Kiran Bala Srivastava vs Jai Prakash Srivastava

Khem Karan, J.—Pursuant to the orders dated 342002 passed by a Division Bench (Hon''ble Pradeep Kant and Hon''ble M.A. Khan, JJ.) of this Court at Lucknow in First Appeal No. 17 of 2002, Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava, filed under subsection (1) of Section 19 of the Family Courts Act, 1984 (hereinafter referred to as the Act of .1984), Hon''ble the Chief Justice was pleased to constitute this Full Bench to answer:

"Whether an appeal under Section 19 of the Family Courts Act, 1984 would lie against an order passed under Section 24 of the Hindu Marriage Act, for grant of interim maintenance?"

Factual Background

The respondent Jai Prakash Srivastava filed a petition (Original Suit No.77/87) against his wife (the appellant) under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act of 19b5) in a Family Court at Lucknow. The wife moved one application under Section 24 of the Act of 1955 claiming to herself and to her daughter pendente lite maintenance at the rate of Rs. 80007a month and litigation expenses to the tune of Rs. 11, 000/. The learned family Judge passed an order on 1672001 directing the husband to pay pendente lite maintenance at the rate of Rs. 500/ a month from the date of application and also to pay Rs. 2000/in lump sum towards expenses of the litigation.

It appears, the wife was not satisfied with it, so she moved an application under Section 151/152 of the Code of Civil Procedure to enhance the monthly maintenance to the extent of 1/3rd of the salary of the husband. The learned Judge passed an order on 2872002, altering his previous order of 1672001 so as to enhance the amount to the extent of 1/3rd of the salary of the husband but in doing so he subjected the same to the adjustment of any other amount of maintenance, being paid by the husband.

The husband moved one application under Order 47 read with Section 151 of the Code of Civil Procedure for reviewing the two orders dated 1672001 and 2872001 inter alia on the grounds that he was not heard; that he was already paying maintenance at the rate of Rs. 450 to his wife and at the rate of Rs. 500/ a month to the daughter, on the basis of a compromise arrived at in another case and that the question of awarding such pendente lite maintenance did not arise as the wife was gainfully employed as a teacher and was getting a handsome amount of Rs. 6000/ a month as salary. The wife opposed this application of the husband. The learned family Judge disposed of this application vide order dated 732002. By this order dated 732002 he directed for payment of the pendente lite maintenance in terms of earlier order dated 1672001 but subject to adjustment of the amount being paid pursuant to the orders passed in proceedings under Section 125 of the Code of Criminal Procedure. He also warned the husband, if the amounts were not paid within a week, proceedings in the divorce suit would be stayed.

When the said appeal under subsection (1) of Section 19 of the Act of 1984 came up before the Division Bench, a preliminary objection as to the maintainability of such an appeal was raised on the basis of two Division Bench decisions of this Court at Allahabad in Smt. Pratima Sen Gupta v. Sajal Sen Gupta, 1998 SCO 732 : 1998 (16) LCD 346) and Ravi Saran Prasad alias Kishore v. Smt. Rashmi Singh, AIR 2001 Allahabad 227 : 2001 (19) LCD 707. The appellantwife tried to meet this objection by referring to another decision of the Division Bench of this Court at Lucknow in Avadhesh Narain Srivastava v. Archna Srivastava, 1990 LLJ 183 : 1990 (8) LCD 66. Finding the conflict in between the decisions in Avadhesh Narain Srivastava''s case (supra) on the one hand and in the cases of Ravi Saran Prasad and Pratima Sen Gupta (supra) on the other, their Lordships directed the Registry to place the relevant papers before Hon''ble the Chief Justice for constituting a larger Bench to resolve the controversy as to whether appeal lies under subsection (1) of Section 19 of the Act of 1984, against orders under Section 24 of the Act of 1955.

