Tinku Prasad Saha v. Suman Sah) decided on
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 377 of 2024 Arun Kumar , aged about 38 years, son of Shri Bishwanath Mahto, resident of Mecon Cooperative Colony, Katahal More, Post – Lalgutwa, Police Station – Ratu, District Ranchi. … … Petitioner Versus 1. The State of Jharkhand 2. Sangita Kumari, aged about 26 years, daughter of Sri Haradhan Mahto, resident of Village Domandih, Police Station – Rahe Out Post, Post – District Ranchi. … Opposite Parties … --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the O.P.
Legal Reasoning
passed by Hon’ble Division Bench of this Court in M.A. No. 181 of 2004 (Nasreen Begum vs. The State of Jharkhand) to submit that against the order passed in a proceeding under Section 125 of the Cr.P.C. under Section 19 of the Family Court, the present criminal revision is maintainable. 5. After hearing the learned counsel for the parties, this Court finds that in the judgment passed by this Court in the case of "Uttam Kumar Choubey Vs. Kiran Kumari Mishra @ Kumari Kiran and others" decided on 17th August 2005 and reported in (2005) 4 JLJR 202, an issue arose before this Court as to whether the order passed by the learned Principal Judge, Family Court granting interim maintenance during the pendency of proceeding under section 125 of Code of Criminal Procedure could be revised under section 397(2) of Code of Criminal Procedure. This court held that revision is not maintainable against interim order of maintenance as it is an interlocutory order. It has been held as under: "11. From the above discussions, it appears that Chapter IX of the Code of Criminal Procedure contains summary and quick remedy for securing some reasonable amount by way of maintenance to protect to destitute wife from starvation. Section 125, Cr PC does not provide for full and final determination of the personal rights of the parties. The jurisdiction conferred by that provision is 2 more in the nature of preventive, rather than a remedial jurisdiction. It is certainly not punitive one. The Court is empowered either to modify or even to cancel the order passed by him earlier. Therefore, granting interim maintenance, pending proceeding under Section 125, Cr PC can either be modified or even be cancelled at subsequent stage and, therefore, it cannot be said that the interim order of maintenance is a final order.” According, it is held that the grant of interim maintenance pending proceeding under Section 125 of Cr PC is an interlocutory order and thus no revision is maintainable in view of bar under Section 397(2) of the Cr PC." 6. The judgment in the case of Uttam Kumar Choubey (supra) has also been followed by this Court in Cr. Revision No. 546 of 2009 (Rajesh Kumar Jha versus State of Jharkhand and another) vide order dated 08.01.2010. 7. In the judgment passed by this Court in First Appeal No. 18 of 2021 (Tinku Prasad Saha Vs. Suman Sah), the issue before this Court was, whether maintenance pendente lite and litigation cost awarded under section 24 of the Hindu Marriage Act, 1955 during pendency of the matrimonial suit would fall in the nature of interlocutory order or intermediate order and whether an appeal would lie therefrom. The said matter came up on account of the defect pointed out by the Office that the appeal was not maintainable. It has been held that an order granting interim maintenance being interlocutory order, an appeal is not maintainable and while deciding the issue this court has also taken into consideration the object and purpose of the enactment of family courts act and the purpose of grant of interim maintenance. In the aforesaid First Appeal, the Hon'ble Division Bench of this Court considered the various provisions and judgments including the judgment passed in the case of "Rajnesh Vs. Neha and Another" reported in (2021) 2 SCC 324. Some of the findings of this court in the case of Tinku Prasad Saha (supra) relevant for the purposes of this case are as under:- “33. We may now advert to a recent path breaking decision rendered by the Apex Court in the case of Rajnesh Vs. Neha & Anr. reported in (2021) 2 SCC 324, wherein for the first time the Apex 3 Court held that the party claiming maintenance should be required to file concise application for interim maintenance with limited pleadings, along with an affidavit of disclosure of assets and liabilities before the court concerned, as a mandatory requirement. It was further held that on the basis of the pleadings filed by both the parties and the affidavits of disclosure, the court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage. The Hon’ble Supreme Court prescribed the formats in which the affidavits of assets and liabilities were to be filed. A separate format was provided for non-agrarian deponents and agrarian deponents for the State of Meghalaya. 34. The primary reason for providing for the above procedure appears to be that the Apex Court was cognizant of the fact that despite the time frame provided for by the statutes in the form of the proviso to section 24 of the HMA (60 days from the date of service of notice) and the third proviso to section 125 CrPC (60 days from the date of service of notice), the applications for grant of interim maintenance remained pending for several years. The Court further noticed that at present the issues related to interim maintenance are decided on the basis of pleadings, with some amount of guesswork or rough estimation so as to make a prima facie assessment of the amount to be awarded. Such practices according to the Apex Court made it difficult for Family Courts to make an objective assessment for grant of interim maintenance. The Apex Court was of the view that maintenance taking wife has a tendency to exaggerate her needs while it is a corresponding tendency by the husband to conceal his actual income and therefore it has become necessary to lay down a procedure to streamline the proceedings. A dependent wife, who has no other sources of income, has to take recourse to borrowings from her parents / relatives during the interregnum to sustain herself and her minor children till she begins receiving interim maintenance. The Apex Court, therefore, laid down the procedure and guidelines for deciding a claim of maintenance in a matrimonial proceeding or in a proceeding under Section 125 of Cr.P.C. Paragraph 72 of the judgement is profitably quoted hereunder: “72. ……………………………………………….” 