Raj Kumar Srivastava vs Smt. Anjana Sinha

R.M. Prasad, J.—The Misc. Appeal has been filed for setting aside the order dated 2.1.96 passed by the Presiding Officer, Family Court, Patna in Matrimonial case No. 70 of 1994, whereby and where under the trial Court ordered for payment of Rs. 750/- as Interim maintenance to the Respondent with effect from the date of the petition and further allowed Rs. 6,000/- as litigation cost in one lump sum besides Rs. 340/- for each trip as cost for conveyance for her each trip from Ranchi to Patna if she personally attends the Court along with escort and Rs. 400/- per day for her stay at Patna in connection with the case.

The Stamp Reporter, in his report, dated 13.2.96 has pointed out that the Misc. Appeal filed u/s 19 of the Family Courts Act, 1984 is against the order dated 2.1.96 by which the learned Court has allowed the interim maintenance and cost of litigation only, which is purely an interlocutory order and thus, the remedy seems to lie by way of filing a Civil Revision application u/s 115 of the Code of Civil Procedure. Hence, according to him, the present Misc. Appeal does not appear to be maintainable. Accordingly the matter has come up before me under the heading ''for orders'' for considering the question of maintainability.

It is contended by the learned Counsel for the Appellant that a Division Bench of Madhya Pradesh High Court the Matrimonial case of Raghve(sic) Singh Choudhary v. Seema (sic) reported in II (1988) DMC 315 (sic) the order passed u/s 24 of the Hindu Marriage Act is a judgment as it decides the question of maintenance during the pendency of the suit and therefore, there is final adjudication so far said question is concerned and an appeal lies against such an order. The Division Bench in the said case also relied on the decision of the Bombay High Court in the case of Dinesh Gijubhai Mehta Vs. Usha Dinesh Mehta, , wherein also it was held that the pendentelite maintenance u/s 24 of the Hindu Marriage Act, 1955 raises controversy independency the suit and the decision thereon concludes controversy finally between the parties and as such Letters Patent Appeal is maintainable.

In both the aforementioned case the question, in fact, involved was as to whether the appeal under Clause 10 of the Letters Patent Appeal against the order granting pendentelite maintenance by the learned Single Judge u/s 24 of the Hindu Marriage Act, 1955 was maintainable. Section 24 of the Hindu Marriage Act is a provision relating to grant of maintenance pendentelite and expenses where in any proceeding under the said Act it appears to the Court that the wife or the husband, as the case may be, has no independent income sufficient for her or his support or for the necessary expenses of the proceeding. In the year 1984 the Family Courts Act was enacted for 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. Chapter III of the said Act deals with the jurisdiction of the family Court constituted thereunder, which is quite wide to include also the jurisdiction in it to consider for grant of maintenance pendentelite. Section 8 excludes the jurisdiction and pending proceedings of the district Courts or any subordinate civil Courts in relation to an area where a family Court has been established in respect of any suit or proceeding of the nature referred to in the explanation Sub-section (2) of Section 7 also vests the jurisdiction or powers of the Magistrates 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 u/s 8 all such matters pending would stand transferred to such Family Courts on the date on which it is established.

Section 17 provides that judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. u/s 19 an appeal lies from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. Sub-section (2) of Section 19 provides that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties and Sub-section (3) provides that limitation of 30 days in preferring appeal from the date of the judgment or order of a Family Court. Sub-section (4) of Section 19 provides order or decree of a Family Court except as provided in Sub-section (1), (2) and (3).

As per the provision contained in Section 17 of the Act the judgment shall contain a concise statement of the case, the point for determination, the decision thereof and the reasons for such decision and not an order of the interim nature passed in the case pending its final adjudication. The judgment, in my opinion means the final determination of the points involved and final adjudication in regard to the relief sought for in the Matrimonial suit. In the instant case the husband Appellant has filed the suit for decree for judicial separation, whereas, from the bare perusal of the impugned order it is evident that the order does not at all deal with the issue regarding judicial separation, nor does it determine any point in the suit finally. In fact the right or liability involved in the suit is still to be determined by the Court, and in the meantime, the Court has granted interim maintenance as well as cost of litigation in lump sum besides directing payment for conveyance allowances and for each day of her stay if the Respondent personally, attends the Court along with escort. The Supreme Court in the case of Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, held as under:

In finding out whether the order is a judgment within Clause 15 it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.

Further, in the petition for Special Leave to Appeal (Civil No. 25094/94) filed in the Supreme Court by Dr. Ranjeet Singh against the Respondent Indu Singh against the judgment and order dated 14.7.95 in Civil Revision 2100/94 of this Court, the Supreme Court by the order dated 20th November, 1995 held that the Revision filed u/s 115 of the CPC was not maintainable in law. While interpreting the provision contained in Sub-section (4) of Section 19, which expressly bars the appeal or revision, except as provided by Sub-section (1) held as follows:

It is true that Sub-section (4) of Section 10 of the Family Courts Act expressly bars an appeal or revision except as provided by Sub-section (1). Sub-section (1) provides an appeal only against a final order passed by the Family Court. In this sense, the revision filed u/s 115 of the CPC was not maintainable in law, but in extraordinary cases, the High Court may not be precluded from exercising its powers under Article 227 of the Constitution and rectify any grave injustice caused. Be that as it may, having regard to the facts and circumstances of the case we are not inclined to interfere with the matter also because the High Court has merely remanded the matter and it is upon the Petitioner-husband to bring all the relevant facts to the notice of the trial Court at the time of hearing of the petition u/s 24 of the Hindu Marriage Act.

The SLP is dismissed with the aforesaid observations.

Thereby no stretch of imagination the impugned order can be held to be judgment as defined within the meaning of Section 17 of the Act. It is true that u/s 19 an appeal also lies against an order of a Family Court but not against an interlocutory order. I have already held above that the impugned order does not adjudicate and/or affect, the merit of the action between the parties by determining the right or liability, the Court, in fact, on consideration of the case of the parties for grant of interim maintenance, passed the impugned order, and from the said order itself it is evident that it is interim in nature inasmuch as, besides granting interim maintenance the Court has only granted costs of litigation in lump-sum and for conveyance allowances for her trip to Patna and stay in connection with the case, obviously till the case continues.

Thus, the appeal is dismissed being not maintainable summarily.