Nature and Extent of the conflict in the cases referred to above

In Avadhesh Narain Srivastava''s case, an appeal was filed under subsection (1) of Section 19 of the Act of 1984, against an order under Section 24 of the Act of 1955. The respondent raised a preliminary objection as to the maintainability of the appeal by saying that order under Section 24 was interlocutory one and so appeal was not maintainable. Their Lordships (Hon''ble Virendra Kumar and Hon''ble S.H.A. Raza, JJ.) overruled it and said:

"No doubt, that the impugned order has been passed by the Family Court in the proceedings for restitution of conjugal rights which are pending before it and are yet to be finally disposed of by that Court but that in itself does not mean that the impugned order or any order passed during the pendency of the proceedings will be an order of interim nature or an interlocutory order. Further Section 24, under which the impugned order has been passed, does not provide that the order passed under this section will be an interlocutory order or an interim order. All that the section goes to signify is that the order is to be for maintenance and litigation expenses during the period of pendency of the proceedings before the Family Court. But the maintenance and litigation expenses though for the interim period stood finally determined by the Family Court on the application file by the respondent under Section 24 of the Act. The Family Court did not indicate that it was passing the impugned order as an interlocutory order for being confirmed or recalled under a subsequent order in the same proceedings. The order has been passed finally by the Family Court on the question of grant of pendente lite maintenance and litigation expenses. Such an order cannot be considered as an interlocutory order. Same view was taken by Rajasthan High Court in the case of Sanjeev Kumar Pareekv. Shubh Laxmi Paraak, (1989) 1 Divorce & Matrimonial Cases 450."

In Smt. Pratima Sen Gupta''s case also an appeal was filed against an order of family Judge granting pendente lite maintenance and expenses of litigation in proceedings under the Act of 1955. The respondent raised a preliminary objection as to the maintainability of appeal saying that the order was interlocutory in nature. Relying on Grish Chandra Srivastava v. Smt. Sudha Srivastava, (1997) 1 UP. Civil and Revenue Cases Reporter 471, Mahesh Bhardwaj v. Smt. Smita Bhardwaj, AIR 1995 Rajasthan 47 and a Division Bench decision of Bombay High Court in Sun/7 Hansraj Gupta v. Payal Sunil Gupta, AIR 1991 Bombay 423 and also on the phraseology used in Section 28 of the Act of 1955 and subsection (1) of Section 19 of the Act of 1984, the learned Judges (Hon''ble B.K. Roy, J. and Hon''ble M.L. Singhal, J.) upheld the objection, with the observation that plain reading of Sections 24 and 28 of the Act of 1955 made it clear that order under Section 24 was interlocutory one.

In Ravi Saran Prasad''s case (supra) in an appeal under Section 19(1) of the Act, 1984, against an order under Sections 24/26 of the Act of 1955, office raised an objection against the maintainability of the appeal. The appellant contested this objection of the office by relying on a Division Bench decision of Madhya Pradesh High Court in Raghvendra Singh Choudhary v. Seema Bai, AIR (1989) I DMC 89, where it was held that since the order under Section 24 was a "judgment" so the appeal was maintainable. This decision in Raghvendra Singh''s case was based on Dinesh Gijubhai Mehta v. Smt. Usha Dinesh Mehta, AIR 1979 Bombay 173 and on Shah Babu Lala Khinzi v. Jayanaben D. Kania, AIR 1981 SC page 1786. This Court overruled the objection and said:

"It cannot be said that the Legislature has created an appellate forum in 1984, against the orders passed under Section 24 of the Hindu Marriage Act nullifying Section 28 of that Act contrary to the object of enactment of the Act as stated in the Bill."

Unfortunately, the decision of this Court rendered as back as in January 1990, in Avadhesh Narain''s case (supra) could not be brought to the notice of Hon''ble Judges, taking a contrary view in subsequent cases of Pratima Sen Gupta and Ravi Saran Prasad (supra) and therefore, their lordships had no occasion to consider whether to tread the same path or to carve out a new one. In a sense, the contrary view taken in later cases as referred to above, can be said to be pet incuriam, as the same is in ignorance of opposite view of a coordinate Bench of the same Court in Avadhesh Narain''s case.

