summary
- Appelability of order under sec 24 of HMA
- As per Madras H "...an order passed by the Family Court under Section 24 of the Hindu Marriage Act is appealable under Section 19(1) of the Family Courts Act to the High Court ...."
- However an order passed by a CIVIL Court under Section 24 of the Hindu Marriage Act is NOT appealable because such orders are NOT covered by the family court act !!
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2013
CORAM:-
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
C.R.P.(PD) No.1765 of 2010 & M.P.No.1 of 2010
C.R.P.(PD) No.3246 of 2012 & M.P.No.1 of 2012
C.R.P.(PD) Nos.801, 1180, 1463, 1558, 1588 and 1668 of 2013
& M.P.Nos.1 of 2013
P.T.Lakshman Kumar .. Petitioner in CRP PD No.1765 of 2010
-Versus-
Mrs.Bhavani .. Respondent in CRP PD No.1765 of 2010
Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 28.01.2010 in I.A.No.1630 of 2007 in O.P.No.551 of 2007 on the file of the learned I Additional Judge, Family Court, Chennai.
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For Petitioner in CRP PD No.1765 of 2012 : Mr.N.Rajavadivelu
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For Respondent in CRP PD No.1765 of 2012 : No Appearance
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For Petitioner in CRP PD No.3246 of 2012 : Mr.P.Srinivas
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For Respondent in CRP PD No.3246 of 2012 : Mr.R.Arumugam
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For Petitioner in CRP PD No.801 of 2013 : Mr.D.Balaji
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For Petitioner in CRP PD No.1463 of 2013 : Mr.Rathina Ashokan
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For Respondent in CRP PD No.1463 of 2013 : Mr.M.Vivekanandan
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For Petitioner in CRP PD No.1558 of 2013 and
Respondent in CRP PD No.1668 of 2013 : Mrs.K.Sumathi
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For Respondent in CRP PD No.1558 of 2013 and
Petitioner in CRP PD No.1668 of 2013 : Mr.A.Mohan
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For Petitioner in CRP PD No.1588 of 2013 : Mrs.Gajalakshmi Rajendran
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C O M M O N O R D E R
Whether an order made under Section 24 of the Hindu Marriage Act, 1955 by a Family Court established under the Family Courts Act, 1984 is appealable under Section 19(1) of the said Act to the High Court ?.
The answer to this question is not uniform among various High Courts. A Full Bench of Allahabad High Court and Division Benches of Uttarakhand, Delhi and Madhya Pradesh High Courts have taken the view that such an order is appealable under Section 19 of the Family Courts Act. Quite contrary to the same, the Full Benches of Orissa High Court and Patna High Court and Division Benches of Karnataka, Rajasthan and Bombay High Courts have held that such an order is not appealable to the High Court under Section 19(1) of the Act.
2. So far as this High Court is concerned, thus far, this question has not been examined in detail. But, challenges to these orders are entertained under Article 227 of the Constitution of India [as done in the instant petitions], though, in few instances, appeals have also been entertained. During the course of hearing of these revision petitions, which have been filed challenging the orders passed by the Family Courts under Section 24 of The Hindu Marriage Act, this Court raised a doubt about the maintainability of these petitions under Article 227 of the Constitution of India since it gave an initial impression that these orders are appealable under Section 19(1) of the Family Courts Act. Therefore, this Court invited the respective counsel to advance arguments, at the first instance, in respect of the maintainability of these revisions. Accordingly, they did. Let me now proceed to consider the same.
3. Under Section 24 of the Hindu Marriage Act, the wife or the husband, as the case may be, who has got no independent income, sufficient for her or his support and the necessary expenses of the proceeding, may apply to the Court for an order for payment of the expenses of the proceeding and the monthly maintenance amount. Section 28 of the Hindu Marriage Act provides for an appeal against the decrees and orders made under various provisions of the HM Act which reads as follows:-
| 28. Appeals from decrees and orders-.
|
| (1) All decrees made by the court in any proceeding
| under this Act shall, subject to the provisions of sub-
| section (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 sub-section (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.
A reading of the above provision would make it clear that sub-section (1) of Section 28 provides for appeal against decrees, whereas, sub-section (2) provides for appeal against orders made under the Act.
