Telangana High Court
Mrs. Esha Sharma vs Col Sameer Sharma on 13 March, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL No.136 OF 2023
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. A. Sai Chandra Haas, learned counsel for the appellant and Mr. Mudunuri Prudhvi Raj, learned counsel for the respondent.
2. The present appeal is filed by the appellant - wife under Section - 19 of the Family Courts Act, 1984 (for short 'Act, 1984') challenging the order dated 08.05.2023 in I.A. No.1096 of 2022 in FCOP No.223 of 2021 passed by learned Judge, Principal Family Court, City Civil Court at Secunderabad.
3. The respondent - husband had filed a petition vide FCOP No.223 of 2021 under Section - 13 (1) (ia) of the Hindu Marriage Act, 1955 read with Section - 7 of the Family Courts Act, 1984 (for short 'Act, 1984') against the appellant - wife seeking decree of divorce dissolving the marriage between them performed on 28.12.2001. During pendency of the said FCOP, the appellant herein - wife has also filed an Interlocutory Application vide I.A. No.1096 of 2022 2 KL,J & PSS,J FCA No.136 of 2023 under Section - 24 of the Hindu Marriage Act, 1955 seeking a direction to the respondent herein to pay Rs.1,50,000/- per month towards interim maintenance till disposal of the main O.P. to her and her two minor children and Rs.25,000/- towards litigation expenses. Vide impugned order dated 08.05.2023, the learned Family Court allowed the said petition in part directing the respondent herein to pay Rs.15,000/- per month towards rent from the date of eviction, in case the appellant and children are evicted from Army Quarters or in the alternatively provide alternate accommodation to her and children. Challenging the said order, the appellant - wife preferred the present appeal.
4. While the matter stood thus, learned counsel for the respondent - husband raised an objection with regard to maintainability of the present appeal under Section - 19 of the Act, 1984 on the ground that the impugned order is only an Interlocutory Order and, therefore, the present appeal under Section - 19 of the Act, 1984 is not maintainable.
5. Whereas, learned counsel for the appellant, would contend that there is trapping of finality in the impugned order. The rights of the appellant are substantially affected by virtue of impugned order. It 3 KL,J & PSS,J FCA No.136 of 2023 is not an interlocutory order. Though it is an intermediary order, it attained finality and, therefore, the present appeal is maintainable.
6. In view of the aforesaid rival submissions, it is relevant to note that a similar issue fell for consideration before a Full Bench of Allahabad at Lucknow Bench in Kiran Bala Srivastava v. Jai Prakash Srivastava 1. In the said case, husband filed a suit vide O.S. No.77 of 1987 against the wife under Section - 13 of the Hindu Marriage Act, 1955 in a Family Court at Lucknow. Wife moved an application under Section - 24 of the Act, 1955 claiming to herself and to her daughter pendent lite maintenance @ Rs.8,000/- a month and the litigation expenses to the tune of Rs.11,000/-. The Family Court therein passed an order directing the husband to pay pendent lite maintenance @ Rs.500/- a month from the date of application and also to pay Rs.2,000/- in lump sum towards expenses of the litigation. Wife has filed an application seeking enhancement of the monthly maintenance. Husband has filed an application under Order XLVII read with 151 of CPC to review the said orders i.e., awarding an amount of Rs.1,000/- towards pendent lite maintenance and enhancement order dated 28.07.2022. The Family Court disposed of 1 . MANU/UP/2771/2004 4 KL,J & PSS,J FCA No.136 of 2023 the said application vide order dated 07.03.2002 directing the husband to pay pendent lite maintenance in terms of earlier order dated 16.07.2001, but subject to adjustment of amount paid pursuant to the orders passed under Section - 125 of Cr.P.C. Challenging the said order, wife preferred an appeal. The said appeal was listed before a Division Bench. Vide order dated 03.04.2002, a Division Bench referring to the matter to the full Bench to answer the following reference:
"Whether appeal under Section - 19 of the Family Act, 1984, would lie against order passed under Section - 24 of the Hindu Marriage Act for grant of interim maintenance."
7. Full Bench of the Allahabad High Court at Lucknow Bench, referring to the provisions of the Hindu Marriage Act, Section - 19 of the Act, 1984 and the principle laid down in several judgments including the judgment of the Apex Court in Shah Babulal Khimji v. Jayaben D. Kania 2 held that since the orders under Section - 24 of the Hindu marriage Act granting pendent lite maintenance is a judgment, so appeal will lie under Section - 19 (1) of the Act, 1984. 2 . (1981) 4 SCC 8 5 KL,J & PSS,J FCA No.136 of 2023
8. Full Bench of Rajasthan High Court at Jodhpur in Kavita Vyas v. Deepak Dave 3 relying on the decision in Shah Babulal Khimji2 and Kiran Bala Srivastava1 and also several other judgments held that an appeal shall lie under Section - 19(1) of the Act, 1984 against an order passed by Family Court under Section - 24 of Hindu Marriage Act.