Although, a Division Bench decision of this Court at Allahabad, in Rakesh Kumar Shandilva v. Smt. Repu, 1999 Allahabad SCD, page 80, does not appear to be directly on the point under consideration, yet since the Bench passing order dated 342002 has also referred to it, so it would be appropriate to make a brief reference to the point involved therein and the decision so given in that case. The facts were that in a petition for divorce, the learned Family Judge, Meerut passed an order under Section 24 of the Act of 1955, granting pendente lite maintenance to the wife, against which the husband tiled a civil revision under Section 115 of the Code of Civil Procedure. The Stamp Reporter of the Court, raised objection against competence of this revision, probably in view of subsection (5) of Section 19 of the Act of 1984. Relying on an earlier decision in Veerendra Kumar Gupta v. Smt. Meena, 1996 ACJ 718, the learned Counsel for the revisionist, contended before the learned Single Judge that objection was ill founded. The learned Single Judge was, however, not convinced with the view taken in Veerendra Kumar Gupta''s case, so he requested Hon''ble the Chief Justice to constitute larger Bench to resolve the issue. This was how the matter reached the Division Bench. Their Lordships found that objection against maintainability of civil revision was neither raised nor decided in Veerendra Kumar Gupta''s case. It was however, held that civil revision was not maintainable in view of bar of subsection (5) of Section 19 of the Act of 1984. Thus stamp reporter''s report was upheld. Their Lordships were not required to consider whether order under Section 24 of the Act of 1955, passed by family Court, was appealable under subsection (1) of Section 19 of the Act of 1984.

Relevant Statutory Provisions

In the context of the controversy in question, provisions contained in Sections 24, 25, 26, 28 and 28A of the Act of 1955 appear to be relevant and it would be useful to have a look at the same before referring to the rival contentions of the parties'' Counsel and before entering into the discussion. These provisions are as under:

"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 proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the 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.

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."

"25. Permanent alimony and maintenance.(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent''s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just and) any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem Just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just."

"26. Custody of children.In any proceeding under this Act, the Court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree, upon application by petition for the purpose, make from time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such orders and provisions previously made.

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent."

"28. Appeal from decrees and orders.(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of subsection (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of subsection (3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this Section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order."

"28A. Enforcement of decrees and orders.All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced."

In so far as the Act of 1984 is concerned, its Section 19 and especially subsection (1) thereof, appears most relevant and the same is as under:

"19. Appeal.(1) Save as provided in subsection (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 judgment or order, hot being an interlocutory order, of a Family Court to the High Court both on facts and on 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 subsection 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 i Family Court.

(6) An appeal preferred under subsection (1) shall be heard by a Bench consisting of two or more Judges."

Because of the use of words "decree" "judgment" "order" in the relevant Acts and also because of the line of arguments adopted by the learned Counsel for the appellant, the definition of these terms as given in Section 2(2), (9) and (14) of the Code of Civil Procedure, 1908 also appear to be relevant to son e extent. These are as under:

(2). "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

ExplanationA decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is fine when such adjudication completely disposes of the suit. It may be partly preliminary and partly final"

(9) "Judgment" means the statement given by the Judge on the ground of the decree or order"

(14) "Order" means the formal expression of any decision of a Civil Court which is not a decree"

Rival Contentions of the parties Counsel

The main submissions of Sri Satish Chandra Srivastava, the learned Counsel for the appellant are that such an order under Section 24 will not be ''interlocutory order'' for purposes of subsection (1) of Section 19 of the Act of 1984 because the same Courtfee is chargeable on application under Section 24 as is chargeable on petitions under Sections 9. 10, 12, 13.14, 25 and 26 o the Act of 1955, the same procedure regulates the processing and disposal o such applications as regulate the trial and disposal of other petitions under the said Act and the same provision contained under Section 28A apply to the enforcement of these orders as they apply to the execution of other decrees and orders under the said Act of 1955. Sri Srivastava goes on to argue that the proceedings under Section 24 are quite independent of the main proceeding: and the points or issues involved therein are totally different to the controversy in the main petition and so orders granting pendente lite maintenance under Section 24 is final for all legal and practical purposes as the same is not dependent on the outcome of the main petition. He contends that since various interim orders can also be passed in petitions under Sections 9, 10, 11, 12, 13B, 15, 16, 17, 25 and 26 of the Act of 1955, which may be steps in aid of the main proceedings and only those interim orders can be brought within the expression interlocutory order and not the orders under Section 24. The learned Counsel has submitted that order under Section 24 granting pendente lite maintenance has all trappings and characteristics of a decree as defined under subsection (2) of the Code of 1908, hence is also appealable under subsection (1) of Section 28 of the Act of 1955 and also under the Code of 1908. Sri Srivastava says that an order which disposes of a particular proceeding finally cannot be termed as interlocutory order. It has also been argued that in any case order under Section 24 granting pendente lite interest is a judgment and so is appealable under subsection (1) of Section 19 of the Act of 1984. The learned Counsel also contends that in case an objection as against the maintainability of the appeal is upheld, an anomalous situation would be created so much so in areas where there is a family Court, person aggrieved of any such order will have no statutory remedy, but in other areas, where there is no family Court, the party aggrieved may invoke the revisional jurisdiction of the High Court/District Judge under Section 115 of CPC.