4. Under Sections 9, 10, 11, 12, 13, 13-A and 13-B, the Court passes a decree. These decrees are undoubtedly appealable under sub-section (1) of Section 28 of the Act. Under Sections 24, 25 and 26, the Court passes an order. An order made either under Section 25 or 26 is undoubtedly appealable under sub-section (2) of Section 28 of the Act, provided the said order is not an interim order. In this provision, the Legislature has consciously omitted Section 24. The question, whether an order made under Section 24 of the Hindu Marriage Act by a Civil Court is appealable, came up for consideration on several occasions and the Courts have uniformly held that such an order of the civil court is non appealable.
5. Very recently, I had an occasion to examine the said question in Loganayaki Vs. V.Sivakumar in C.R.P.(PD).No.3252 of 2011 dated 21.03.2013 wherein, after having analysed the said provision and judgments of various High Courts, I held that the order made under Section 24 of the Act by a Civil Court is non-appealable as Section 24 has been consciously omitted from the preview of sub-section (2) to Section 28 of the Act. In that judgment, however, I did not have occasion to examine the question as to whether such an order made under Section 24 of the Act by a Family Court is appealable to the High Court under Section 19(1) of the Family Courts Act.
6. Chapter V of the Family Courts Act, 1984 deals with Appeals and Revisions. This Chapter contains only one section i.e. Section 19. Sub-sections (1), (2), (3) and (6) of Section 19 deal with appeals. Sub-section (4) of Section 19 deals with revisions. Sub-section (5) of Section 19 deals with both appeals and revisions. In the instant cases, we are concerned only with the question relating to appeals. Let us have a glance through Section 19 of The Family Courts Act.
| 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 judgement 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; and
|
| (3) Every appeal under this section shall be
| preferred within a period of thirty days from the date
| of the judgement 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 proceedings.
|
| (5) Except as aforesaid, no appeal or revision shall
| lie to any court from any judgement, 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.
7. While reading sub-section (1) to Section 19, one needs to note that the said Section starts with a non-obstante clause. According to this provision, notwithstanding anything contained in the Code of Civil Procedure, Code of Criminal Procedure or any other law, an appeal shall lie against a judgement or order which is not an interlocutory order. Here, the expression any other law undoubtedly includes the Hindu Marriage Act, 1955. Therefore, Section 28 of the Hindu Marriage Act, is not applicable to the decrees and orders of the Family Courts. Under Section 19(1) of the Family Courts Act, as against every judgement or order an appeal shall lie to the High Court. But the only restriction is that such an order should not be an interlocutory order. Similarly, no appeal shall lie against 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.
8. A comparative reading of Section 19 of the Family Courts Act and Section 28 of the Hindu Marriage Act would make it ipso facto clear that under Section 28 of the Hindu Marriage Act, an appeal shall lie against a decree or order as enumerated in the said provision, whereas, under Section 19 of the Family Courts Act, an appeal shall lie against a judgement or order.
9. In the Family Courts Act, the terms judgement, order and decree have not been defined. But, Section 2(e) of the Family Courts Act states as follows:
| 2(e) All other words and expressions used but not
| defined in this Act and defined in the Code of Civil
| Procedure, 1908 (5 of 1908) shall have the meanings
| respectively assigned to them in that Code.
10. In the light of the above provision, now, the question is whether an order made under Section 24 of the Act is stricto senso an order as defined in Section 2(14) of the Code of Civil Procedure or is it a judgement as defined under Section 2(9) of the Code of Civil Procedure. If it is construed as a judgement, undoubtedly, it is appealable under Section 19(1) of the Family Courts Act. On the contrary, if it is construed only as an order, an appeal shall lie against the same to the High Court under Section 19(1) of the Act, provided, the same is not an interlocutory order. Thus, the fundamental question is, whether a direction under Section 24 of The Hindu Marriage Act is a judgement or an order.
11. Now, let us have a glimpse of the definitions of the terms Decree, Judgment and Order as made in the Code of Civil Procedure which read thus:
| 2. Definitions. - In this Act, unless there is
| anything repugnant in the subject or context, -
|
| (1) ... ... ... ... ... ... ...
|
| (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.
|
| Explanation
|
| A decree is preliminary when further proceedings have
| to be taken before the suit can be completely disposed
| of. It is final 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 grounds of a decree or order;
|
| (14) order means the formal expression of any
| decision of a Civil Court which is not a decree;
As per Section 33 and Order XX, Rule 1 of CPC, after the case has been heard, the court shall pronounce judgement and on such judgement, a decree shall follow. What a judgement should contain is dealt with under Order XX, Rule 4 (2) of CPC as follows:-
| Judgements of other Courts.- Judgements of other
| courts shall contain a concise statement of the case,
| the points for determination, the decision thereon,
| and the reasons for such decision.
