Amit Vyas vs Pramila Alias Ranjana
2022 Latest Caselaw 4148 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                D. B. Civil Review Petition No. 79/2018

                                        In

                D.B. Civil Misc. Appeal No. 3744/2016

   Amit Vyas S/o Suresh Chand Vyas, R/o C-449, Mahesh Nagar,
   Jaipur.
                                                 ----Appellant/Non-Applicant
                                    Versus
   Pramila @ Ranjana W/o Amit Vyas, D/o Mahesh Chand Binda,
   R/o House No. 13, Bharti Colony, Brahmpuri, Jaipur.
                                                                 ----Respondent


  For Applicant-Review    :     Mr. Vijay Bahadur Srivastava
  Petitioner-Appellant          Advocate through Video
                                Conferencing.
  Amicus Curiae           :     Mr. R.N. Mathur, Senior Advocate.
  For Respondent          :     Mr. Vijay Singh Poonia Advocate with
                                Ms. Anubha Singh Advocate.

HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA

             HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
                                     Order

  27/05/2022
  By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)

By Review Petition No. 79/2018, the review applicant

(appellant in connected D.B. Civil Misc. Appeal No. 1709/2020,

1712/2020 and 1718/2020) has sought review of order dated

27.10.2017 passed in D.B. Civil Misc. Appeal No. 3744/2016, Amit

Vyas Vs. Pramila Alias Ranjana, whereby, appeal directed against

an order passed under Section 24 of the Hindu Marriage Act, 1955

(for short 'the Hindu Marriage Act'), granting interim maintenance

to the respondent-wife, was held not maintainable under Section

(2 of 13) [CRW-79/2018]

19 of the Family Courts Act, 1984 (for short 'the Family Courts

Act').

2. Learned counsel for the review-applicant would argue that

though earlier an order was passed on 27.10.2017, dismissing the

appeal as not maintainable, it being against an order of grant of

maintenance pendente lite under Section 24 of the Hindu Marriage

Act in favour of the respondent-wife, relying upon various

decisions of different High Courts as also this Court, later on the

issue with regard to maintainability of appeal under Section 19 of

the Family Courts Act against an order of grant of maintenance

pendente lite under Section 24 of the Hindu Marriage Act has been

resolved by Full Bench of this Court at principal seat at Jodhpur in

this case of Kavita Vyas Vs. Deepak Dave, 2018(1) RLW 97

(Raj.). It is contended that the issue of maintainability of appeal

against an order passed under Section 24 of the Hindu Marriage

Act led to reference to Larger Bench. After examining the

statutory scheme of the Family Courts Act, particularly the scope

and ambit of Section 19 thereof and various judgments on the

principle regarding interpretation of interlocutory order and finding

support from the view taken by various High Courts, it has been

finally concluded, while answering the reference, by declaring that

the Division Bench of this Court in the case of Ajay Malik Vs.

Smt. Shashi, 2011(2) RLW1615 (Raj.), does not lay down the

correct view. The reference was answered by holding that an

appeal shall lie under Section 19(1) of the Family Courts Act

against an order passed by the Family Court under Section 24 of

the Hindu Marriage Act. Therefore, the submission is that in view

of the aforesaid decision, which is binding in nature, the order

under review, which held that the appeal is not maintainable

(3 of 13) [CRW-79/2018]

against an order passed under Section 24 of the Hindu Marriage

Act, be reviewed and recalled and the appeal filed by the review-

applicant be restored to its original number for consideration on its

own merits by holding that the appeal is maintainable under

Section 19(1) of the Family Courts Act.

3. Per contra, learned counsel for the respondent contended

that this Court in the case of Rahul Singh Shekhawat Vs. Smt.

Rama Chauhan (D.B. Civil Misc. Appeal No. 2535/2018

decided on 09.11.2021), relying upon direct decision of the

Hon'ble Supreme Court in the case of Captain Ramesh Chander

Kaushal Vs. Mrs. Veena Kaushal and Others (1978) 4 SCC

70, has held that the appeal against an order passed under

Section 24 of the Hindu Marriage Act would not be maintainable.

Argument of learned counsel for the respondent is that the law

laid down by the Hon'ble Supreme Court in the case of Captain

Ramesh Chander Kaushal (supra) is binding on all courts

under Article 141 of the Constitution of India and, therefore, Full

Bench judgment of this Court in the case of Kavita Vyas

(supra), which has not taken into consideration the authoritative

pronouncement of the Hon'ble Supreme Court in the case of

Captain Ramesh Chander Kaushal (supra), has no

precedential value.

