Karnataka High Court
T.V. Satyanarayana vs Subba Aruna Meenakshi on 26 February, 1988
Equivalent citations: ILR1988KAR1074
JUDGMENT Rama Jois, J.
1. In this matter, which is presented as an appeal against an order of the Family Court, Bangalore, granting interim maintenance to the respondent on an application presented under Section 24 of the Hindu Marriage Act, the following question of law arises for consideration:
"Whether an appeal lies against an order made by the Family Court on an application presented under Section 24 of the Hindu Marriage Act granting interim maintenance under Section 19 of the Family Courts Act?"
2. The facts of the case, in brief, are as follow ; A petition presented under Section 13 of the Hindu Marriage Act praying for grant of a decree of divorce against his wife - the respondent, is pending before the Family Court, Bangalore. During the pendency of that petition, the respondent made an application under Section 24 of the Hindu Marriage Act praying for grant of alimony pendente lite and also to direct the appellant to pay the amount required for the legal expenses. The petition was originally presented before the City Civil Court and the proceedings stood transferred to the Family Court after it was established. The Family Court allowed the application by its order dated 4-9-1987 and directed the appellant to pay an interim maintenance of Rs. 200-00 per month and also an amount of Rs. 1,500-00 towards legal expenses to the respondent. Aggrieved by the said order, the appellant has presented this petition under Section 19(1) of the Family Courts Act ('the Act' for short). The appeal is not registered as the office has raised an objection that in view of Section 19 of the Act, the appeal is not maintainable. It is in these circumstances, the question of law, set out above, arises for consideration.
3. Sri G.S.Rao, the learned Counsel for the appellant, and Sri B.P. Holla, Senior Counsel who was directed to assist the Court as Amicus Curiae, have addressed their arguments with reference to the question arising for consideration.
4. In order to appreciate the question arising for consideration in the light of the arguments addressed by the learned Counsel, it is necessary to set out the provisions of Section 24 of the Hindu Marriage Act. It reads:
"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 proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of 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."
The above provision confers power on the Court having jurisdiction to entertain petitions under the various provisions of the Act to make an order directing a party to pay interim maintenance and also to direct such party to pay the expenses required for the litigation. Such an order continues to be in force till the termination of the main proceedings and comes to an end with the disposal of the main case.
5. Even before the coming into force of the Act, a question had arisen in the case of SUBHASINI v. B.R. UMAKANTH, Subhasini v. Umakanth (Ref), as to whether a revision was maintainable against an order of the Family Court under Section 24 of the Hindu Marriage Act on the ground that no appeal was maintainable. This Court considered the question in the light of the amendment to Section 28 of the Hindu Marriage Act by Act 68 of 1976. The relevant portion of the judgment reads:
"4.....Section 28 of the said Act was amended by Act 68 of 1976. As the provisions stood earlier thereto, an appeal was maintainable against every order made under the Act except in respect of order for costs. But by virtue of the amendment, an appeal was provided against all the decrees made by the Court in a proceeding under the Act except that no appeal was permissible on the subject of costs only. So far as the orders were concerned. Section 28(2) provided that orders made by Court in any proceedings under the Act under Section 25 or Section 26 and if they were not interim orders, were appealable.
xxx xxx xxx The revision petition was therefore maintainable. No appeal was competent against the order made by the Civil Judge."
Thus, the Division Bench held that no appeal was maintainable against an interlocutory order made under Section 24 of the Hindu Marriage Act end consequently the revision petition was maintainable
6. The Act has been enacted by the Parliament and its Preamble indicate that it is a law intended 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. The relevant part of Section 7 of the Act which confers jurisdiction on the Family Court reads:
"7. (1) Subject to the other provisions of this Act, a Family Court shall -
(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
xxx xxx xxx (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, and
(b) such other jurisdiction as may be conferred on it by any other enactment."
