Madhya Pradesh High Court

Rajendra Kumar vs Smt. Rukhmani Bisen on 2 February, 2023

Author: Rajendra Kumar (Verma)

                                        M.Cr.C. No. 60364/2022.

                               1



   IN THE HIGH COURT OF MADHYA PRADESH
                AT JABALPUR
                           BEFORE

   HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)


          MISC. CRIMINAL CASE NO. 60364 OF 2022.

BETWEEN :-

RAJENDRA KUMAR SON OF LATE SHRI
BHEJANLAL BISEN, AGED ABOUT 29 YEARS,
OCCUPATION - ELECTRICIAN RESIDENT OF
31/G, CAMP-01 WARD NO. 20 PREM NAGAR
THANA SUPELA, TEHSIL & DISTRICT DURG
(CHHATTISGARH)    PRESENT    ADDRESS
RAVANBHADA SUPELA, TAHSIL & DISTRICT
DURG (CHHATTISGARH)
                                        .........PETITIONER
(BY SHRI VAIBHAV JAIN - ADVOCATE)


AND


SMT.  RUKHMANI    BISEN,   WIFE   OF
RAJENDRA BISEN RESIDENT OF 31/G,
CAMP-01 WARD NO. 20 PREM NAGAR
THANA SUPELA, TAHSIL & DISTRICT DURG
(CHHATTISGARH)
PRESENT      ADDRESS         SEVAKRAM
HRINKHEDA, POST SAMNAPUR, THANA &
VILLAGE    NAVEGOAN       TAHSIL  AND
DISTRICT BALAGHAT (M.P.).

                                           ....RESPONDENT
                                                               M.Cr.C. No. 60364/2022.

                                           2


(NONE)


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        Reserved on                           :       16/01/2023
        Pronounced on                         :       02 /02/2023
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       This     petition     having       been     heard      and     reserved       for
judgment/order, coming on for pronouncement this day, this Court
passed the following:
                                       ORDER

Heard on the question of maintainability.

2. As per objection raised by the Registry, this petition under Section

482 of Cr.P.C. is not maintainable and criminal Revision under Section

397/401 of Cr.P.C. should be preferred against the impugned order dated

10.11.2022 passed by learned Principal Judge, Family Court, Balaghat in

MJCR No. 171/2022 (Smt. Rukhmani Bisen Vs. Rajendra Kumar)

whereby learned family Court allowed the application under Section 125

of Cr.P.C. for interim maintenance filed by the respondent-wife and

directed the petitioner to pay the interim maintenance to the tune of Rs.

5,000/- per month from the date of application i.e. from 12.07.2022.

3. Learned counsel for the petitioner submits that the impugned order

is an interim order, so criminal revision should not lie against the M.Cr.C. No. 60364/2022.

impugned order and he placed reliance on an order of the Rajasthan High

Court in Criminal Revision Petition No. 462/2021 (Vishal Kochar Vs.

Smt. Pulkit Sahni) dated 22.04.2022.

4. Section 397 (2) Cr.P.C. provides that the power of revision

conferred by sub-section (1) of Section 397 Cr.P.C shall not be

exercised in relation to an interlocutory order passed in any appeal,

inquiry, trial or other proceeding. Thus it is undisputed legal position

that a revision petition is not maintainable against an interlocutory

order at all.

5. Now question remains for consideration is whether the order

of interim maintenance passed under Section 125 of Cr.P.C is an

interlocutory order? Consequently, whether criminal revision

petition is lie against that order?

6. Term 'Interlocutory Order' has not been defined in the

Cr.P.C. Hon'ble Apex Court in the case of V.C. Shukla vs State,

reported in AIR 1980 (SC) 962, has given following observation in

para No.23 regarding the nature of interlocutory order:-

M.Cr.C. No. 60364/2022.

"Thus, summing up the natural and logical meaning of

an interlocutory order, the conclusion is inescapable that

an order which does not terminate the proceedings or

finally decides the rights of the parties is only an

interlocutory order. In other words, in the ordinary sense

of the term, an interlocutory order is one which only

decides a particular aspect or a particular issue or a

particular matter in a proceeding, suit or trial but which

does not however conclude the trial at all. This would be

the result if the term interlocutory order is interpreted in

its natural and logical sense without having to resort to

Criminal Procedure Code or any other statute. 'That is

to say, if we construe interlocutory order in ordinary

parlance it would indicate the attributes, mentioned

above, and this is what the term interlocutory order

means when used in s. 11(1) of the Act."

7. Further, in the case of Madhu Limaye vs State of

Maharashtra, reported in (1977) 4 SCC 551, the Hon'ble Apex

Court has made following observations with regard to the criterion

of interlocutory order:-

M.Cr.C. No. 60364/2022.

