D.B. Civil Reference No. 1 of 2017

10th January, 2018.

Petitioner Counsel: Mr. NAGRAJ GOSWAMI, Mr. ABHINAV JAIN, Mr. AVIN CHHANGANI, Ms. KAMLA GOSWAMI
Respondent Counsel: Mr. B.L. CHOUDHARY

Cases Cited:
Ajay Malik Vs. Smt.Shashi, RLW 2011 (2) Raj.1615 [Para 2,23]
Madhu Limaye Vs. State of Maharashtra, 2007 ALL SCR (O.C.C.) 191=AIR 1978 SC 47 [Para 10]
Mohan Lal Magan Lal Thakkar Vs. State of Gujarat, AIR 1968 SC 733 [Para 10]
Amar Nath Vs. State of Haryana, AIR 1977 SC 2185 [Para 10]
Shah Babulal Khimji Vs. Jayaben D.Kania & anr., 1981 SC 1786 [Para 14,17,22]
Kiran Bala Srivastava Vs. Jai Prakash Srivastava, 2005(23) LCD 1 [Para 18]
Rahul Samrat Tandon Vs. Smt.Neeru Tandon, AIR 2010 Utr 67 [Para 18]
Manish Aggarwal Vs. Seema Aggarwal & ors., 192(2012) DLT 714 [Para 18]

JUDGMENT

JUDGMENT :- Whether an order passed under Section 24 of the Hindu Marriage Act, 1955 by the Presiding Officer of a Family Court is an appealable order or not is the question referred to the Full Bench of this Court.

2. Currently a Division Bench judgment of this Court dated 19.11.2010 in Civil Misc.Appeal No.4559/2009 Ajay Malik V/s Smt.Shashi holds the field and the view taken is that the appeal is not maintainable. The finding in para 5 is the opinion of the Court and we find that there is no discussion therein. In para 5 of the decision of the Division Bench it is recorded as under:-

"5. This Court has considered contentions advanced by Counsel for parties, and with their assistance, examined material on record. We find substance in the preliminary objection raised by Counsel for respondent. U/s 19(1) of the Act, 1984 an appeal lies against every judgment or order but not being an interlocutory order of the Family Court to the High Court both on facts and on law. In the instant case, the order impugned has been passed by the learned Family Court granting pendente lite maintenance U/s 24 of HM Act is certainly an interlocutory in nature; in such circumstances, in view of S.19(1) of HM Act, instant misc. appeal is maintainable."

3. There appears to be a typographical error in the last line of paragraph 5 and the word 'not' between the last two words 'is' and 'maintainable' is missing.

4. Section 19 of the Family Courts Act, 1984 provides for appeal and we quote. The Section 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 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 referred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

5. A perusal of sub-section (1) of Section 19 of the Family Courts Act, 1984 would evince that save as provided in subsection (2) thereof and notwithstanding anything contained in the Code of Civil Procedure or in the Code of Criminal Procedure 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.

6. Thus, an appeal shall lie to the High Court from every judgment or order save and except an interlocutory order passed by a Family Court subject to sub-section (2) of Section 19 and notwithstanding anything else contained in any other law.

7. The question would be whether an order passed under Section 24 of the Hindu Marriage Act, 1955 is an order of the kind where an appeal would lie there against.

8. Ex-facie the legislative intent is to provide for an appeal against every judgment and an order passed by a Family Court and exclude an interlocutory order.

9. What is an 'interlocutory order'?

10. In the decision reported as AIR 1978 SC 47 : [2007 ALL SCR (O.C.C.) 191] Madhu Limaye V/s State of Maharashtra, referring to two earlier decisions reported as AIR 1968 SC 733 Mohan Lal Magan Lal Thakkar V/s State of Gujarat and AIR 1977 SC 2185 Amar Nath V/s State of Haryana, the Supreme Court observed that the term 'interlocutory order' is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes and in the Webster's New World Dictionary, 'interlocutory' has been defined as an order other than a final decision. Decided cases have laid down that interlocutory orders, to be appealable, must be those which decide the rights and liabilities of the parties concerning a particular aspect. The decision further holds that the term 'interlocutory order' may 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. It was highlighted by the Supreme Court that the finality of the order could not be judged by co-relating the order with the controversy in the complaint and the fact that the controversy still remained alive was irrelevant.