Under the Hindu Marriage Act, therefore, the court has to draw a decree as envisaged in Sections 9, 10, 11,12,13,13-A or 13-B of the Act, preceded by pronouncement of Judgement. Here again, the term judgement has not been defined in the Hindu Marriage Act. Similarly, what a judgement should contain has also not been dealt with in the Hindu Marriage Act.
12. But, in the Family Courts Act, what a judgement should contain is dealt with in Section 17 of the Act which reads thus:-
| 17. Judgment.- Judgment of a Family Court shall
| contain a concise statement of the case, the point for
| determination, the decision thereon and the reasons
| for such decision.
If one makes a simple comparison of Order XX, Rule 4 (2) of CPC and Section 17 of The Family Courts Act, it will make it clear that Section 17 of the Family Courts Act is a verbatim reproduction of Order XX, Rule 4(2) of CPC. In view of the same and in view of section 2(e) of The Family Courts Act, we have to necessarily import the meaning of the term 'judgement as defined in Section 2(9) of CPC to the Family Courts Act for the purposes of Section 19(1) of The Family Courts Act.
13. A close reading of Section 2(9) of CPC would reveal that a judgement is nothing but a statement containing a concise statement of the case, the points for determination , the decision and the reasons. If such a judgement is followed by a decree, in terms of Section 2(2) of CPC, then, as per Section 96 of CPC, such decree is appealable. If no decree can be drawn, then, it is only an order. If such order falls within the categories of orders enumerated in Section 104 of CPC, then, it is appealable otherwise, there is no appeal remedy in the CPC.
14. Turning to Section 28 of The Hindu Marriage Act, it provides for appeals against decrees and also orders under Sections 25 and 26 of the Hindu Marriage Act, provided they are not interlocutory orders. But, the Family Courts Act provides for appeals against judgements and orders and not against decrees. So far as the decisions under Sections 9, 10,11,12, 13-A and 13-B of the Hindu Marriage Act are concerned, the aggrieved need not wait for the decree being drafted by the Family Court as he can very well prefer appeal against the judgement itself.
15. A conjoint reading of Section 2(2) and 2(9) along with Order XX, Rule 4(2) of CPC would reveal that if there is any conclusive determination of any of the rights of the parties by adjudication, such decision is a judgement. Similarly, a conjoint reading of Section 2(14) and 2(2) would reveal that if there is no conclusive determination of any of the rights of the parties, such decision is only an order. In other words, an order pertains purely to the procedure regulating the conduct of the case. Thus, the real test is, whether the order is a decision, conclusively determining the rights of the parties?
16. In this regard, any further debate may not be fruitful without reference to the land mark judgement of the Hon'ble Supreme Court in Shah Babulal Khimji v. Jayaben D.Kania, (1981) 4 SCC 8. That was a case where the meaning of the term judgement in the context of Clause 15 of the Letters Patent came to be interpreted. It is needless to point out that under clause 15 of the Letters Patent , an appeal is provided for against a judgement. But, the term judgement has not been defined in the Letters Patent. Similarly, no appeal is provided for against a decree or order under Clause 15 of the Letters Patent. Therefore, a question arose before the Hon'ble Supreme Court as to what are the orders which can be termed as judgements in terms of Clause 15 of the Letters Patent, so as to hold that as against such orders appeal would lie. The Hon'ble Supreme Court, after making a detailed study of the judgements of various High Courts, in para 113, has held as follows:-
113. Thus, under the Code of Civil Procedure, a judgement consists of the reasons and grounds for a decree passed by a court. As a judgement constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined in the Code seems to be rather narrow and the limitations engrafted by section 2(2) cannot be physically imported into the definition of the word 'judgment' as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere. The intention of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense.
[Emphasis supplied]
In the said judgement, the Hon'ble Supreme Court went on to classify the judgements into three categories viz., (1) a final judgement, (2) a preliminary judgement, and (3) an interlocutory or intermediary judgement for the purposes of The Letters Patent. In para 143 of the said judgement, the Hon'ble Supreme Court proceeds to say that any order which is considered to be a 'judgment' will be appealable by virtue of the provisions contained in clause 15 of the Letters Patent. In a separate judgement, while concurring, Hon'ble Sen.J., in para 151 has held as follows:-
An order which is appealable under the Code or under any other statute becomes appealable as the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as 'judgement' under Clause 15 of the Letters Patent. An order which may be appealable under Clause 15 of the Letters Patent as a 'judgement' becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as 'judgement'. An order appealable under the Letters Patent may or may not be appealable under the Code.
