Delhi High Court
Jayanti Prasad Gautam vs Pragya Gautam on 19 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th September, 2018.
+ CM(M) 140/2018 & CM No.4633/2018 (for stay)
JAYANTI PRASAD GAUTAM ..... Petitioner
Through: Mr. J.M. Kalia and Ms. Bhawana
Garg, Advs.
Versus
PRAGYA GAUTAM ..... Respondent
Through: Mr. Mukesh Bhardwaj, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 17th September, 2018, following order was passed:
"1. This petition under Article 227 of the Constitution of
India impugns the orders [dated 22nd August, 2017 and 3rd
October, 2017 in H.A.M. No.10/2016 of the Court of Principal
Judge Family Courts (South-East)] granting litigation expenses
of Rs.11,000/- and interim maintenance of Rs.10,000/- per
month to the respondent who is the daughter of the petitioner,
against the petitioner.
2. This petition came up first before this Court on 6 th
February, 2018 when notice thereof was ordered to be issued
and the operation of the impugned order stayed. The respondent
has filed a reply to the petition to which rejoinder has been
filed.
3. Attention of the counsel for the petitioner is drawn to the
dicta of the Division Bench of this Court in Manish Aggarwal
Vs. Seema Aggarwal ILR 2013 (1) Del 210 holding that against
orders under Sections 24 to 27 of the Hindu Marriage Act,
1955, appeal lies under Section 19(6) of the Family Courts Act,
CM(M) 140/2018 Page 1 of 6
1984. On parity, an appeal would lie under Section 19(6) of the
Family Courts Act against an order of maintenance under the
Hindu Adoption and Maintenance Act, 1956 also.
4. However since neither counsel is aware of the said
judgment, it is deemed appropriate to grant them an opportunity
to study and respond.
5. On request, list on 19th September, 2018."
2. Today, the counsel for the petitioner states that though there is no
mention of Hindu Adoption and Maintenance Act, 1956 in Manish
Aggarwal supra, but on the parity of reasoning given therein, appeal under
Section 19(6) of the Family Courts Act, would lie against the impugned
order also.
3. I may add, that the reasons which prevailed in Manish Aggarwal
supra for holding orders passed under Sections 24 to 27 of the Hindu
Marriage Act to be appealable under Section 19(1) of the Family Courts Act
were that, (i) under Section 19(1) of the Family Courts Act, save as provided
in Section 19(2), an appeal lies from every judgment or order of Family
Court, to the High Court, both on facts and law; (ii) qua an order or judgment
of the Family Court, the provision of appeal under Section 19 of the Family
Courts Act would prevail, irrespective of what is contained in the Cr.P.C.,
CPC or any other law which would include the Hindu Marriage Act; (iii)
however the right of appeal comes with one limitation i.e. it does not lie
against an interlocutory order; (iv) question thus arises as to what is meaning
of interlocutory order; (v) the orders passed under Sections 25 and 26 of the
Hindu Marriage Act were appealable under Section 28(2) thereof, provided
they were not interim orders; (vi) that the orders passed for permanent
CM(M) 140/2018 Page 2 of 6
alimony and maintenance under Section 25 per se are in the nature of final
orders as they are passed at the time of passing of the decree or any time
subsequent thereto, unless they are procedural in nature; (vii) that the issues
of interim maintenance pending matrimonial proceedings are dealt with
under Section 24 of the Hindu Marriage Act; (viii) Section 26 of the Hindu
Marriage Act on the other hand deals only with passing of interim orders and
making provision in the decree as may be deemed just and proper with
respect to custody, maintenance and education of minor children; (ix) orders
passed under Sections 25 and 26 were specifically incorporated as one of the
species against which an appeal would lie under Section 28(2) of the Hindu
Marriage Act; (x) the only way by which full effect can be given to the
appeal provision in Section 28 of the Hindu Marriage Act is by construing
the expression "interim orders" used in Section 28(2) to mean procedural
orders, passed while dealing with proceedings under Sections 25 and 26 of
the Act; (xi) though Legislature had amended Section 28(1) of the Marriage
Act in the year 1976 by removing the provision for appeal against all kinds
of orders, except those covered by Section 28(2), but subsequently, in the