4. Considering the complexity of the issue, this Court had

requested Mr. R.N. Mathur, learned Senior Advocate to assist the

Court in arriving at just decision.

Mr. R.N. Mathur, learned Senior Advocate made elaborate

submissions with reference to plethora of decisions and contended

that the issue regarding maintainability of an appeal under Section

19(1) of the Family Courts Act would depend upon whether the

(4 of 13) [CRW-79/2018]

order sought to be appealed against is a judgment or order, not

being an interlocutory order of a Family Court. He would contend

that the legislative intention behind Section 19, sub-section (1) of

the Family Courts Act seeks to provide appeal only against the

judgment and order, which is not interlocutory in nature, but

seeks to determine the rights of the parties. Whether an order

passed by the Family Court under Section 24 of the Hindu

Marriage Act is interlocutory in nature or not, has been considered

by the Hon'ble Supreme Court in the case of Captain Ramesh

Chander Kaushal (supra). He would argue that the controversy

raised in that case was whether order of grant of maintenance

passed under Section 24 of the Hindu Marriage Act determines the

civil rights of the parties and for that reason bars claim of

maintenance under Section 125 of the Code of Criminal Procedure,

1973 (for short 'Cr.P.C.'). While deciding the issue, the Hon'ble

Supreme Court not only examined the nature of proceedings and

order that can be passed under Section 125 Cr.P.C., but also

examined the nature of order that can be passed by the Family

Court under Section 24 of the Hindu Marriage Act. The Hon'ble

Supreme Court, it is contended, categorically held that the order

passed under Section 24 of the Hindu Marriage Act does not

decide any of the rights of the parties and cannot be said to be a

comprehensive adjudication of civil rights and for that reason,

such an order would not come in the way of seeking maintenance

under Section 125 Cr.P.C. The issue as to whether order passed

under Section 24 of the Hindu Marriage Act is an interlocutory

order or determines the rights of the parties, was directly under

consideration before the Hon'ble Supreme Court and consequently,

the findings recorded by the Hon'ble Supreme Court constitute

(5 of 13) [CRW-79/2018]

ratio decidendi of the case and are binding on all Courts including

High Courts under Article 141 of the Constitution of India.

Learned Amicus Curiae would further submit that though the

Full Bench of this Court in the case of Kavita Vyas (supra) has

taken the view that the order passed under Section 24 of the

Hindu Marriage Act is not an interlocutory order as mentioned in

Section 19, sub-section (1) of the Family Courts Act and on that

basis a conclusion has been drawn that the nature of such order

would be judgment because it decides matters of moment, which

affects the valuable rights of the parties, the Hon'ble Supreme

Court has already held otherwise with regard to the nature of

order passed under Section 24 of the Hindu Marriage Act by

clearly holding that such an order is only interlocutory in nature

and cannot be said to be an order determining any of the rights of

the parties. The argument is that the judgment of the Hon'ble

Supreme Court in the case of Captain Ramesh Chander

Kaushal (supra) was not brought to the notice of the Full Bench

of this Court. Therefore, the authoritative pronouncement of the

Hon'ble Supreme Court in the case of Captain Ramesh Chander

Kaushal (supra) would be binding on all courts including High

Courts under Article 141 of the Constitution of India and not the

Full Bench judgment of this Court in the case of Kavita Vyas

(supra). Consequently, it is argued that while deciding an issue

with regard to maintainability of an appeal under Section 19, sub-

section (1) of the Family Courts Act in the matter of challenge to

an order passed under Section 24 of the Hindu Marriage Act, the

Courts are to be guided by the law laid down by the Hon'ble

Supreme Court in the case of Captain Ramesh Chander

(6 of 13) [CRW-79/2018]

Kaushal (supra) and not by the Full Bench judgment of this

Court in the case of Kavita Vyas (supra).

5. We have given our anxious considerations to submissions

made by learned counsel for the parties as also the submissions

made by learned Senior Advocate as Amicus Curiae in the case

and also perused the records and various judgments cited before

us, particularly the judgment of the Hon'ble Supreme Court in the

case of Captain Ramesh Chander Kaushal (supra) and Full

Bench judgment of this Court in the case of Kavita Vyas

(supra).