17. In para 119 (2) of the aforesaid judgement, the Hon'ble Supreme Court has, among other things, given an illustration of an order which is construed as a judgement which reads thus:-
119. (2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
The above judgement is frequently quoted with approval in many subsequent judgements of the Supreme Court. But, it cannot be lost sight of that the interpretation given to the word 'judgement' in the above said judgement cannot be simply imported to the term judgement as defined in the Code of Civil Procedure because, as I have already pointed out, in the aforesaid judgement, the Hon'ble Supreme Court has held in clear terms that the expression, 'judgement' should receive wider meaning for the purposes of clause 15 of the Letters Patent, whereas, under the Code of Civil Procedure, it should receive only a narrow meaning. To put it lucidly, all judgements in terms of Section 2 (9) of CPC are judgements for the purposes of clause 15 of the Letters Patent, but not vice versa.
18. Keeping the above legal position in mind, this court has to interpret an order as to whether the same is a judgement in terms of Section 2(9) of CPC for the purposes of Section 19(1) of The Family Courts Act. While doing so, the court may take the principles stated in Shah Babulal Khimji's case [cited supra] for guidance. As we have seen in the judgement, the striking difference between a judgement and an order is whether there is conclusive determination of a right of a party.
19. In view of the above legal position, now the question is, whether an order under Section 24 of The Hindu Marriage Act involves any adjudication and conclusive determination of any of the rights of the parties. Undoubtedly, it is the right of the spouse, to get monthly allowance for his/her support till the disposal of the main case and also to get litigation expenses from the other. This right is adjudicated upon and conclusively determined in an order under Section 24 of the Hindu Marriage Act. This decision is final and the same will have no bearing in the main case. This is conclusive and so, it is a judgement for the purposes of Section 19(1) of The Family Courts Act and thus, it is appealable.
20. Now, let us examine as to what is the view of the other High Courts in this respect. A Full Bench of the Allahabad High Court, in Smt.Kiran Bala Srivastava Vs. Jai Prakash Srivastava reported in 2005 (23) LCD 1, was invited to answer the following question
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?
After having thoroughly examined the said question, the Full Bench has held in paragraphs 20 and 21 as follows:-
"20. In other words, the Apex Court ruled that order or interlocutory orders 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 an ancillary proceeding, will be "judgment".
21. What noticeable in sub-section (1) of Section 19 of the Act of 1984, is that deviating from Section 96 of the Code of 1908 or from sub-section (1) of 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 judgment. It provides for appeals only against decrees [see: sub-section (1)] and against certain orders [see: sub-section (2)]. The question arises as to why the legislature made a departure by providing appeal against judgments also, under sub-section (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, as given by the Apex Court in Khimji's case (supra)."
The Full Bench eventually in paragraphs 28 to 30 answered the reference as follows:-
|
| 28. .... 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 judgement 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, the main petition
| remains alive for disposal, do not prevent the order
| under Section 24 from falling within the definition of
| the judgement. 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 judgement for all legal and practical purposes, it
| matters, little whether the same is interlocutory or
| final.
|
| 29. 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 judgement 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 judgement for purposes of
| sub-section (1) of Section 19. As observed earlier and
| as held in Full Bench decision of this case in Prem
| Latas case (supra), second appeal also lay against
| decrees and orders initially appealable under sub-
| section (1) or sub-section (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 judgements 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 order
| words, against the same decision or adjudication ,
| there could not be two appeals.
|
| 30. We agree with the view taken by the Division
| Bench in Avadhesh Narain Srivastava's case. Since
| order under Section 24, granting pendente lite
| maintenance is a judgement, so appeal will lie under
| sub-section (1) of Section 19 of the Act of 1984.
