if the order in question is an interlocutory order. The abovesaid order passed in LA. No. 732 of 1991 directing the petitioner husband to pay Rs. 500/- per month to the, respondent-wife as interim maintenance pendente lite under the abovesaid Section 24 of the Hindu Marriage Ast is certainly and interlocutory order and so an appeal Under Section 19(1) will not lie against the said order.
4. But the contention of the learned Counsel for the petitioner is that a revision would lie against the said order and that too before a Division Bench of this Court in view of the abovesaid amendment of the other parts of the abovesaid Section 19, particularly the new Sub-Section (4) which was introduced by the above said amendment. The said Sub-Section (4) runs as follows :-
"(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 for the purpose of satisfying itself as to the correctness, legality or properiety of the order not being an interlocutory order and as to the regularity of such proceedings".
5. It is clear that the abovesaid new Sub-Section (4) only provides for a revision against an order under Chapter IX of the Criminal Procedure Code 1973 (which begins with Section 125 thereof) providing for maintenance to wives and others generally. But the abovesaid order in I.A. No. 732 of 1991 is not an order under the abovesaid Chapter IX of the Criminal Procedure Code. 1973 in which case the order would also be a final order. As already stated the order in LA. No. 732 of 1991 is only an interim order pending a litigation with reference to which the abovesaid Sub-Section (4) will not apply.
6. There is also no other provision under the Family Courts Act providing for a revision against such interim orders. In fact the old Section 19(4) which is same as the present Section 19(5) after the above said amendment, provides that, except as aforesaid no appeal or revision shall lie to any Court from any judgment, order or decree of Family Court. So even Section 115 C.P.C. will not apply. Hence a revision will not lie against the order in I.A. No. 732 of 1991 (though before coming into force of the Family Courts Act, a revision may lie after the amendment of Section 28 of the Hindu Marriage Act of 1976).
7. Further the old Section 19(5) which is same as the present Section 19(6) after the abovesaid amendment only provides that an appeal preferred under Sub-Section (1) shall be heard by a Bench consisting of two or more Judges. So only, when an appeal is filed Under Section 19(1) it has to be heard by a Bench consisting of two or more Judges and the term "appeal" used in the said Sub-Section by no stretch of imagination be taken as including a revision also.
8. The net result is the present C.R.P.S.R. is not maintainable at all under the Family Courts Act.
9. Whether the petitioner can seek relief against the above said order, in this Court invoking Article 227 or Article 226 of the Constitution of India is a question to be explored by the petitioner if he so desires and if that could be done it is also open to him to convert the present C.R.P.S.R. into a pro- ceeding under any of those two articles.
10. The office is directed to return the memorandum of C.R.P.S.R. the petitioner.