9. Similar issue fell for consideration before a Division Bench of Delhi High Court in Manish Aggarwal v. Seema Aggarwal 4. The Division Bench considered provisions of the Hindu Marriage Act, Section - 19 of the Act, 1984 and the principle laid down by the Apex Court in Shah Babulal Khimji2, Amarnath v. State of Haryana 5, Madhu Limaye v. State of Maharashtra 6 and V.C. Shukla v. State 7 in paragraph No.25 held as under:
"25. 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 subsection (6) of Section 19 of the said Act, such orders being in the 3 . AIR 2018 Raj. 72 4 . MANU/DE/4612/2012 5 . AIR 1977 SC 2185 6 . AIR 1978 SC 47 7 . 1980 (2) SCR 380 6 KL,J & PSS,J FCA No.136 of 2023 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."
10. As discussed above, in the presence case, the husband had filed the aforesaid FCOP seeking dissolution of marriage and during pendency of the said FCOP, wife had filed an I.A. under Section - 24 of the Hindu Marriage Act seeking pendent lite maintenance from the husband. Learned Family Court allowed the said I.A. in part. 7
KL,J & PSS,J FCA No.136 of 2023 Therefore, wife had preferred the present appeal seeking enhancement. Thus, the rights of the wife were affected substantially and there is trapping of finality in the impugned order. Therefore, impugned order is not an interlocutory order and it is an intermediary order. The present appeal is maintainable as held by the Delhi High Court in Manish Aggarwal4.
11. It is relevant to note that the appellant herein is staying in the Quarter No.234/2, Thimmaiah Line, Secunderabad, allotted to the respondent. In view of his transfer, the Army Authorities have issued an eviction order dated 27.01.2023 under Section - 5 (1) of the Public Premises Act, 1971. Challenging the said order, the appellant had filed a writ petition vide W.P. No.2918 of 2023, and vide order dated 02.02.2023, this Court directed respondent Nos.2 and 4 therein not to evict the appellant herein under the guise of impugned order dated 27.01.2023 till 01.03.2023. However, the said writ petition was dismissed by this Court on 20.09.2023 with the following observation:
" 11. In the light of the above, this Court is not inclined to interfere with the impugned order passed by the respondents and the Writ Petition is accordingly dismissed. However, taking into consideration the overall circumstances of the 8 KL,J & PSS,J FCA No.136 of 2023 case, the respondents are directed to permit the petitioner to continue to occupy the quarter in question till 31.12.2023 and the petitioner is further directed to vacate the quarter in question on or before 31.12.2023 and handover the same to the fourth respondent, without fail. In case, if the petitioner is aggrieved by the order passed by the Family Court in I.A.No.1096 of 2022, it is open for her to take appropriate steps in accordance with law."
12. It is also the specific contention of the appellant herein that the respondent herein has not filed statement of assets and liabilities as per the guidelines issued by the Apex Court in Rajneesh v. Neha 8. The said aspects were not considered.
13. The learned Family Court has to consider the socio- economic background of the parties which is a relevant consideration while determining income of the respective spouse and the wife is entitled to the same standard of living as she was used to when living with her husband. The parties have to file documentary evidence in proof of their contentions. In the present case, though the appellant had filed the aforesaid application vide I.A. No.1096 of 2022 under 8 . (2021) 2 SCC 324 9 KL,J & PSS,J FCA No.136 of 2023 Section - 24 of the Hindu Marriage Act claiming an amount of Rs.1.50 lakhs per month towards interim maintenance to her and to her two minor children and Rs.25,000/- towards litigation expenses, she has not filed proper documentary evidence. As discussed above, there is no consideration of the eviction order dated 27.01.2023 and filing of writ petition and granting of interim order therein etc., were not considered by the Family Court in the impugned order.
14. Therefore, the impugned order dated 08.05.2023 in I.A. No.1096 of 2022 in FCOP No.223 of 2021 passed by learned Family Court is set aside and the matter is remanded back to the learned Judge, Principal Family Court, City Civil Court, Secunderabad, with a direction to consider the aforesaid aspects and decide I.A. No.1096 of 2022 afresh in accordance with law as expeditiously as possible, preferably within a period of one (01) month from today. However, till disposal of the aforesaid I.A., the respondent shall pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) per month to the appellant as well her two children towards interim maintenance. The learned Judge, Principal Family Court shall make an endeavour to dispose of the said FCOP itself as expeditiously as possible in accordance with law. Liberty is granted to the appellant and the 10 KL,J & PSS,J FCA No.136 of 2023 respondent herein to raise all the pleas and contentions which they have raised in the present appeal.
15. The present Family Court Appeal is accordingly disposed of. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
___________________ K. LAKSHMAN, J ___________________ P. SREE SUDHA, J 13th March, 2024 Mgr