year 1984, while enacting the Family Courts Act, in Section 19(1) thereof
provided for an appeal from all judgments and orders, not being
interlocutory orders; (xii) the scope of appeal under Section 19(1) of the
Family Courts Act cannot take its colour from the scope of appeal under
Section 28 of the Hindu Marriage Act particularly because of the non
obstante clause contained in Section 19(1) of the Family Courts Act and
Section 19(1) using both expressions 'judgment' and 'order'; (xiii) the
legislature was thus conscious of the consequences of providing for appeals
from orders which are not interlocutory orders; (xiv) as explained in Shah
CM(M) 140/2018 Page 3 of 6
Babulal Khimji Vs. Jayaben D. Kania (1981) 4 SCC 8, even an
interlocutory order could be called a judgment when it has the quality of
attaching finality to it; (xv) though the order determining maintenance under
Section 24 of the Hindu Marriage Act is of interim maintenance but the
proceedings are final in nature, till the decision of the main matter; these are
thus, proceedings within proceedings which have the character of finality
attached to them, as the same visits the parties with civil consequences; (xvi)
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 off the defence / dismissal of the substantive case;
and, (xvii) orders passed under Sections 24, 25 or 26 of the Hindu Marriage
Act fit the definition of intermediate order which may adversely affect
valuable rights.
4. The reasons which prevailed in Manish Aggarwal supra for holding
orders of interim maintenance under Section 24 of the Hindu Marriage Act
to be appealable under Section 19(1) of the Family Courts Act equally apply
to grant of interim maintenance under Section 20 of the Hindu Adoption and
Maintenance Act which inter alia provides for maintenance of children. I
may in this regard record that though Section 24 of the Hindu Marriage Act
provides for an order of interim maintenance of spouse only but Section 26
thereof empowers the Court to "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 custody, maintenance, education of minor children........". When
an order fixing maintenance of minor children in exercise of powers under
CM(M) 140/2018 Page 4 of 6
Section 26 of the Marriage Act has been made appealable under Section
19(1) of the Family Court Act, there is no reason to hold that an order of
interim maintenance of children under Section 20 of the Hindu Adoption and
Maintenance Act is not appealable.
5. Though the respondent in the present case is not a minor but Section
20 of the Hindu Adoption and Maintenance Act makes a Hindu bound,
during his / her lifetime, to maintain a daughter who is unmarried and who is
unable to maintain herself out of her own earning.
6. The counsel for petitioner however still insists that since the impugned
order is without jurisdiction, a petition under Article 227 of the Constitution
of India, would also be maintainable. Reliance in this regard is placed on
Archcon Vs. Sewda Const. Co. AIR 2005 Gau. 58, Abanindra Kumar Maity
Vs. A.K. Biswas AIR 1954 Cal 355, A.V. Venkateswaran, Collector of
Customs, Bombay Vs. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506,
Committee of Management Vs. Vice-Chancellor AIR 2009 SC 1159,
Dhariwal Tobaco Products Ltd. Vs. State of Maharashtra (2009) 2 SCC
370 and Industrial Credit and Investment Corporation of India Ltd. Vs.
Grapco Industries Ltd. AIR 1999 SC 1975.
7. Once the Legislature has provided the remedy of appeal, that too to the
Division Bench against the impugned order, the principle enshrined in large
number of judgments discussed in dicta of the Division Bench of this Court
in Dinkar Kumar Vs. Union of India 2014 SCC OnLine Del 2288 relating
to writ jurisdiction would apply i.e. that the Writ Court should abstain from
exercising jurisdiction when alternative statutory remedy is available. It is
not the case that the challenge to the impugned order made in this Writ
CM(M) 140/2018 Page 5 of 6
Petition cannot be made in appeal under Section 19 of the Family Courts
Act.
8. The counsel for the respondent has not made any argument.
9. The petition is thus rejected as not maintainable. Needless to state that
the petitioner, in accordance with law, shall be entitled to appropriate
alternative remedy.
10. The Trial Court record be sent back forthwith.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 19, 2018
'bs/gsr'..