|
| [Emphasis supplied]
21. The above judgement of Allahabad High Court in Smt.Kiran Bala Srivastava case came up for consideration before a Division Bench of the High Court of Uttarakhand at Nainital in Rahul Samrat Tandon Vs. Smt.Neeru Tandon reported in AIR 2010 UTR 67 : Manu/UC/0781/2010. In the said judgment, after expressing full agreement with the Full Bench judgment of the Allahabad High Court, the Division Bench of Uttarakhand High Court finally answered the question in paragraph 17 as follows:-
| 17. The present appeal has been filed by the
| husband challenging the order of maintenance pendente
| lite under Section 24 of the Act of 1955, yet we are
| concerned with the larger impact of a judgment in such
| cases, where primarily the issue of maintenance is
| crucial to a party to a litigation. The Full Bench of
| Allahabad High Court, referred above, after discussing
| all the relevant law, including the law cited by the
| learned counsel for the respondent came to the
| conclusion that an appeal under Section 19(1) of the
| Act of 1984 is maintainable against an order passed
| under Section 24 of the Act of 1955. We are in
| complete agreement with the observations of the Full
| Bench of the Allahabad High Court, and we feel that it
| is necessary that a broad meaning to the word
| "judgment" must be assigned and therefore, we hold
| that the impugned order dated 20.3.2010 was in the
| nature of a "judgment" and the instant Special Appeal
| preferred by the appellant is maintainable, under
| Section 19(1) of the Family Courts Act, 1984.
|
| [Emphasis supplied]
22. The Madhya Pradesh High Court also holds the view that an order under Section 24 of The Hindu Marriage Act passed by a Family Court is a judgement. In Raghvendra Singh Choudhary v. Smt.Seema Bai, AIR 1989 MP 259, a Division Bench of Madhya Pradesh High Court has held as follows:-
| 4. Therefore, an appeal will lie against an
| interlocutory order if it is a Judgment. Clearly the
| Order passed Under Section 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 this
| question is concerned and an appeal lies against such
| an order. We are fortified by the view taken by the
| Bombay High Court in Dinesh v. Usha, AIR 1979 Bom 173
| that pendente lite maintenance under Section 24 of the
| Hindu Marriage Act, 1955, raises controversy
| independently of the suit and decision thereon
| concludes controversy finally between parties and as
| such letters patent appeal is maintainable.
23. The very same question came up for consideration before a Division Bench of the Delhi High Court in Manish Aggarwal Vs. Seema Aggarwal reported in 192 (2012) DLT 714 : MANU/DE/4612/2012. The above stated Full Bench Judgments of the Allahabad High Court and the Division Bench judgement of Uttarakhand High Court were cited for consideration. Before the Delhi High Court, the order under challenge was the one made under Section 125 of the Code of Criminal Procedure by a Family Court. Since, as per Section 19(2), no appeal lies against an order made under Chapter IX of the Code of Criminal Procedure, the Division Bench held that the remedy lies only by way of revision. The Division Bench further went into the question as to whether an order made under Section 24 of the Hindu Marriage Act is appealable under Section 19(1) of the Family Courts Act. The Division Bench concurred with the views of the High Courts of Uttarakhand, Allahabad, Madhya Pradesh, Gujarat and Calcutta. In paragraph 24 of the judgment, the Division Bench has held as follows:
| 24. These are, thus, proceedings within proceedings
| which have the character of finality attached to them,
| especially as the same visit the parties with civil
| consequences. As to what are these civil consequences
| have again been set out in the opinion of the
| Allahabad High Court in Smt. Kiran Bala Srivastava
| case (supra). The denial of maintenance would greatly
| prejudice the ability of the disadvantaged spouse to
| contest proceedings while, on the other hand,
| inability to pay maintenance by the spouse has serious
| consequences, as it would result in striking out the
| defence/dismissal of the substantive cause. Orders
| passed under Sections 24, 25 or 26 of the HM Act fit
| the definition of an intermediate order, which may
| adversely affect valuable rights.
Finally, the Division Bench concluded in paragraph 26 as follows:
26. We, thus, conclude as under:-
| i. In respect of orders passed under Sections 24 to
| 27 of the HM Act appeals would lie under Section 19
| (1) of the said Act to the Division Bench of this
| Court in view of the provisions of sub- section (6) of
| Section 19 of the said Act, such orders being in the
| nature of intermediate orders. It must be noted that
| sub-section (6) of Section 19 of the said Act is
| applicable only in respect of sub-section (1) and not
| sub-section (4) of Section 19 of the said Act.
|
| (ii) No appeal would lie under Section 19 (1) of the
| said Act qua proceedings under Chapter 9 of the
| Cr.P.C. (Sections 125 to 128) in view of the mandate
| of sub-section (2) of Section 19 of the said Act.
|
| iii. The remedy of criminal revision would be
| available qua both the interim and final order under
| Sections 125 to 128 of the Cr.P.C. under sub-section
| (4) of Section 19 of the said Act. iv. As a measure of
| abundant caution we clarify that all orders as may be
| passed by the Family Court in exercise of its
| jurisdiction under Section 7 of the said Act, which
| have a character of an intermediate order, and are not
| merely interlocutory orders, would be amenable to the
| appellate jurisdiction under sub-section (1) of
| Section 19 of the said Act.
