Allahabad High Court
Liaqat Hussain vs Jainab Parveen And Another on 3 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2497
Bench: Naheed Ara Moonis, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 46 Case :- FIRST APPEAL DEFECTIVE No. - 300 of 2020 Appellant :- Liaqat Hussain Respondent :- Jainab Parveen And Another Counsel for Appellant :- Arun K. Singh Deshwal Hon'ble Naheed Ara Moonis,J.
Hon'ble Vivek Varma,J.
The instant first appeal has been filed under Section 19 of the Family Courts Act on behalf of the appellant Liaqat Hussain, against the judgement and order dated 28.8.2020 passed by the Principal Judge, Family Court, Amroha in Case No. 173 of 2017 (Smt. Zainab Parveen Vs. Liaqat Hussain) whereby the application moved by the respondent-wife claiming maintenance for herself and her minor daughter under Section 125 of the Code of Criminal Procedure has been allowed and the appellant-husband was directed to pay maintenance at the rate of Rs. 7000/- per month to the wife Smt. Zainab Parveen and Rs. 5000/- per month to the minor daughter Aleema Hussain to be paid by the appellant by the 10th of each month from the date of order.
The Stamp Reporter of this Court raised objections in respect of competence of this appeal as not maintainable in view of Section 19 of the Family Courts Act, 1984.
The question which arises in the present appeal is whether an appeal would lie under Section 19 of the Family Courts Act, 1984 against an order passed by the Family Court in a proceeding filed under Chapter IX of the Code of Criminal Procedure (Section 125 to 128).
Before adverting to the maintainability of the appeal, the factual background of the case is that the appellant was married with the respondent-Zainab according to Muslim custom and rites on 31.3.2013 and out of their wedlock a female child was born, but on account of matrimonial bickering, the respondent-wife left the house of her husband and started living in her parental house under compelling circumstances and as she could not maintain herself and her minor daughter aged 3 years, she moved an application under Section 125 Cr.P.C. before the Family Court, Amroha on 01.9.2017 claiming maintenance from the appellant. After considering the facts of the case, the learned Family Judge passed an order on 28.8.2020 granting maintenance at the rate of Rs. 7,000/- to the wife and Rs. 5000/- to the child per month from the date of order. Being aggrieved by the order dated 28.8.2020, the appellant has come up before this Court by filing the present appeal under Section 19 of the Family Courts Act, 1984.
The Family Courts Act, 1984 was enacted to promote speedy settlement of dispute relating to marriage and family affairs. Section 7 of the Act deals with the jurisdiction of the Family Court. By virtue of Section 7(2)(a) of the Act, the proceeding under Chapter IX Section 125 Cr.P.C. shall lie before the Family Court. It would be apposite to reproduce section 7(2)(a) of the Act.
Section 7(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974);
Section 19 of the Act deals with the appeals and revisions, which falls under Chapter V of the said Act, which is quoted herein below:
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 judgement or order, not being an interlocutory order of a Family Court to the High Court both on facts and 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 Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(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."
It is relevant to state that Chapter V of the Act contains only one section with the heading appeals and revisions, but Section 19 per se does not use expression revision.
A bare reading of Section 19 of the said Act elucidates that under sub-section (1) save as provided in sub-section (2), an appeal lies from every judgement or order of the Family Court to the High Court, both on facts and on law. This right of appeal comes with one limitation that it does not lie against an interlocutory order. Sub-section (2) of Section 19 of the said Act specifically prohibits any appeal from an order passed under Chapter IX of the Code of Criminal Procedure. Thus, a conjoint reading of sub-section (1) and sub-section (2) of Section 19 of the Act makes it clear that the appeal would not be maintainable before this Court from an order under Chapter IX of the Cr.P.C.
Chapter IX of Code of Criminal Procedure, 1973 contains four provisions, i.e. Section 125 to 128 Cr.P.C., which are related to the order for maintenance of wife, children and parents. For the sake of brevity, the provisions relating to maintenance under Section 125 Cr.P.C. reads as under:
"125. Order for maintenance of wives, children and parents.
(1)If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation:- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b)" wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of order, or if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's (allowances for the maintenance or the interim maintenance and expenses of proceeding, as the case may be) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
Upon plain reading of Section 125 Cr.P.C. it is clear that the provision is made to protect the weaker spouse from her vagrancy and merely because the appeal is not maintainable against the order passed under Section 125 Cr.P.C., as mentioned in sub-section 2 of Section 19 of the Family Courts Act. a person is not left as remedy less. The legislature has taken care of such a situation and hence under Section 19(4) of the Act, it has been provided that 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 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.
The sub-section (2) of Section 19 delineates that 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. (emphasis laid) The scope of Section 19 of the Family Courts Act came up before the Division Bench of Delhi High Court in Manish Aggarwal Vs. Seema Aggarwal and others (FAO No. 288 of 2012) decided on 13.09.2012. The Court has also elaborately discussed with respect to three kinds of judgement, viz, final judgement, preliminary judgement and intermediary or interlocutory judgement in the context of filing appeals and revisions.
The Court held thus:
"We, thus, conclude as under:
(i) In respect of orders passed under Sections 24 to 27 of the Hindu Marriage Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.
(ii) No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.
(iii) The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. (Emphasis laid)
(iv) As a measure of abundant caution, we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act."
Thus the remedy against the order passed by the Family Court under Section 125 of Chapter IX of Cr.P.C. has been specifically provided under Section 19(4) of the Act, which confers powers on the High Court to examine the correctness, legality or propriety to the order passed by the Family Court. When the Family Court is dealing with the proceeding under Chapter IX of Cr.P.C. exercisable by the Magistrate of the first class in such contingency criminal revision would be maintainable against both interim as well as final order passed under Section 125 Cr.P.C.
An order which substantially affects the rights and decides certain rights of the parties, it has been held not to be an interlocutory order so as to bar revision in view of the pronouncement by the Hon'ble Apex Court in Amarnath and others Vs. State of Haryana and others, AIR 1977 SC 2185.
In the above conspectus, an application for interim maintenance under Section 125 Cr.P.C. is a separate proceeding to be disposed of while pending final order and any such order of interim maintenance would be intermediate or quasi judicial order, effecting the vital rights of the parties.
In view of the verbose and prolix discussion, while upholding the objection of the Stamp Reporter, the appeal is hereby held as not maintainable under Section 19(1) of the Family Courts Act, 1984 qua proceeding under Chapter IX of the Cr.P.C. (Section 125-128) in view of the mandate of sub-section 2 of Section 19 of the said Act. The issue determined above, does not relate to the merits of the case under appeal.
Accordingly, the instant appeal is dismissed as not maintainable.
The appellant is at liberty to file a criminal revision under Section 19(4) of the Family Courts Act, 1984, which shall be reported by the Stamp Reporter of the Court as per the Allahabad High Court Rules, 1952. If the issue of limitation arises, it would be considered by the court concerned.
Office is directed to return the certified copy of the impugned order as per Rules of the Court after retaining the photo copy thereof on record.
Order Date :- 3.12.2020 Ishrat