Section 8 of the Act excludes the jurisdiction of all the Courts on the establishment of a Family Court for any specified area and the said Section also provides for the transfer of proceedings to the Family Court, which falls within the jurisdiction of the Family Court and which immediately before its establishment, were pending before any other Court. It is by virtue of this Section the proceedings instituted by the appellant stood transferred to the Family Court. Section 19 of the Act reads:
"19(1) Save as provided in Sub-section (2) and notwithstanding anything 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 an interlocutory order of a Family Court to the High Court both on facts and on law.
xxx xxx xxx (4) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court."
As can be seen from Section 19, an appeal lies to the High Court against every judgment or order made by the Family Court provided it is not an interlocutory order. Sub-section (4) further provides that no appeal or revision shall lie to any Court from any judgment or order or decree of a Family Court. If Sub-section (4) had not been there, the decision of this Court in the case of Subhasini, Subhasini v. Umakanth (Ref) would have held the field and consequently no appeal would be maintainable before this Court against an interlocutory order made by the Family Court under Section 24 of the Hindu Marriage Act, but a revision petition under Section 115 would have been maintainable. But in view of Sub-section (4) even a revision petition cannot be entertained by this Court against an interlocutory order made by the Family Court.
7. Sri G.S. Rao, learned Counsel for the appellant submitted that according to Sub-section (1) of Section 19 of the Act, an appeal lies to. this Court against a judgment.
He submitted that the word 'judgment' does not mean a final order made by any Court, but the word takes in even interlocutory orders in which questions which affect the rights of the parties, are conclusively decided. In support of the above submission, the learned Counsel relied on the judgment of the Supreme Court in the case of SHAH BABULAL KHIMJ, , Subhasini v. Umakanth (Ref) v. JAYABEN, . In the said case the question for consideration was, whether an appeal lie to the Division Bench of the Bombay High Court under Clause 15 of the letters patent of the Bombay High Court which provided that an appeal would lie against any judgment rendered by a Single Judge in exercise of the original jurisdiction of the High Court to two Judges of the same High Court. The Supreme Court interpreted the word 'judgment' and held that in certain cases even an interlocutory order would amount to a judgment and consequently against such interlocutory order, which amounts to a judgment, an appeal would lie to the Division Bench. The relevant portion of the judgment reads:
"106. Thus, the only point which emerges from this decision is that whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent.
xxx xxx xxx
115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly orders passed, by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate Court in appeal against the final judgment."
Relying strongly on the above judgment, Sri Rao contended that an order made by the Family Court under Section 24 of the Hindu Marriage Act affected the valuable rights of the party against whom the order is made and further a finding recorded and the direction issued while making an order under Section 24 of the Hindu Marriage Act is final and is not liable to be reconsidered or modified in the course of the disposal of the main petition and therefore the order amounts to 'judgment' and therefore an appeal lies to this Court against an order of the Family Court granting interim maintenance, under Section 19(1) of the Act.
8. There is no difficulty in accepting the submission made by the learned Counsel for the appellant that an order granting maintenance or directing payment of expenses towards the litigation, which the Family Court is entitled to make under Section 24 of the Hindu Marriage Act, certainly amounts to a 'judgment.' Applying the tests laid down by the Supreme Court in the case Shah Babulal Khimji, , the submission that an interlocutory order granting maintenance and to pay legal expenses is a 'judgment', is unexceptionable. But Section 19(1) of the Act provides that an appeal lies against a judgment or order, not being an interlocutory order. If Sub-section (1) of Section 19 had merely provided that an appeal lies against a judgment of the Family Court, then there would have been no difficulty at all in acceding to the contention of the learned Counsel that the appeal was maintainable, for the reason that the interlocutory order made in exercise of the powers under Section 24 of the Hindu Marriage Act amounts to a 'judgment'.