24. As seen above, in the said judgement, the Division Bench, has held that an order made under Section 24 of The Hindu Marriage Act is an intermediate order and so, it is appealable under Section 19(1) of the Family Courts Act.
25. Now, turning to the contrary view taken by the other High Courts, let us first take up the decision of the Full Bench of the Orissa High Court in Swarna Prava Tripathy Vs. Dibyasingha Tripathy reported in AIR 1998 Orissa 173. The question referred to the Full Bench is Whether an order granting interim maintenance pendente lite is appealable under Section 19(1) of the Family Courts Act, 1984? and if it is held that the appeal is not maintainable, what remedy is available to the aggrieved party ?
26. After having referred to Section 19 of the Family Courts Act, the Full Bench examined the said question in the angle as to whether an order made under Section 24 of the Hindu Marriage Act is an interlocutory order or a final order. The Court finally held in paragraph 8 as follows:-
| 8. In view of the law laid by the Apex Court, the
| inevitable conclusion is that an order passed under
| Section 24 or 26 of Marriage Act is an interlocutory
| order and as such, no appeal would lie in terms of
| Section 19(1) of the Act.......
27. The next judgment is again a Full Bench judgment of Patna High Court in Neelam Kumari Sinha Vs. Shree Prashant Kumar reported in 2011 (1) CTC 753. In that case, the question referred to the Full Bench was the same viz.,
| Whether an appeal would be available under Section
| 19(1) of the Family Courts Act, 1984, against an order
| passed under Section 24 of the Hindu Marriage Act,
| 1955?
28. In this case, the Full Bench approached the issue in the angle as to whether an order made under Section 24 of the Hindu Marriage Act is an interlocutory order or a final order. In paragraph 9, the Full Bench has identified the issue as follows:
| 9. The centripodal issue that emerges for
| consideration is whether an order passed under Section
| 24 of the 1955 Act would be an interlocutory order so
| that it will not be covered within the meaning of
| Section 19(1) of the 1984 Act.
29. Thereafter, the Full Bench proceeded to consider the Full Bench judgment of the Orissa High Court in Swarna Prava Tripathy case and other judgments referred to in Swarna Prava Tripathy case and has concurred with the view taken by the Full Bench of the Orissa High Court to come to the conclusion that such an order is only an interlocutory order and therefore no appeal lies against such an order under Section 19(1) of the Family Courts Act.
30. A careful reading of the above Full Bench judgments would reflect that the Honble Full Benches did not examine the question as to whether an order made under Section 24 of the Hindu Marriage Act is a judgment as defined under Section 2(9) of the Code of Civil Procedure. The only question that the Full Benches examined was as to whether an order made under Section 24 of the Hindu Marriage Act is a final order or an interlocutory order.
31. Let us now turn to the Karnataka High Court. In T.V.Satyanarayana Vs. Subba Aruna Meenakshi reported in ILR 1988 KAR 1074, the Division Bench approached this question in the angle as to whether an order made under Section 24 of the Hindu Marriage Act is a judgment. The Division Bench has considered the judgment of the Honble Supreme Court in Shah Babulal Khimjis case (cited supra). Then the Division Bench expressed its agreement with the view that an order made under Section 24 of the Hindu Marriage Act is a judgment. Having held so, however, the Division Bench was not prepared to hold that the same is appealable under Section 19(1) of the Family Courts Act. The Division Bench has taken the view, that though an order made under Section 24 of the Hindu Marriage Act is a judgement, since it is interlocutory in nature, no appeal lies against the same under Section 19(1) of the Act. This finding is found in paragraphs 10 to 12 of the judgment, which reads as follows:-
|
| 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 incorporating 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."
|
| [Emphasis supplied]
32. A Division Bench of the Bombay High Court in Sunil Hansraj Gupta v. Payal Sunil Gupta, AIR 1991 Bom 423 : 1991 Mah LJ 737, considered the same question and held as follows:-
8. ......Thus, having regard to the object of section 24 of the H. M. Act, the wife of such order and the fact that such order does not decide any issue arising between the parties in the H. M. Petition one way or the other, and that the lis continues, an order under section 24 of the H. M. Act is not a 'judgment' in terms of section 17 of the Family Courts Act but it is an order in the nature of interlocutory order falling outside the scope of section 19(1) of the Family Courts Act.