"Ordinarily and generally the expression 'interlocutory

order' has been understood and taken to mean as a

converse of the term 'final order'. In volume 22 of the

third edition of Halsbury's Laws of England at page

742, however, it has been stated in para 1606:-

"....... a judgment or order may be final for one purpose

and interlocutory for another, or final as to part and

interlocutory as to part. The meaning of two words

must therefore be considered separately in relation to

the particular purpose for which it is required.'

In para 1607 it is said:-

"In general a judgment or order which determines the

principal matter in question is termed "final"."

In para 1608 at pages 744 and 745 we find the words:-

"An order which does not deal with the final rights of

the parties, but either (1) is made before judgment, and

gives no final decision on the matters in dispute, but is

merely on a matter of procedure, or (2) is made after

judgment, and merely directs how the declarations of

right already given in the- final judgment are to be M.Cr.C. No. 60364/2022.

worked out, is termed "interlocutory". An interlocutory

order, though not conclusive of the main dispute, may

be conclusive as to the subordinate matter with which it

deals."

8. As per these judicial pronouncements of the Hon'ble Apex

Court, it is clear that if an order is passed in a pending proceeding or

a trial and it does not terminate the proceeding finally and rights and

liabilities of the parties are not decided in finality, then that order

shall be considered as an interlocutory order.

9. In the case of Sumerchand vs Sandhuran Rani and

Others, reported in 1987 Cr.L.J. 1396, Sunil Kumar Sabharwal

vs Neelam Sabharwal, reported in 1991 Cr.L.J. 2056 High Court

of Haryana and a order dated 15.11.18 passed by the High Court of

Uttarakhand in the case of Ashu Dhiman vs Smt Jyoti Dhiman, Cr.

Misc. Application (C-482) No.434/2018, it has been held that an

order passed for interim maintenance under provisions of Section

125 of Cr.P.C is not an interlocutory order, hence, criminal revision

petition is maintainable against such order.

M.Cr.C. No. 60364/2022.

10. It is pertinent to examine the scope and ambit of Section 19 of

the Family Courts Act, 1984 (hereinafter referred to as the 'said

Act').

11. The said Act was enacted with a view to promote conciliation

and secure speedy settlement of disputes relating to marriage and

family affairs and to deal with matters connected therewith so as to

have a composite statute to deal with various aspects. Though the

statute was enacted much earlier, its implementation has been done

in a phased manner as the pre-requisite was the establishment of the

Family Courts under Section 3 of the said Act. Chapter 5 of the said

Act deals with Appeals & Revisions and Section 19 of the said Act is

the only Section falling under this chapter which reads as under:

CHAPTER V - APPEALS AND REVISIONS 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.

M.Cr.C. No. 60364/2022.

(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.

M.Cr.C. No. 60364/2022.

(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 referred under sub-section (1) shall be heard

by a Bench consisting of two or more Judges.

12. A reading of Section 19 of the said Act shows that under sub-

section (1), save as provided in sub-section (2), an appeal lies from

every judgement or order of the Family Court to the High Court,

both on facts and on law. This is irrespective of anything contained

in the Code of Civil Procedure, 1908 (hereinafter referred to as the

CPC'), Cr.P.C. or any other law, which would, thus, also include The

Hindu Marriage Act, 1955 (hereinafter referred to as the HM Act').

However, this right of appeal comes with one limitation, i.e., it does

not lie against an interlocutory order. A question, thus, arises as to

what is the meaning of an interlocutory order.

13. Sub-section (2) of Section 19 of the said Act specifically

prohibits any appeal from an order passed under Chapter 9 of the

Cr.P.C. which contains only four provisions, i.e., Section 125 to M.Cr.C. No. 60364/2022.

Section 128. Thus, a conjoint reading of sub-section (1) and sub-

section (2) of Section 19 of the said Act makes it clear that the

appeal would not be maintainable before this Court from an order

passed under Chapter 9 of the Cr.P.C. However, it is not as if a party

aggrieved by an order passed under any of the provisions of Chapter

9 of the Cr.P.C. is remediless. This is so in view of sub-section (4) of

Section 19 of the said Act, which provides for the revisionary power

specifically qua an order passed under Chapter 9 of the Cr.P.C.

making the intent of the legislature quite clear. Once again, the

exception carved out is that it should not be an interlocutory order

and, thus, it would have to be examined as to what is an

interlocutory order in the context of Section 125 to Section 128 of

the Cr.P.C. for the purpose of Section 19 (4) of the said Act.