6. Earlier, conflict in the view taken by Division Benches on the

aspect of maintainability of an appeal filed against an order

passed under Section 24 of the Hindu Marriage Act, under the

scheme of Section 19, sub-section (1) of the Family Courts Act,

led to reference of dispute to Larger Bench of this Court in Kavita

Vyas (supra). Section 19 of the Family Courts Act reads as

under:

"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.

(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

(7 of 13) [CRW-79/2018]

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.] [(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 preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

The statutory scheme that 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 was noticed by

the Full Bench of this Court. As to what constitutes interlocutory

order fell for consideration of the Full Bench of this Court in the

case of Kavita Vyas (supra), which in para 10 of its order noted

that the term 'interlocutory order' can be used in a statute

sometimes in a restricted sense and sometimes in a broad or

artistic sense. The touchstone for an order to be an interlocutory

order and hence not appealable is to see whether the order is

purely interim or temporary in nature and does not decide or

touch the important rights or liabilities of the parties. Relying

upon various judgments referred to in para 10, 14, 15 and 18 of

the judgment in the case of Kavita Vyas (supra), the Full Bench

of this Court came to a conclusion that an order under Section 24

of the Hindu Marriage Act would constitute a judgment because it

decides matters of moment, 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 also

(8 of 13) [CRW-79/2018]

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. On such analogy and reasoning, the Full Bench of this

Court came to the conclusion that order of the Family Court

deciding an application under Section 24 of the Hindu Marriage Act

in the matter of grant of maintenance pendente lite cannot be said

to be an interlocutory order as expressed in Section 19(1) of the

Family Courts Act, but it is in the nature of a judgment and

therefore, appeal under Section 19(1) of the Family Courts Act

would be maintainable.

7. However, the Hon'ble Supreme Court in the case of Captain

Ramesh Chander Kaushal (supra) had an occasion to examine

the nature of order that can be passed under Section 24 of the

Hindu Marriage Act.

On facts, that was a case where the husband Captain

Ramesh Chander Kaushal filed a suit for decree of divorce against

his wife Mrs. Veena Kaushal. In that suit, an application was filed

by the wife praying for grant of maintenance pendente lite under

Section 24 of the Hindu Marriage Act and an order was passed on

her application.

Mrs. Veena Kaushal, however, also demanded maintenance

by moving an application under Section 125 Cr.P.C. The matter

came in revision before the High Court as the husband was

aggrieved by allowing of wife's application for grant of

maintenance filed under Section 125 Cr.P.C. The High Court

(9 of 13) [CRW-79/2018]

dismissed the revision and held the wife Mrs. Veena Kaushal

entitled to maintenance under Section 125 Cr.P.C. Aggrieved by

the said order, husband Captain Ramesh Chander Kaushal filed a

petition for special leave to appeal before the Hon'ble Supreme

Court. The bone of contention raised before the Hon'ble Supreme

Court was that as the order passed under Section 24 of the Hindu

Marriage Act by the Civil Court regarding quantum of maintenance

vis-à-vis the civil rights of the parties decided civil rights of the

parties and, therefore, such an order was required to be given

weightage over and above the order passed in summary

proceedings under Section 125 Cr.P.C. Thus, the issue, which

directly arose for consideration before the Hon'ble Supreme Court,

was whether the order passed under Section 24 of the Hindu

Marriage Act was merely an interlocutory order without

determining any rights of the parties or was in the nature of

deciding and determining the rights of the parties. The Hon'ble

Supreme Court had an occasion not only to consider the scope

and ambit of proceedings and order that may be passed under

Section 125 Cr.P.C., but also that of the order which can be passed

by the Civil Court in the matter of dispute between the parties, on

application for grant of maintenance pendente lite under Section

24 of the Hindu Marriage Act. The Hon'ble Supreme Court referred

to Section 24 of the Hindu Marriage Act and then proceeded to

hold that the order passed under Section 24 of the Hindu Marriage

Act regarding interim maintenance is not a final determination of

civil rights by Civil Court, but is only an interim order. On such

construction placed on the nature of order passed under Section

24 of the Hindu Marriage Act, the Hon'ble Supreme Court

authoritatively pronounced that an order passed under Section 24

(10 of 13) [CRW-79/2018]

of the Hindu Marriage Act does not constitute determination of

civil rights by the Civil Court and is only an interlocutory order as

there is no final determination. It is only an order pendente lite

under Section 24 of the Hindu Marriage Act to pay the expenses of

the proceedings and monthly during the proceeding such sum as

having regard to the petitioner's own income and the income of

the respondents, which may seem to the Court to be reasonable.