33. A close reading of all the above judgements would reveal the following:-
(i) The Full Bench of Allahabad and Division Benches of Uttrakhand and Madhya Pradesh High Courts, in the judgements, cited supra, on applying the test formulated in Shah Babulal Khimji's case [cited supra] have firmly concluded that an order made under Section 24 of The Hindu Marriage Act by a Family Court is a judgement in terms of Section 2(a) of CPC and so, the same is appealable under Section 19(1) of The Family Courts Act .
(iii) The Division Bench of Delhi High Court, in the judgement cited supra, has held the view that it is an intermediate order and so it is appealable under Section 19(1) of The Family Courts Act.
(iii) On the contrary, the Full Benches of Orissa and Patna High Courts have not examined the said question as to whether such an order is a judgement. They have proceeded on the premise that it is only an order and thus, have examined the question as to whether the said order is a final order or an interlocutory order and have held that such an order is an interlocutory order and so, it is not appealable under Section 19(1) of The Family Courts Act.
(iv) The Division Bench of Karnataka High Court, in the judgement cited supra, has held the view that it is of course a judgement, but, it is not appealable under Section 19(1) of The Family Courts Act as it is interlocutory in nature.
(v) The Division Bench of Bombay High Court, in the judgement cited supra, has held the view that it is not a judgement, but it is only an interlocutory order and so, it is not appealable under Section 19(1) of The Family Courts Act.
34. Having considered these judgements deeply and having analysed the relevant provisions, I am of the view that the view taken by the Full Bench of Allahabad and Division Benches of Uttrakhand and Delhi High Courts are acceptable to me. I have already dealt with my reasonings for the said conclusion in detail in the earlier paragraphs of this order. With respect, I regret , I am unable to subscribe to the view of the Full Benches of Orissa, Patna and the Division Benches of Karnataka and Bombay High Courts. I hold that an order made under Section 24 of the Hindu Marriage Act by a Family Court is a judgement for the purposes of Section 19(1) of The Family Courts Act and, therefore, it is appealable under Section 19(1) of the Family Courts Act.
35. In view of the above legal position, the contention that an order made under Section 24 of The Hindu Marriage Act is only an interlocutory order no more survives for consideration. However, let us, hypothetically, go into debate on this question also. Let us proceed on the assumption that the decision of the Family Court under Section 24 of The Hindu Marriage Act is an order. This question may be examined by keeping in mind the judgment of the Honble Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : 1977 (4) SCC 551. In that case, the Honble Supreme Court was invited to examine the question as to what is an interlocutory order in terms of Section 397 of the Code of Criminal Procedure. While examining the said question, in paragraph 13 it has gone into the civil law also and has held as follows:-
There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course..
36. A close reading of the above judgment besides the judgment of the Honble Supreme Court in Baldevadas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., reported in AIR 1970 SC 406 : 1969 2 SCC 201, makes it clear that an order which is not, pure and simple, an interlocutory order, though not a final order, is revisable under Section 397(2) of the Code of Criminal Procedure.
37. In my considered view, since an order made under Section 24 of the Hindu Marriage Act puts an end to the right of the claimant for interim alimony, as well as, the litigation expenses, assuming that it is an order, certainly, it is not an interlocutory order as this order will have no bearing on the main case. As has been held by the Division Bench of the Delhi High Court, in Manish Aggarwal's case cited supra, at the most, we may call it as an intermediate order, which is appealable under Section 19(1) of the Family Courts Act.
38. Now turning to the position in this court, in N.Balasubramanian v. V.Chitra, [1992] 2 LW 34, maintainability of a civil revision under Section 19(4) of the Family Courts Act against an order under Section 24 of The Hindu Marriage Act was examined by a Division Bench. While answering the said question in the negative, the Division Bench in para (3) has held as follows:-
| 3. It is clear that the above said new sub-section
| (4) only provides for a revision against an order
| under Chapter IX of the Criminal Procedure Code, 1973
| (which begins with Section 125 thereof) providing for
| maintenance to wives and others generally. But the
| above said order in I.A. No.732 of 1991 is not an
| order under the above said Chapter IX of the Criminal
| Procedure Code, 1973 in which case the order would
| also be a final order. As already stated the order in
| IA. No.732 of 1991 is only an interim order pending a
| litigation with reference to which the above said sub-
| section (4) will not apply. There is also no other
| provision under the Family Courts Act providing for a
| revision against such interim orders. In fact, the old
| Section 19(4) which is same as the present Section
| 19(5) after the above said amendment, provides that,
| except as aforesaid no appeal or revision shall lie to
| any Court from any judgment, order or decree of Family
| Court, so even Section 115 C.P.C. will not apply.