On the other hand, the learned Counsel for the respondent husband has contended that proceedings under Section 24 have no existence, independent of the main proceedings under the Act of 1955 and so final orders passed therein are just steps in aid of the main proceedings. It is also argued that life of any such order under Section 24 does not extend beyond the life of the main proceedings. He has argued that payment of Courtfees, enforceability or executability of such orders, maintenance of record of proceedings under Section 24 revisability of such order under Section 115 of the Code of 1908 are not relevant to decide whether orders under Section 24 are interlocutory for purposes of subsection (1) of Section 19 of the Act of 1984. The learned Counsel has submitted that in case the contention of the appellant as regards the maintainability of appeal is upheld, an anomalous situation will be created so much so in areas, where there is a family Court, party aggrieved would have right of appeal under subsection (1) of Section 19 of the Act of 1984, whereas in other areas, there will be no such right.

Findings

Appeal to a higher Court/tribunal/authority being a creation of statute (see: Shah Babu LalKhimji v. Jayabein Kania, AIR 1981 SC 1786, Gaon Sabha v. UpSanchalak Chdkbandi, [2003 Prayag Nirnay Patrika 359 (Civil)], Flora Bose v. Suprotik Bose, [(2002) 3 FemiJuris CC 331, Delhi)], Lipika Gupta v. State of Bihar, AIR 2001 Patna 39), we will have to confine ourselves to the provisions contained under Section 19 of the Act of 1984. Reference to the provisions contained under Section 28 of the Act of 1955 or under the Code of Civil Procedure 1908 and the judicial pronouncements cited at the Bar, touching those provisions in the respective enactments, will not be of use to us in answering the question referred to us. The simple reason for saying so is that sub section (5) of Section 19 of the Act of 1984 clearly says that except as provided in Section 19 no appeal or revision shall lie to any Court from any judgment, order or decree of a family Court. Moreover, a nonobstante clause "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 judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and law" appearing in subsection (1) of Section 19, also leaves no room for doubt that provisions contained under Section 28 of the Act of 1955 or under Section 96 or 104 of the Code of 1908, will not be relevant in the context.

Prior to the commencement of Marriage Laws (Amendment) Act, 1976, which deleted old Section 28 of the Act of 1955 and substituted the one, we see today, there used to be filed appeals even against interlocutory orders, contributing to considerable delay in disposal of the main petitions under that Act of 1955. Faulty the phraseology of old Section 28 gave rise to such appeals (see: Smt. Santosh Kumar v. Chaman Lal, Matrimonial Reporter, 1978, J & K 56, Full Bench decision of the same Court in Mis. Shubhi Bagchi v. Mr. P.K. Bagchi, AIR 1975 J & K 83). The following observation of a Full Bench of this Court, in Smt. Premlata Sharma v. Bhagwat Prasad Sharma, 1984 ALJ 392, would reveal that the main purposes behind deletion of old Section 28 of was to take away the right of appeals, against interlocutory orders:

"The evil which was intended to be removed by the Marriage Laws (Amendment) Act (1976), was to avoid delay in the disposal of the cases. The evil was undue delay because of the appeals which used to be filed against grant of maintenance pendente lite and expenses. From its nature the disputes contemplated by Sections 9, 10, 11 and 13 of the Act were such which needed early and expeditious disposal It had been realized that frivolous appeals are filed against grant of maintenance penaente lite with a view to harass one side by the c her. In order to knock off such appeals Section 28 was amended. The other reason appears to be the ambiguity in Section 28 which had led to conflicting interpretations."

A plain reading of subsection (1) of Section 19 of the Act of 1984 makes it clear that there is a provision for appeal against "judgment" or "order" of a family Court, but not against its "interlocutory orders". The words "judgment" "order" and "interlocutory orders" used in subsection (1) of Section 19 have not been defined in that Act. Although the words "judgment" and order" are defined under Section 2(9) (14) of the Code of Civil Procedure and by virtue of Section 2(e) of the Act of 1984. can be looked into for understanding the meaning of those words, but the expression "interlocutory order" is not defined even in that Code of 1908, though that expression has been used in Order XXXIX of that Code. So with a view to decide whether appeal lies under subsection (1) of Section 19 of the Act of 1984 against the order of family Court granting pendente lite maintenance under Section 24, we have to first see as to whether the same falls within the definition of a "judgment".