11. The contention to oppose maintainability of the appeal is that the legislature was aware of the provisions of the Hindu Marriage Act, 1955. Maintenance under Section 24 is pursuant to an order passed by a Court. Permanent alimony and maintenance is as per the power vested in the Court under Section 25 of the Hindu Marriage Act, 1955 and custody of children is from the power flowing under Section 26 of the Hindu Marriage Act, 1955. The legislature was aware of Section 28 of the Hindu Marriage Act, 1955, as per which appeals were provided against orders passed under Sections 25 and 26 of the Hindu Marriage Act, 1955, excluding Section 24.

12. But the contention over-looks the use of the phrase 'notwithstanding anything contained in the Code of Civil Procedure or in the Code of Criminal Procedure or in any other law' in sub-section (1) of Section 19 of the Family Courts Act, 1984.

13. A reading of sub-section (1) of Section 19 of the Family Courts Act, 1984 shows that an appeal is maintainable in two cases. It is maintainable against a judgment. It is also maintainable against an order if it is not an interlocutory order. The word 'judgment' has not been defined in the Family Courts Act, 1984 but is defined in sub-section (9) of Section 2 of the Code of Civil Procedure and simply means the statement given by the Judge on the grounds of a decree or order. Unfortunately, the definition is of not much use because it does not define either the wide or narrow parameters within which the word 'judgment' has to be construed nor does it state as to what are the characteristics of a 'judgment'.

14. We therefore seek guidance from the seminal judgment pronounced by the Supreme Court reported as 1981 SC 1786 Shah Babulal Khimji V/s Jayaben D.Kania & anr. The Supreme Court laid down parameters within which the Court must examine as to when an order, or for that matter even an interlocutory order, has the trappings of a 'judgment' and hence would be appealable. We are conscious of the fact that the Supreme Court was dealing with as to what would constitute a 'judgment' for the purpose of a letter patent appeal, but the broad principles laid down in the said case have universal application. As per the decision of the Supreme Court, an order and for that matter even an interlocutory order would be a 'judgment' if it has the quality of finality attached to it.

15. The Supreme Court laid down that there can be three kinds of judgments. Relevant portion of the decision is to the following effect:-

"(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 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 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 Section 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, 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. What is noticeable in sub-section (1) of Section 19 of the Family Courts Act, 1984 is that it has deviated from Section 96 of the Code of Civil Procedure and from sub-section (1) of Section 28 of the Hindu Marriage Act, 1955, in that, it provides for appeals against judgment. The Code of Civil Procedure does not provide for an appeal against judgments. It provides for an appeal against decrees and orders. Likewise Section 28 of the Hindu Marriage Act, 1955 also does not provide for appeals against judgment. It provides for appeals against decrees and certain orders.

17. The question would arise as to why the legislature made a departure by providing appeal against judgments also under subsection (1) of Section 19 of the Family Courts Act, 1984. Not that the legislature was not aware of the established practice or did not know the meaning of the word 'judgment' as was expounded by the Supreme Court in Shah Babulal Khimji's case (supra).

18. The Full Bench decision of the Allahabad High Court reported as 2005(23) LCD 1 Kiran Bala Srivastava V/s Jai Prakash Srivastava, the Division Bench judgment of the Uttarakhand High Court reported as AIR 2010 Utr 67 Rahul Samrat Tandon V/s Smt.Neeru Tandon and the Division Bench judgment of the Delhi High Court reported as 192(2012) DLT 714 Manish Aggarwal V/s Seema Aggarwal & ors. have taken the view afore-noted by us.

19. The contra view taken by the Full Bench of the Patna High Court, Division Bench of the Orissa High Court and the Division Bench of Bombay High Court have overlooked the distinction, that whereas the earlier statutes did not provide for an appeal against a judgment; provided for appeals against decrees and certain kind of orders, the statute at hand provides for an appeal against judgment.

20. The Full Bench of the Allahabad High Court, the Division Bench of the Delhi High Court and the Division Bench of Uttarakhand High Court have rightly opined that an order passed under Section 24 of the Hindu Marriage Act, 1955 though limited in its duration till the main proceedings are decided, is a final order.

21. Indeed, the order would be a judgment because it decides matters of moment and 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 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.

22. In fact in para 119 of the decision in Shah Babulal Khimji's case (supra) the Supreme Court itself recognized that an order, including an interlocutory order to be a judgment, may decide a question in controversy even in an ancillary proceeding in a suit.

23. Accordingly, we answer the reference by declaring that the Division Bench of this Court in the decision reported as RLW 2011 (2) Raj.1615 Ajay Malik V/s Smt.Shashi does not lay down the correct view. The reference is answered by holding that an appeal shall lie under Section 19(1) of the Family Courts Act, 1984 against an order passed by a Family Court under Section 24 of the Hindu Marriage Act, 1955.

Reference answered accordingly.