| Hence a revision will not lie against the order in
| I.A. No.732 of 1991 (though before coming into force
| of the Family Courts Act, a revision may lie after the
| amendment of Section 28 of the Hindu Marriage Act of
| 1976).
In this case, the Division Bench was concerned only with the question as to whether a revision, either under Section 19(4) of The Family Courts Act or under Section 115 of CPC, is maintainable. In this case, the Division Bench did not elaborately deal with the question as to whether an order made under Section 24 of the Hindu Marriage Act is a judgement and whether the same is, therefore, appealable. Of course, there is a passing remark made by the Division Bench, wherein it has stated that an order made under Section 24 of the Hindu Marriage Act is certainly an interlocutory order and so, an appeal under Section 19(1) of The Family Courts Act will not lie. This observation cannot be construed as a binding precedent at all for the reason that the Division Bench did not examine the said question at all, that too, in the light of the judgement of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D.Kania, 1981 (4) SCC 8. But, before this very High Court, appeals under Section 19(1) of The Family Courts Act against orders passed under Section 24 of The Hindu Marriage Act were entertained. To cite one instance, I may quote the order of another Division Bench of this Court in R.Ravichandran v. Gayathiri [C.M.A.Nos.2166 & 2167 of 2007 dated 27.11.2007] wherein two appeals filed under Section 19(1) of The Family Courts Act challenging orders of the Family Court under Section 24 of The Hindu Marriage Act were entertained and finally disposed of by the Division Bench. Despite the said position, day in and day out, number of revisions under Article 227 of The Constitution of India, challenging the order under Section 24 of The Hindu Marriage Act, are entertained. As I have pointed out at the beginning of this order, so far, this court has not examined the crucial question as to whether an appeal would lie to the High Court against an order under Section 24 of The Hindu Marriage Act passed by a Family Court. That is the reason why, in the instant revision petitions, I had to make a complete survey of the judgements of various High Courts and the relevant provisions to examine the said question.
39. Some of the learned counsel expressed their apprehension that it will result in anomaly if this court holds that an order made under Section 24 of the Hindu Marriage Act by a Family Court is appealable, whereas, similar order made by a Civil Court is not appealable. In this regard, we need to be mindful that an appeal is a creature of statute. Of course, it is true that the Hindu Marriage Act does not provide for appeal against such order whereas the Family Courts Act provides for such appeal. This is the wisdom of the parliament. As per the Hindu Marriage Act, the provisions of the Evidence Act are strictly applicable, whereas, as envisaged in Section 14 of the Family Courts Act, the Family Court may receive as evidence any report, statement, information, or matter that may in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act. Thus, an order by a Civil Court under Section 24 of The Hindu Marriage Act is made strictly on proof of facts as per the Evidence Act, whereas, an order of the Family Court is based on relevant, irrelevant, admissible and inadmissible evidence. This may be the reason, I believe , why the Parliament in its wisdom has thought it fit to provide for right of appeal against an order of the Family Court made under Section 24 of The Hindu Marriage Act since, the appellate court can reappreciate the evidence unlike in a revision. Thus, I find no anomaly or dichotomy at all in this regard as is apprehended at the bar.
40. In view of the forgoing discussions, I hold that an order passed by the Family Court under Section 24 of the Hindu Marriage Act is appealable under Section 19(1) of the Family Courts Act to the High Court and since there is such an alternative remedy, in general, a challenge under Article 227 of the Constitution of India is not maintainable.
41. In view of the said conclusion, I have no option but to direct the Registry to convert the instant Civil Revision Petitions as Civil Miscellaneous Appeals and list the same before a Division Bench of this Court after obtaining necessary orders from My Lord the Honble The Acting Chief Justice.
kk/kmk
To
1. The Principal Judge,
Family Court,
Chennai.
2. The I Additional Judge,
Family Court,
Chennai.
3. The II Additional Judge,
Family Court,
Chennai
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