Interpreting the word "judgment" appearing in clause 15 of Letters Patent "Bombay" in Shah Babu Lal Khimii v. Jayaben, AIR 1981 SC 1786, their lordships of the Apex Court held that those orders which decided matters of moment or which affected vital and valuable rights of the party or which tended to work serious injustice to the party concerned, fell within he expression "judgment" appearing in relevant clause of Letters Patent. Their lordships said that there could be following three kinds of judgments:

"A final JudgmentA judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.

A preliminary Judgment.This kind of a judgment may take two forms (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g. bar of jurisdiction, resjudicata, a manifest defect in the suit, absence of notice under Section 80 and the like and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.

Intermediary or interlocutory judgment.Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order XLIII, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order XLIII, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of to the trial in an ancillary proceeding. Before such an order can be a Judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.....

In other words, the Apex Court ruled that order or interlocutory order possessing the characteristics and trappings of finality or affecting valuable, rights of the party or deciding important aspects of the trial in main or in ancillary proceedings, will be "judgment".

What noticeable in subsection (1) of Section 19 of the Act of 1984, ii that deviating from. Section 96 of the Code of 1908 or from subsection (1) Section 28 of the Act of 1955, it provides for appeals against "judgment". The Code of Civil Procedure, 1908, does not provide for appeal against judgments. It provides for appeals against decrees and orders. Likewise Section 28 of the Act of 1955 also does not provide for appeals against judgments. It provides for appeals only against decrees [see: subsection (1)] and against certain [see: subsection (2)]. The question arises as to why the legislature made a departure by providing appeal against judgmentsalso, under subsection (1) of Section 19 of the Act of 1984. Not that the legislature was not aware of the established practice or did not know the meaning of the word judgment, given by the Apex Court in Khimji''s case (supra).,

If we glance at matters enumerated in explanation to sub section (1) lot Section 7, of the Act of 1984, we find matters, hitherto dealt with and decided by different Courts and different levels of civil Courts, under different enactments were placed within the jurisdiction of a family Court. The legislature was aware of the legal position, that orders and decrees of civil Court of inferior grade, could be subjected to not only one appeal but to more than one. Declaration in the Bill, that only one right of appeal is being provided, should be read in line same context.

Before we consider whether orders under Section 24 granting pendente lite maintenance to the party to the matrimonial dispute, possesses characteristics and trappings of a "judgment", we would like to refer to two Supreme Court cases, namely Amar Nath v. State of Haryana, AIR 1977 SC 2185 and Maclhi Limaye v. State of Maharashtra, AIR 1978 SC 47. The controversy in Amar Math''s case centered around the meaning of the expression "interlocutory order" appearing in subsection (2) of Section 397 of the Code of Criminal Procedure, Relying on earlier view in Mohan Lal Magan Lal Thakkar v. State of Gujarat, AIR 1968 SC 733, the Apex Court said:

"The term "interlocutory order" is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster''s New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the right and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any orator which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code, thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, cutting for reports and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."

It was pointed out that the finality of an order could not be judged by corelating that order with the controversy in the complaint and the fact that the controversy still remains J alive was irrelevant. The said view was reiterated in Madhu Limaye''s case with the observation that some kinds of order may fall in between final order" and "interlocutory order" and the bar in subsection (2) of Section 397 was not meant to be attracted to such kind of "intermediary orders". In other words, according to their lordships, what was not final, was not necessarily interlocutory for purposes of subsection (2) of Section 397 of the Code of Criminal Procedure.

The object behind Section 24 of the Act of 1955 is undoubtedly to provide necessary funds to the needy spouse to prosecute the proceedings as well as to maintain himself or herself during the pendency of the proceedings. The consideration that weigh in granting or refusing pendente lite maintenance under Section 24 have no connection with the questions or issues that may crop up in the main proceedings for restitution of conjugal rights or judicial separation or divorce or annulment of marriage etc. Thus, the ambit and nature of the proceedings for divorce or judicial separation etc. are wholly different from the ambit and nature of proceedings under Section 24. We cannot lose sight of the fact that in more than ninety per cent of the cases under the Act of 1955. It is the wife who comes under Section 24 for pendente lite maintenance or expenses the litigation. In a made dominated society, in majority of cases, the wife has on independent source of income to maintain herself and is solely dependent on her husband. It would be profitable to refer to the following observations of Kerala High Court in Balan Nair v. Bhavani Amma Valsalamma & Ors., AIR 1907 Kerala 110(FB):

