Rajasthan High Court - Jaipur
Ajay Malik vs Shashi on 19 November, 2010
Bench: Arun Mishra, Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Misc. Appeal No.4559/2009
Ajay Malik Versus Smt. Shashi
Date of Order ::: 19/11/2010
Hon'ble Acting Chief Justice Mr. Arun Mishra
Hon'ble Mr. Justice Ajay Rastogi
Mr. Vipul Jaiman, for appellant.
Mr. PC Sharma for Mr. Ashwani Chobisa, for respondent.
By the Court : (Per Hon. Mr. Ajay Rastogi, J.)
Instant Misc. appeal U/s 19 of the Family Courts Act, 1984 (Act, 1984) is directed against interim order dt.04/07/2009 passed by learned Family Court, Kota in Civil Misc. Case No.189/2008 whereby application filed U/s 24 of Hindu Marriage Act, 1955 (HM Act) was partly allowed granting maintenance @ Rs.1,000/- per month to each of two minor children and Rs.3100/- towards litigation expenses.
The parties were married on 28/01/1992 as alleged, according to Hindu rites & customs and out of their wedlock, two children were born. But due to some marital feud & dispute, appellant (husband) filed application U/s 13 of HM Act seeking divorce and pendente divorce petition before Family Court, an application was filed by respondent (wife) U/s 24 of HM Act seeking interim maintenance for herself and two minor children dependent upon her. Taking note of material on record and also the fact that the wife has also certain income source at her own, the learned Family Court considered it appropriate to grant in all Rs.2,000/- per month for two minor children towards interim maintenance pendente divorce petition and Rs.3100/- towards legal expenses in favour of the wife vide order dt. 04/07/2009, which has been assailed herein.
Counsel for appellant submits that pendente lite only wife can claim maintenance and the maintenance having been granted to the children U/s 24 of HM Act is wholly wihout jurisdiction.
Per contra, Counsel for respondent (wife) submits that misc. appeal U/s 19 of the Act, 1984 itself is not maintainable because the order assailing herein is an interim and interlocutory in nature having been passed U/s 24 of HM Act.
That apart, Counsel further submits that children are born out of wedlock of the parties, which has not been controverted by the appellant in such circumstances, children being completely dependent upon mother, the respondent is entitled for pendente lite maintenance for education & maintenance of children and thus, no error has been committed by the learned Family Court while awarding interim maintenance to the tune of Rs.1,000/- per month to each of children.
This Court has considered contentions advanced by Counsel for parties, and with their assistance, examined material on record. We find substance in the preliminary objection raised by Counsel for respondent. U/s 19(1) of the Act, 1984 an appeal lies against every judgment or order but not being an interlocutory order of the Family Court to the High Court both on facts and on law. In the instant case, the order impugned has been passed by the learned Family Court granting pendente lite maintenance U/s 24 of HM Act is certainly an interlocutory in nature; in such circumstances, in view of S.19(1) of HM Act, instant misc. appeal is maintainable.
Division Bench of this Court in Minor Anu @ Atul Vs. Ratan Lal Sharma (1993(2) WLC (Raj) 156) examined the scope of S.S.19(1) of Family Court Act, 1984 and observed ad infra:
11. ...We are of the firm view that any order granting interim main-tenance allowance is an interlocutory order within the meaning of Sub-S.(1) of Section 19 of the Act. The phraseology used in sub-s.(1) of S.19 of the Act unmistakably provides that no appeal shall lie from any judgment or order which is an interlocutory order.The provisions of appeal under S.19 of the Act are stringent by incorporating non-obstante clause therein. Even a revision against an interlocutory order is barred under sub-s.(4) of S.19 of the Act. The legislature in its wisdom thought-fully enacted S.19 with a view to dispose of matrimonial cases as expeditiously as possible. Clear and unambiguous language of S.19(1) admits no other interpretation. Mr. LR Mehta, learned counsel appearing for minor children, when faced with this situation, had to concede fairly and rightly so, that the appeals are not maintainable against the impugned order granting interim maintenance allowance. Mr. Ratan Lal Sharma also could not bring any decision to our notice taking a contrary view. We, therefore, have no hesitation in holding that all the present appeals are not maintainable under S.19 of the Act as they are directed against an interlocutory order.
That apart, even on merits, we find that U/s 24 of HM Act, pendente lite maintenance can be granted not only to the wife but also to her dependents. Scope of S.24 of HM Act has been considered by Apex Court in Jasbir Kaur Sehgal Vs. District Judge, Dehradun & Ors (1997(7) SCC 7) ad infra:
6. .. Section 24 of the Act no doubt talks of maintenance of the wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since the wife is maintaining the eldest unmarried daughter, her right to claim main-tenance would include her own main-tenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor child-ren, their maintenance & education but that section operates in its own field.
Taking note of principles of law laid down by Apex Court (supra), in instant case, indisutably both the minor children are dependent upon their mother (respondent wife) who require money for their education & maintenance. Taking note whereof, the learned Family Court has awarded in all Rs.2,000/- towards pendente lite maintenance to the children of respondent and Rs.3100/- towards legal expenses. No contrary material has been placed on record even in instant appeal which may draw inference warranting interference.
Consequently, appeal fails and is hereby dismissed. No order as to costs.
(Ajay Rastogi), J. (Arun Mishra), Actg CJ Kamlesh Khatri/p5/ 4559CMscApp2009Nov19Ds.do