Satyendra Kumar Jha vs Sadhna Kumari

Heard learned counsel for the appellant Mr. Shashank Shekhar Prasad and Mr. Ranjan Kumar for the Respondent-wife.

This appeal has been preferred under section 19(1) of Family Courts Act, assailing the order dated 05.02.2019 passed in Original Suit No. 36/2018 by the learned Principal Judge, Family Court, Palamau, whereby and whereunder the learned Court has been pleased to direct the appellant to pay a lump-sum amount of Rs. 50,000/- as expenses incurred in the proceeding and further directed to pay maintenance @Rs. 10,000/- p.m. as maintenance pendentlite to the Respondent by 15th of every calendar month from the date of the order under section 24 of Hindu Marriage Act, 1955.

The appellant had earlier approached the Writ Court in WPC No. 1557/2019. However, writ petition was dismissed as withdrawn by order dated 24.06.2019 with liberty to the petitioner to file appeal against the impugned order. The question of maintainability of this appeal under section 19(1) of Family Courts' Act, 1984 is the first hurdle which the appellant has to cross before the matter can be entertained on merits. Section 19 of the Family Courts' Act 1984 reads as under:

"19. Appeal.-- (1) Save as provided in Sub-section (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, not 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 Sub-section 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 a Family Court.

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

A bare perusal of Sub-section 1 of section 19 of Family Courts Act under which the instant appeal has been preferred makes it clear that 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. This issue has crossed the attention of other High Courts and decisions rendered by other coordinate Benches or larger Bench of different High Courts have been cited from time to time before this Court also. However, we do not think that the issue is res-integra. We may profitably refer to the Special Bench decision of Patna High Court rendered in Civil Revision No. 346/2010 in the case of Neelam Kumari Sinha Versus Shree Prashant Kumar (AIR 2010 Pat 184) vide judgment dated 19.12.2010 authored by Hon'ble the Chief Justice Shri Dipak Misra (as His Lordship then was). Learned Court was in seisin of the question of maintainability of Civil Revision petition against the interim order of maintenance under section 24 of Hindu Marriage Act, 1955 passed by the learned Principal Judge, Family Court, Siwan in Divorce Case No. 15/2005. Section 28 of the Act of 1955 as amended by Parliament Act No. 68 of 1976 was also taken into account. It was observed by the learned Court that as per the provisions of Hindu Marriage Act, right of appeal against an interim order passed under sections 24, 25 or 26 of the Act has been expressly taken away. It was observed that an order passed under section 24 of the Act of 1955 is an interim order and is incidental to the comprehensive adjudication. Further, Section 20 of the Family Courts Act has an overriding effect. Referring to another Full Bench decision of Patna High Court in the case of Durga Devi v. Vijay Kumar Poddar and Ors, judgment dated 27.04.2010, learned Court found that no civil revision petition would lie against an interlocutory order of such nature, unless the order is of such nature which could have been finally disposed of the suit in other proceeding. In the said decision, it was also held that a writ petition under Article 227 of the Constitution of India would be maintainable. Having discussed the statutory position and decisions rendered on the point, at para-15 it was 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."

Learned counsel for the Respondent by placing reliance on the Special Bench decision, has submitted that the impugned order is not appealable. As such, appeal is fit to be dismissed on the grounds of maintainability.

Learned counsel for the appellant then submits that since the writ petition was withdrawn earlier on erroneous understanding of the provisions of law, petitioner would be remediless, since neither appeal is maintainable, nor any revision would lie against the interim order granting maintenance and lump-sum amount of Rs. 50,000/- as expenses of the proceedings. Therefore, learned counsel for the appellant submits that liberty may be given to the appellant to file a fresh writ petition or seek restoration of the disposed of writ petition WPC No. 1557/2019. Matrimonial suit is said to be still pending.

We are conscious of the predicament faced by the appellant that he can be rendered remediless if such liberty is not granted. Though instant appeal is not maintainable under section 19(1) of the Family Courts Act, but the order impugned is amenable to writ jurisdiction under Article 227 of the Constitution of India. We, therefore, grant liberty to the appellant to file a fresh writ petition or approach the Writ Court for recall of the order dated 24.06.2019. Instant appeal is dismissed as not maintainable, however with the aforesaid liberty.