9. Sri B.P. Holla, learned Counsel, pointed out that an order granting maintenance in exercise of the powers under Section 24 of the Hindu Marriage Act was undoubtedly an interlocutory order. In this behalf, he pointed out that for filing an application under Section 24 of the Hindu Marriage Act, pendency of the main proceedings is a condition precedent, An application under Section 24 of the Hindu Marriage Act is not an independent proceeding and is only in the nature of an interlocutory application. He invited our attention to the meaning of "Interlocutory Application" given in the Karnataka Civil Rules of Practice, 1967. It reads:
"17. "Interlocutory Application" means an application to the Court in any suit, appeal or proceeding already instituted in such Court other than an application for execution of the decree or setting aside the decree or final order made in such suit, appeal or proceeding."
An application under Section 24 of the Hindu Marriage Act squarely falls within the meaning of the words "Interlocutory Application", as it could be made only in a main proceeding under one or the other provisions of the Hindu Marriage Act. Any order passed on such an application would certainly be an interlocutory order, Therefore, he submitted that notwithstanding the fact that an interlocutory order made in an application presented under Section 24 of the Hindu Marriage Act amounted to a 'judgment', the fact remains that it was an interlocutory order. Therefore, he submitted that as Section 19(1) expressly provides that an appeal lies only against any judgment or order, not being an interlocutory order, no appeal lies against an order made for grant of interim maintenance under Section 24 of the Hindu Marriage Act and notwithstanding the fact that it was a Judgment.
10. We are entirely in agreement with the submissions made by the learned Counsel Sri B.P. Holla. While we agree with the submission of Sri G.S. Rao that an interlocutory order made under Section 24 of the Hindu Marriage Act certainly amounts to a 'judgment', the very fact that it is an interlocutory order makes it non-appealable in view of the express words of Section 19(1) of the Act. As can be seen from the Preamble to the Act, one of the objects of this special enactment is to provide for speedy settlement of disputes relating to marriages and family affairs. Therefore, it is obvious that the Parliament intended to avoid procrastination of the proceedings and for that purpose barred appeals and revisions against interlocutory orders by ncorporating Sub-section (1) and Sub-section (4) to Section 19.
11. The learned Counsel for the appellant made a feeble attempt to say that an order granting maintenance under Section 24 of the Hindu Marriage Act should be regarded only as a 'judgment' and not an 'interlocutory order.' The very fact that an application under Section 24 of the Hindu Marriage Act is contemplated only as an interlocutory application in a main proceeding and the very fact that an order made under Section 24 of the Hindu Marriage Act automatically comes to an end with the disposal of the main proceedings, makes it impossible to accept the submission that the order is not an interlocutory order.
12. For the aforesaid reasons, we answer the question of law set out in the first paragraph, as follows:
"An appeal does not lie against an order made by the Family Court on an application presented under Section 24 of the Hindu Marriage Act granting interim maintenance under Section 19 of the Family Courts Act."
13. It should be further pointed out that in view of Subsection (4) of Section 19 of the Act, this appeal cannot even be permitted to be converted into a revision petition as in view of Sub section (4) of Section 19 of the Act, no appeal or revision except to the extent provided under Sub-section (1) of Section 19 of the Act lies to this Court.
14. Sri G.S. Rao, submitted that in the absence of an appeal, the party against whom an order is made under Section 24 of the Act to pay maintenance, even if on account of any subsequent event or a material information, not known and placed before the Court when the order was made, which justifies the revocation or modification of the order, would have to suffer the order till the disposal of the case. In this particular case he said that the appellant is now in a position to prove that the respondent is employed as a teacher earning a good salary and therefore there was no justification to seek maintenance at the hands of the appellant. All that we need observe in this behalf is that being an interlocutory order the Court which passed the order has the power to revoke or modify an interim order at the instance of the party against whom the order was made, if there is justification to do so.
15. We deeply appreciate the valuable assistance rendered by Sri B.P. Holla as amicus curiae.
16. In the result, we make the following order: The appeal is rejected as being not maintainable.