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
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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
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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
. MANU/UP/2771/2004
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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.
. (1981) 4 SCC 8
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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
. AIR 2018 Raj. 72
. MANU/DE/4612/2012
. AIR 1977 SC 2185
. AIR 1978 SC 47
. 1980 (2) SCR 380
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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.
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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
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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
. (2021) 2 SCC 324
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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
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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