14. In the Case of Manish Aggarwal Vs. Seema Aggarwal &

Ors ILR (2013) 1 Delhi 210, Division Bench of Delhi High Court

held that remedy of criminal revision would be available against

both the interim and final orders under Section 125-128 of Cr.P.C.

under sub-Section (4) of Section 19 of the said Act.

M.Cr.C. No. 60364/2022.

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.

15. In the case of Shah Babulal Khimji Vs. Jayaben D. Kanta &

Anr. AIR 1981 SC 1786, the Apex Court has observed as below:-

"11. ....The Apex Court laid down that there can be three

kinds of judgments. Relevant portion of the said

judgment to that effect is as follows:

M.Cr.C. No. 60364/2022.

(1) A final judgment--A judgment which decides all the

questions or issues in controversy so far as the trial

Judge is concerned and leaves, nothing else to be

decided. This would mean that by virtue of the judgment,

the suit or action brought by the plaintiff is dismissed or

decreed in part or in full. Such an order passed by the

trial Judge indisputably and unquestionably is a

judgment within the meaning of the Letters Patent and

even amounts to a decree so that an appeal would lie

from such a judgment to a Division Bench.

(2) A preliminary judgment--This kind of a judgment

may take two forms--(a) where the trial Judge by an

order dismisses the suit without going into the merits of

the suit but only on a preliminary objection raised by the

defendant or the party opposing on the ground that the

suit is not maintainable. Here also, as the suit is finally

decided one way or the other, the order passed by the

trial Judge would be a judgment finally deciding the

cause so far as the trial Judge is concerned and,

therefore, appealable to the larger Bench. (b) Another

shape which a preliminary judgment may take is that M.Cr.C. No. 60364/2022.

where the trial Judge passes an order after hearing the

preliminary objections raised by the defendant relating

to maintainability of the suit, e.g., bar of jurisdiction, res

judicata, a manifest defect in the suit. Absence of notice

under Sec. 80 and the like, and these objections are

decided by the trial Judge against the defendant, the suit

is not terminated but continues and has to be tried on

merits but the order of the trial Judge rejecting the

objections doubtless adversely affects a valuable right of

the defendant who, if his objections are valid, is entitled

to get the suit dismissed on preliminary grounds. Thus,

such an order even though it keeps the suit alive,

undoubtedly decides an important aspect of the trial

which affects a vital right of the defendant and must,

therefore, be construed to be a judgment so as to be

appealable to a larger Bench.

(3) Intermediary or interlocutory judgment: Most of the

interlocutory orders which contain the quality of finality

are clearly specified in clauses (a) to (w) of Order 43,

Rule 1 and have already been held by us to be judgments

within the meaning of the Letters Patent and, therefore, M.Cr.C. No. 60364/2022.

appealable. There may also be interlocutory orders

which are not covered by Order 43, Rule 1 but which

also possess the characteristics and trappings of finality

in that, the orders may adversely affect a valuable right

of the party or decide an important aspect of the trial in

an ancillary proceeding. Before such an order can be a

judgment the adverse affect on the party concerned must

be direct and immediate rather than indirect or

remote..."

16. In the case of Aakansha Shrivastava Vs. Virendra

Shrivastava & Anr. 2010 (3) MPLJ 151 Division Bench of the

Madhya Pradesh High Court has held as under:-

"17. Interim maintenance had been granted under Section

125 Cr.P.C. and the issue arose whether a revision petition

could be preferred against that order, as it was alleged to

be interlocutory in nature. It was held that the order of

interim maintenance was an intermediate or quasi final

order. Analogy was drawn from Section 397 (2) of the

Cr.P.C. and the pronouncement of the Supreme Court in

Amarnath & Ors. Vs. State of Haryana & Ors. AIR 1977 M.Cr.C. No. 60364/2022.

SC 2185 qua the said provision was relied upon. Thus, an

order which substantially affects the rights of an accused

and decides certain rights of the parties was held not to be

an interlocutory order so as to bar revision."

17. In the case of Aakansha Shrivastava (Supra) the Division

Bench of this Court further held that any order which affects right of

a person drastically and substantially, cannot be treated as

interlocutory order and criminal revision can be preferred under

Section 19(4) of the Family Courts Act against the order passed on

the application for interim maintenance by the Family Court. Further

more in the Case of Rajesh Shukla Vs. Meena Shukla

2005(2)MPLJ 483, it has been held by Full Bench of this Court

while passing of maintenance under Section 125 of Cr.P.C. in

exercise of powers, against such order under Section 19(4) of Cr.P.C.

criminal revision should be registered. In another case Nasreen

Begum Vs. The State of Jharkhand & others 2006 Cri.L.J. 326