Telangana High Court

N. Rakesh Yadav vs N. Aneela , Shrithika 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.86 OF 2023

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. M. Amarnath, learned counsel for the appellant and

Mr. P.S.V. Prasad, learned counsel for the respondents.

2. The present appeal is filed by the appellant - husband &

father under Section - 19 of the Family Courts Act, 1984 (for short

'Act, 1984') challenging the order dated 18.04.2023 in Crl.M.P.

No.116 of 2022 in M.C. No.148 of 2019 passed by learned Judge,

Additional Family Court, Ranga Reddy District at L.B. Nagar.

3. The respondents - wife and daughter filed M.C. No.148 of

2019 claiming maintenance against the appellant - husband and father.

During pendency of the said M.C., the respondents herein have also

filed an Interlocutory Application vide Crl.M.P. No.116 of 2022 under

Section - 125 of the Cr.P.C. read with 7 of the Family Courts Act,

1984 (for short 'Act, 1984') seeking a direction to the appellant herein

to pay an amount of Rs.50,000/- towards monthly maintenance for

their livelihood, food, shelter, education and other expenses. Vide

KL,J & PSS,J

impugned order dated 18.04.2023, the learned Family Court allowed

the said petition in part directing the appellant herein to pay interim

maintenance of Rs.15,000/- and Rs.10,000/- per month to respondent

Nos.1 and 2 from the date of petition payable on or before fifth of

every succeeding month until disposal of the M.C. Arrears of

maintenance shall be paid within two months from the date of said

order. Respondent No.1 shall furnish her bank account details to the

appellant herein and to the Court within fifteen (15) days from the

date of the said order. Challenging the said order, the appellant -

husband preferred the present appeal.

4. While the matter stood thus, learned counsel for the

respondents - wife and daughter raised an objection with regard to

maintainability of the present appeal under Section - 19 (1) 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. It is not an

interlocutory order. Though it is an intermediary order, it attained

finality and, therefore, the present appeal is maintainable.

KL,J & PSS,J

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

the said application vide order dated 07.03.2002 directing the husband

to pay pendent lite maintenance in terms of earlier order dated

. MANU/UP/2771/2004

KL,J & PSS,J

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.

8. Full Bench of Rajasthan High Court at Jodhpur in Kavita

Vyas v. Deepak Dave 3 relying on the decision in Shah Babulal

. (1981) 4 SCC 8

. AIR 2018 Raj. 72

KL,J & PSS,J

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 follows:

"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 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.

. MANU/DE/4612/2012

. AIR 1977 SC 2185

. AIR 1978 SC 47

. 1980 (2) SCR 380

KL,J & PSS,J

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, the impugned order dated 18.04.2023

is only an interlocutory order. Main M.C. is pending. Therefore, in

the impugned order, there are no trappings of finality and the

substantial rights of the parties were not affected. In view of the

principle laid down by a Division Bench of Delhi High Court in

Manish Aggarwal4, the present appeal is not maintainable and the

same is liable to be dismissed.

KL,J & PSS,J

11. The present appeal is accordingly dismissed. However,

liberty is granted to the appellant to file appropriate application

challenging the impugned order. Liberty is also granted to the

petitioner and respondents to raise all the contentions and pleas which