Smt. Pramodini Mahanta vs Subash Chandra Mahanta
2024 Latest Caselaw 793 Jhar

Jharkhand High Court

Smt. Pramodini Mahanta vs Subash Chandra Mahanta on 23 January, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay, Deepak Roshan

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        F.A. No. 163 of 2023
        Smt. Pramodini Mahanta                              ..... Appellant
                             Versus
        Subash Chandra Mahanta                            ..... Respondents
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CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay Hon'ble Mr. Justice Deepak Roshan

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For the Appellant : Mr. Anand Kr. Sinha, Adv.

        For the Respondents      :
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7/23.01.2024         Heard Mr. Anand Kr. Sinha learned counsel for the
        appellant.

2. This appeal is directed against that part of the order dated 15.06.2023 passed in original Suit No. 370 of 2022 by which the appellant has been granted ad-interim maintenance under section 24 of the Hindu Marriage Act, 1955 an amount of Rs. 3,000/- per month though the claim of the appellant is for payment of ad-interim maintenance of Rs. 25,000/- per month.

3. The office has pointed out a defect with respect to the maintainability of this appeal. Taking recourse to Section 19 (1) of the Family Courts Act as to whether an order passed under Section 24 of the Hindu Marriage Act, 1955 is appealable or not had come up for consideration before the Full Bench of the Rajasthan High Court in the case of Kavita Vyas versus Deepak Dave reported in 2018 SCC online Raj 1601 wherein it has been held as under: -

21. Indeed, the order would be a judgment because it decides matters of moment and which affects a valuable right of the parties.

The expression 'some right or liability' is not restricted to the right in controversy in the main proceeding itself. It may be an order which is of an ancillary nature but is determinative of the rights and liabilities for the reason a spouse who is not able to maintain himself/herself without maintenance being awarded would be handicapped in litigating and per contra if the maintenance awarded is beyond the means of the other spouse and the spouse cannot pay the same the proceedings can be halted.

22. In fact in para 119 of the decision in Shah Babulal Khimiji's case (supra) the Supreme Court itself recognized that an order, including an interlocutory order to be a judgment, may decide a

question in controversy even in an ancillary proceeding in a Suit.

23. Accordingly, we answer the reference by declaring that the Division Bench of this Court in the decision reported as RLW 2011 (2) Raj. 1615 Ajay Malik v. Smt. Shashi does not lay down the correct view. The reference is answered by holding that an appeal shall lie under Section 19(1) of the Family Courts Act, 1984 against an order passed by a Family Court under Section 24 of the Hindu Marriage Act, 1955.

4. In view of the fact that the aforesaid judgment after taking into consideration the provisions of the Family Courts Act as well as the section 28 of the Hindu Marriage Act and Section 96 of the Code of Civil Procedure has come to a finding that an order passed in terms of section 24 of the Hindu Marriage Act is appealable, we hold that the present appeal is maintainable.

5. Office is directed to carry out further stamp reporting in view of the aforesaid finding recorded by us.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.)

Fahim/Amardeep/