35. At paragraph 77 of the judgement, it was observed that the objective of granting interim/ permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. Therefore, no straightjacket formula for fixing the quantum of maintenance to be awarded can be laid down. 36. From a cumulative reading of the guidelines and observations of the Supreme Court of India, it is clear that an application for grant of interim maintenance has to be decided in an expeditious manner and to facilitate the early disposal of cases only, the new 4 guidelines were issued. The nature of a proceeding for grant of interim maintenance certainly is summary in nature and after the judgment of Apex Court in Rajnesh (supra) there is no doubt that the Family Courts have to decide the matters objectively based on the disclosures made by the parties on affidavit. 37……….. ………… 46. In view of the judgment rendered by the Apex Court in the case of Rajnesh Vs. Neha & Anr. now the Family Courts are obliged to decide petitions for interim maintenance in a summary nature objectively based on the disclosure made by the parties on affidavit. An Appellate Court while finally adjudicating an appeal against such an order may ultimately substitute its views to that of the family Court rendered on objective factors based on the disclosure made by the parties on affidavit. This lengthy long drawn proceedings before the appellate court would render the whole aim and object of the FCA and the HMA otiose and frustrated. 47. We have taken note of the decisions rendered by the Apex Court on the principles of purposive construction while interpreting a statute. The courts are entitled to look into the object and purpose of the enactment. The provisions relating to grant of maintenance pendent lite and litigation expenses are founded on principles akin to Art. 39A of the Constitution of India and the right to access to justice and hence must receive the importance attached to the rights flowing therefrom. The provisions of Section 19 of the FCA, therefore, cannot be interpreted in such an expansive manner, rather the interpretation has to be done in a purposive manner keeping into mind the object and purpose of the enactment for speedy disposal of matrimonial disputes and proceedings relating to maintenance. Applying the above tests to an order passed under section 24 of the HMA it can be safely inferred that an order granting or refusing to grant maintenance pendente lite to a spouse does not have any effect on any substantial right of the aggrieved party nor does have the traits and trappings of finality. In fact, an order under section 24 HMA does not have any effect on the final decision of the lis sought to be decided by the Family Court. 48. Having regard to object and purpose of the FCA and HMA i.e. speedy settlement of matrimonial disputes, which is also reflected in the proviso to section 24 of the HMA, section 19 of the FCA must receive an interpretation which furthers the above intent of the legislation. Therefore, providing for an appeal or interpreting that an appeal is maintainable against an order passed under section 24 of the HMA would frustrate the purpose for which it was enacted and might unnecessarily delay the main proceedings before the Family Court. Grant or refusal of maintenance pendente lite can at best be an order which causes inconvenience to some extent to the aggrieved party but in no way causes any serious prejudice to the aggrieved party. The HMA or the FCA does not provide for any 5 is till the pendency of interim maintenance consequences for non-compliance of an order under section 24 HMA on the merit of the main matter except that it can be enforced in accordance with law. 49. The order on an application for grant of interim maintenance certainly is an order which does not in any manner crystallize the rights of any party. It’s a temporary arrangement. Pronouncement of the final judgment and decree terminates the operation of the order granting the interim maintenance. The life of an order granting the proceedings, just like any other interim or interlocutory order. As observed hereinabove, in view of the judgment of Apex Court in the case of Rajnesh (supra), it cannot be said that the Family Court while deciding an application for interim maintenance has to arrive at a subjective satisfaction regarding the matter, rather now the order is to be based on objective assessment and hence the scope of the High Court to interfere with such an order is limited. The High Court is not required to re-evaluate the entire matter and an order granting / refusing to grant interim maintenance is not to be tested by an appellate court either on law or facts or both. It can be reviewed by the Superior Court on jurisdictional issues or on grounds of perversity which can be done under Article 227 of the Constitution of India. 50. An expansive interpretation of section 19 of the FCA by which it is held that an appeal has been provided against an order granting / refusing to grant interim maintenance, will defeat the object of the Act i.e., speedy disposal of disputes. The appellate court would be under a duty to reappraise the pleadings and the affidavit and return an independent finding which would reopen the issue again and, in all probability, delay the entire exercise. Such an interpretation runs contrary to the object of the FCA and section 24 of the HMA and thus needs to be avoided. 