"Though Section 125 benefits a distressed father also, main thrust the provision is to assist women and children distress. That is fully consistent with Article 15(3) of the Constitution which states that the prohibition contained in the Article shall not prevent the State from making any special provision for women and children. We take note of Article 39 of the Constitution which states inter alia, that the Stall shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions cf freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment..........The provision is a measure of social justice and specially enacted to protect women and children. As the Supreme Court observed in Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807 : 1979 Cri LJ 3, the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance."

What we want to say is that although Section 24 of the Act of 1955 does not distinguish between husband and wife, for purposes of having pendente lite maintenance or expenses from other, but in practice the provision is invoked by wife. So, provision contained under Section 24 of the Act of 1955 is important one from the point of view of the wife. Not only her survival during the pendency of the proceedings under that Act but her right to prosecute or defend the proceedings also depends on the outcome of the proceedings under Section 24. Thus a refusal of such maintenance under Section 24 is serious to the wife, so much so she my even give up the idea of defending herself, for want of sufficient means.

The argument that appeal against any such order, will delay the disposal of main petition does not appeal to us, so as to give a limited meaning to the word "judgment". In an appeal against any order under Section 24 of the Act of 1955, granting pendente lite maintenance, main proceedings need not necessarily be stayed or held up. The reason is that grant of such maintenance is not to affect the merits of the main petition.

The learned Counsel for the respondents has referred to the definition of "interlocutory orders" in Vol.22 of the third edition of Halsbury''s Law of England and also to Central Bank of India v. Gokul Chand, AIR 1967 SC 799 and also Amar Nath''s case and Madhu Limaye''s case (supra), so as to say that order under Section 24 of the Act of 1955 are just steps in aid of the main proceedings and have no existence independent of the main proceedings, so will not fall within the definition of the judgment and will be only an interlocutory order. We are of the view that in view of the discussion made above order of pendente lite maintenance has all the characteristics and trappings of the judgment as it decides the valuable rights and liabilities of the parties to the proceedings. In so far as those rights and liabilities are concerned the order is final. The fact that the considerations that matter in granting or refusing pendente lite maintenance under Section 24, have no connection with issues in the main proceedings or the question that even after disposal of application under Section 24, the main petition remains alive for disposal, do not prevent the order under Section 24 from falling within the definition of the "judgment". We are also of the view that the expression "interlocutory order" appearing in sub section (1) of Section 19 of the Act, 1984 qualify the word "order" only and does not qualify the word "judgment" appearing before the word "order". In other words, if order of pendente lite maintenance is a "judgment" for all legal and practical purposes, it matters, little whether the same is interlocutory or final.

With due respect to the Hon''ble Judges deciding cases of Smt. Pratima Sen Gupta and Ravi Saran Prasad @ Kishore (supra), we find ourselves unable to subscribe to the view taken therein. The reasoning that since the Bill intended to provide only one right of appeal against the judgment and order of the family Court, so right of appeal was not permissible against order under Section 24, was not sound one. To our mind, declaration in the Bill introducing the Act of 1984 that only one right of appeal was to be provided did not mean that order under Section 24 granting pendente lite maintenance was not a "judgment" for purposes of subsection (1) of Section 19. As observed earlier and as held in Full Bench decision of this case in Prem Lata''s case (supra), second appeal also lay against decrees and orders initially appealable under subsection (1) or subsection (2) of Section 28 of the Act of 1955. Similar right of second appeal could have also been against orders to be passed in such matters under other enactments. We think the Parliament made it clear that there shall be only one right of appeal against the judgments and orders of the family Court. In other words, the right of second appeal which could have earlier been available under the respective enactments, was taken away. Parliament wanted to provide only one appeal, against a particular adjudication or decision of a family Court. In other words, against the same decision or adjudication, there could not be two appeals.

We agree with the view taken by the Division Bench in Avadhesh Narain Srivastava''s case. Since orders under Section 24, granting pendente lite maintenance is a judgment, so appeal will lie under subsection (1) of Section 19 of the Act of 1984.

So, our answer to the question is in affirmative. Let the record of this appeal be placed before the appropriate Bench, for final disposal.

Reference answered accordingly.