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Madhya Pradesh High Court

Vinod Kumar Pillai vs Smt. Roshani Pillai on 29 July, 2015

                          RP-399-2015
             (VINOD KUMAR PILLAI Vs SMT. ROSHANI PILLAI)


29-07-2015
           HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
                              AT JABALPUR

                   REVIEW PETITION NO. 399 OF 2015

                        Vinod Kumar Pillai

         Versus.
                        Smt. Roshani Pillai

For petitioner : Smt. Shobha Menon, Sr Advocate with
Shri Rahul Choubey, Advocate.

For respondent : Shri S.P. Tripathi, Advocate

                             ORDER

(29.07.2015)

1. This review petition has been filed for reviewing the order dated 25.06.2015 passed in writ petition No.3441/2014.

2. The respondent (wife) filed a petition for divorce. She also filed an application under Section 24 of the Hindu Marriage Act for grant of interim maintenance. The Family Court vide order dated 30.01.2014, awarded an interim maintenance at the rate of Rs.8,000/- per month in favour of the respondent. Against the aforesaid order, the present petitioner filed a petition under Article 227 of the Constitution of India questioning the grant of interim maintenance at the rate of Rs.8,000/- per month. That writ petition has been dismissed by this Court holding that against the grant of interim maintenance by the Family Court, the writ petition is not maintainable because the order passed by the family Court in granting interim maintenance cannot be treated as interlocutory order.

3. Learned Senior counsel appearing on behalf of the petitioner has submitted that the Division Bench of this Court in the case of Aruna Choudhary vs. Sudhakar Choudhary reported in 2004 (2) MPLJ 101 has specifically hold that order of grant of interim maintenance under Section 24 & 25 of the Hindu Marriage Act is an interlocutory order hence, against the aforesaid order the writ petition is maintainable. That judgment has not been considered by this Court while passing the order under review. This is an error apparent on the face of record hence, the review petition be allowed on this ground alone. In support of her contention learned counsel for the petitioner relied on the following judgments.

1. Aakansha Shrivastava vs. Virendra Shrivastava and another reported in 2010 (3) MPLJ 151.

2. Ramavtar S/o Bhagwandas Verma vs Smt. Chintamani reported in 2004 (2) MPLJ 87.

3. Rajesh Shukla vs. Smt. Meena W/o Rajesh Shukla and another reported in 2005 (2) MPLJ 483.

(4) Neelam Kumari Sinha vs. Shree Prashant Kumar reported in AIR 2010 Patna 184.

4. Contrary to this, learned counsel appearing on behalf of the respondent has contended that the order of interim maintenance passed by the family Court under Sections 24 & 25 of the Hindu Marriage Act. The order cannot be termed as an interlocutory order hence, an appeal is maintainable. This Court has rightly passed the order. In support of his contentions learned counsel for the respondent relied on the following judgments. (1) Shah Babulal Khimji vs. Jayaben D. Kania and another reported in AIR 1981 SC 1786.

(2) Megha Gupta (Smt) vs. Vikas Gupta reported in 2013 (II) MPWN 97.

5. This Court after relying the Division Bench judgment of this Court in the case of Aruna Choudhary (supra) has held that the order of interim maintenance which affects the rights of the parties cannot be treated as an interlocutory order, however that order of interim maintenance was passed in exercise of power under Section 125 of Cr.P.C. In the present case, the family Court granted interim maintenance in exercise of powers under Section 24 of the Hindu Marriage. The Division Bench of this Court has specifically held that the order of grant of interim maintenance passed in exercise of powers under Section 24 of the Hindu Marriage Act would be treated as an interlocutory order hence, the appeal or revision is not maintainable. Against the order under Section 19 (5) of Family Court Act., the writ petition is maintainable. The relevant findings of the Division Bench are as under:-

“34. Under Section 19 (5) of the Act, order of interim maintenance under Sections 24 and 25 of Hindu Marriage Act, would be treated as interlocutory order, therefore, against such an order, neither appeal lies nor a Revision. The only remedy available to an aggrieved party against such an interlocutory order is to challenge the same by filing a writ petition under Art. 227 of the Constitution of India.”

6. Similar view has been taken by the Full Bench of Patna High Court in the case of Neelam Kumari Sinha vs. Shree Prashant Kumar reported in AIR 2010 Patna 184 in which it has been held as under:-

“15. In view of the aforesaid analysis, it is held that an order passed by the learned Principal Judge, Family Court under Section 24 of the 1955 Act would be amenable to writ jurisdiction under Article 227 of the Constitution of India.

Thus the conclusion recorded in M.A. No.654 of 2009 does not lay down the law correctly and is hereby overruled.”

7. The Full Bench of Allahabad High Court has taken a opposite view as mentioned by the learned counsel for the respondent.

However, in my opinion, the judgment passed by the Division Bench of this Court in case of Aruna Choudhary (supra) is binding on the single Bench.

8. The Supreme Court in the case of Kamlesh Verma vs. Mayawati and others reported in (2013) 8 SCC 320 has laid down the following principles when the review is maintainable.

“The principles relating to review jurisdiction may be summarised as follows:-

When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The word “any other sufficient reason” have been interpreted in Chhajju Ram (1921-22) 49 IA 144 and approved by this Court in Moran Mar Basselios Catholicos, AIR 1954 SC 526 to mean “ a reason sufficient on grounds at least analogous to those specified in the Rule.”

9. On the basis of aforesaid principles, in my opinion, there is error apparent on the face of record because this Court has not considered the judgment of the Division Bench passed in the case of Aruna Choudhary (supra) while passing the order under review. Consequently, the review petition is allowed. The order dated 25.06.2015 passed by this Court in writ petition No.3441/14, is hereby recalled. The writ petition is restored to file.

(S.K. Gangele) Judge pb