51. The right of an appeal has been circumscribed by section 19 FCA expressly prohibiting an appeal from an interlocutory order and the said term “interlocutory order” has to be construed in its natural sense so as to be in conformity with the object and purpose of the FCA. We are not oblivious or unmindful of the legal position that the provisions relating to jurisdiction of the Family Courts must receive liberal and expansive interpretation but at the same time the provisions relating to appeal must not be interpreted in a manner which would run contrary to the scheme of the enactment more so in view of the fact that the provisions of section 19 FCA has put restrictions on the scope of appeal against interlocutory orders and expressly excludes the applicability of the CPC, CrPC and all other laws. Thus, the provision requires to be interpreted by using the principles of harmonious construction. By applying the same it can safely be deduced that an order on an application for grant of interim maintenance, being an interlocutory order, is not appealable. 6 52. In view of what has been held hereinabove with due respect, in our humble opinion, the decision of this Court in the case of “Rachana Pandey v. Sanjeev Singh” can be said to be per incuriam. We accordingly, hold and declare that an order passed by a Family Court under section 24 HMA being an interlocutory order is not amenable to the appellate jurisdiction of this Court under section 19 of the FMA. Hence, the present appeal is held to be not maintainable. However, the appellant is at liberty to raise his grievances in an appropriate proceeding under Article 227 of the Constitution of India.” 8. In view of the binding precedent of this Court as decided in the case of Uttam Kumar Choubey (Supra) and also the view expressed by this Court with regard to interim maintenance under section 24 of Hindu Marriage Act in the case of Tinku Prasad Saha (supra) that order granting interim maintenance is interlocutory order, this Court is of the considered view that this revision against the order of interim maintenance under section 125 of Code of Criminal Procedure is not maintainable. 9. From the perusal of the order relied upon by the learned counsel for the petitioner passed in the case of Nasreen Begum (supra), this court finds that the said order is not on the point as to whether the criminal revision would lie against interim maintenance, rather the said order holds that revision is maintainable against the final order passed under Section 125 of the Cr.P.C. and it has been held that appeal is not maintainable under section 19 of the Family Courts Act,1984. Accordingly, the said order does not help the petitioner in any manner as it is not applicable to order of interim maintenance. 10. In view of the aforesaid judgements passed by this court which is binding on this court, this Court is not inclined to take a different view and is not inclined to follow the judgment passed by the Hon'ble Delhi High Court as relied upon by the petitioner which has been passed in case of "Manish Aggarwal Vs. Seema Aggarwal and others" reported in ILR (2013) I DELHI 210 and followed in the case of Urvashi Aggarwal (supra) holding that the order granting interim maintenance is in the nature of intermediate order and not interlocutory order . 7 11. In view of the aforesaid discussions the revision against impugned order granting interim maintenance, is not maintainable. 12. Accordingly, this criminal revision is dismissed as not maintainable. Aditi (Anubha Rawat Choudhary, J.) 8
Arguments
--- : Mr. Samavesh Bhanj Deo, Advocate : Mr. Mohua Palit, Advocate 05/25th June 2024 1. This Criminal Revision is directed against the order dated 21.02.2024 passed in Original Maintenance Case No. 266 of 2021 by learned Principal Judge, Family Court, Ranchi whereby Interim Maintenance has been allowed @ 12,000/- per month to the Opposite Party No. 2 from the date of filing of the case i.e. 24.09.2024 along with a lump sum amount of Rs. 5000/- against litigation cost. The learned Court had further directed to pay the arrears of interim maintenance within six months in equal installments from the date of passing of the order. 2. Learned counsel for the petitioner submits that an objection has been raised by the office that the present criminal revision is not maintainable against an order of 'interim maintenance'. 3. On the point of maintainability of this case, learned counsel for the State has referred to the judgment passed by this Court in First Appeal No. 18 of 2021 (Tinku Prasad Saha versus Suman Sah) decided on 18.04.2022 and has submitted that it has been ultimately decided by this Court by referring numerous judgments including the judgment passed by the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324 that the order of grant of 'interim maintenance' does not crystalize the rights of the parties in any manner. She further submits that by virtue of grant of 1 'interim maintenance', the proceeding does not terminate in any manner and, therefore, the order is 'interlocutory' in nature and the present criminal revision is not maintainable. 4. To this, learned counsel for the petitioner submits that a contrary view has been taken by the Hon’ble Delhi High Court in CRL. REV. P. 549/2018 (Urvashi Agrarwal and others versus Inderpaul Aggarwal) following the judgement passed by the same court in the case of "Manish Aggarwal Vs. Seema Aggarwal and others" reported in ILR (2013) I DELHI 210 wherein it has been held that the order granting interim maintenance is an intermediate order and revision would be maintainable both against or der of interim maintenance as well as final order under section 125 Cr.P.C. The learned counsel has also referred to the order dated 18th July 2005