Finally, it was concluded that direction issued under Section 24 of

the Hindu Marriage Act is not comprehensive adjudication and it

being interlocutory in nature, challenge to the proceedings and

orders passed under Section 125 Cr.P.C. was repelled. The issue

as raised before the Hon'ble Supreme Court and determination on

the said issue is quoted as below:

"4. The husband sought divorce through the civil court and the wife claimed maintenance through the criminal court. As an interim measure, the District Court awarded maintenance and the High Court fixed the rate at Rs. 400/- per mensem for the spouse as a provisional figure. Meanwhile, the Magistrate, on the evidence before him, ordered ex parte, monthly maintenance at Rs. 1000/- for the mother and two children together.

5. Sri S. T. Desai urged two points which merit reflection but meet with rejection. They are that (i) a civil court's determination of the quantum is entitled to serious weight and the criminal court, in its summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother and children, as a whole under Section 125 of the Code was Rs. 500/-, having regard to the text of the section.

6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance

(11 of 13) [CRW-79/2018]

Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication."

8. There is considerable force in what has been argued by

learned Amicus Curiae that the order passed by the Hon'ble

Supreme Court in the case of Captain Ramesh Chander

Kaushal (supra) holding that order passed under Section 24 of

the Hindu Marriage Act is an interlocutory order as it does not

finally determine any of the right of the parties, constitutes ratio

decidendi of the case, applying the principles laid down by the

Hon'ble Supreme Court in the cases of Commissioner of Income

Tax Vs. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363,

State of Gujarat & Another Vs. Manoharsinhji

Pradyumansinhji Jadeja, (2013) 2 SCC 300 and Roger

Shashoua and Others Vs. Mukesh Sharma and Others

(2017) 14 SCC 722. Though, number of decisions on this

principle were referred to by learned Amicus Curiae, we are

mentioning a few of them.

In the case of Roger Shashoua and Others (supra), while

explaining the principle of ratio decidendi, the Hon'ble Supreme

Court considered and summarised the principles of "per incuriam"

and it has been held that a decision or judgment can be per

incuriam any provision in a statute, rule or regulation, which was

not brought to the notice of the Court. It has also been held that

a decision or judgment can also be per incuriam if it is not

(12 of 13) [CRW-79/2018]

possible to reconcile its ratio with that of a previously pronounced

judgment of a co-euqal or larger Bench; or if the decision of a

High Court is not in consonance with the views of the Supreme

Court. In para 42 of the aforesaid judgment, the principle was

explained as below:

"42. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, the Court referred to the Constitution Bench decision in Union of India v. Raghubir Singh, (1989) 2 SCC 754 and Chandra Prakash v. State of U.P., (2002) 4 SCC 234 and thereafter expressed its view thus: (Sundeep Kumar Case SCC p. 642, para 19) "19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."

(emphasis in original)"

9. Though, learned Amicus Curiae assisting the Court argued

that as the judgment of the Hon'ble Supreme Court in the case of

Captain Ramesh Chander Kaushal (supra) holds the field

declaring that an order passed under Section 24 of the Hindu

Marriage Act is an interlocutory order and, therefore, it will not be

appealable under Section 19(1) of the Family Courts Act, the view

(13 of 13) [CRW-79/2018]

of the Full Bench of this Court in the case of Kavita Vyas

(supra), which was delivered without taking into consideration

the aforesaid authoritative pronouncement of the Hon'ble

Supreme Court, is per incuraim and, therefore, is not binding

precedent.

10. Considering that the view in the case of Kavita Vyas

(supra) has been expressed by a Bench larger than this Bench,

we are inclined to refer the case for consideration of a Larger

Bench under Rule 59 of the Rajasthan High Court Rules, 1952 on

following question of law:

"Whether the view taken by the Full Bench of this Court in the case of Kavita Vyas Vs. Deepak Dave, 2018(1) RLW 97 (Raj.) holding that an order passed under Section 24 of the Hindu Marriage Act, 1955 is a judgment and not an interlocutory order and, therefore, appeal against such order is maintainable under Section 19, sub-section (1) of the Family Courts Act, 1984, is per incuriam as the judgment of Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others (1978) 4 SCC 70 holding that an order passed under Section 24 of the Hindu Marriage Act, 1955 is an interlocutory order, which does not determine any of the rights of the parties, was not considered by the Full Bench of this Court?"

11. Registry is directed to place the matter before Hon'ble the

Chief Justice.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ

MANOJ NARWANI/

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