S.B. Criminal Revision No.463 of 2018,S.B. Criminal Revision No. 477 of 2018

25th January, 2019.

Petitioner Counsel: Mr. NAQVI SEHBAN NAJIB SABIHA
Respondent Counsel: Mr. SUDESH SAINI, Mr. MOHSIN for Mr. MOHD

Cases Cited:
Dinesh Kumar Yadav Vs. State of U.P. & Ors., 2018 ALL MR (Cri) JOURNAL 117=AIR 2017 ALL 29 [Para 3,10,15,16,17]
Kavita Vyas Vs. Deepak Dave, 2018(4) ALL MR (JOURNAL) 13=AIR 2018 Raj 72 [Para 4,11]
Anshul Kulshreshtha Vs. Smt. Swarnima Kulshreshtha & Anr., S.B. Cri. Rev. Petition No.483/2018, Dt.31.08.2018 (Raj.) [Para 7]
K. Ramnarayan & Ors. Vs. Pukhraj & Ors., 2018 (3) RLW 2334 (Raj.) [Para 9]
Shah Babulal Khimji Vs. Jayaben D. Kania & Anr., 1981 ALLMR ONLINE 409 (S.C.) : AIR 1981 SC 1786 [Para 11,15,17]
Rahul Samrat Tandon Vs. Smt. Neeru Tandon, AIR 2010 Utr 67 [Para 16]
Manish Aggarwal Vs. Seema Aggarwal, 190 (2012) DLT 714 [Para 16]

JUDGMENT

JUDGMENT :- Petitioner has preferred these separate revision petitions aggrieved by Judgment and Order dated 25.02.2017 passed by Additional Chief Judicial Magistrate No.10, Jaipur Metropolitan, Jaipur, whereby the Court under Section 23 of the PWDV Act, (hereinafter referred as the "Act, 2005") has awarded an interim maintenance of Rs.2500/- per month from the date of filing of application till the disposal of the main case and against the Judgment and Order dated 06.01.2018 passed by Additional Sessions Judge, Women Atrocities No.1, Jaipur Metropolitan, Jaipur, whereby the Appellate Court has increased the interim maintenance amount from Rs.2500/- per month to Rs.5,000/- per month.

2. It is contended by counsel for the petitioner that revision petition is maintainable against an order passed under Section 29 of the Protection of Women from Domestic Violence Act.

3. Counsel for the petitioner has placed reliance on "Dinesh Kumar Yadav vs. State of U.P. & Ors., AIR 2017 ALL 29 : [2018 ALL MR (Cri) JOURNAL 117]", where the question referred to the Larger Bench was whether a revision under Section 397/401 of the Cr.P.C. is maintainable before the High Court challenging the order passed by the Court of Sessions under Section 29 of the Act 2005. Full Bench of Allahabad High Court answered the reference in affirmative.

4. Reliance has also been placed on "Kavita Vyas vs. Deepak Dave, AIR 2018 Raj 72 : [2018(4) ALL MR (JOURNAL) 13]", whereby Larger Bench of this Court held that appeal lies before the High Court under Section 24 read with Section 19(1) of Family Courts Act, 1984 against an order passed by a Family Court under Section 24 of the Hindu Marriage

Act.

5. It is contended by counsel for the petitioner that petitioner is a conductor on magic vehicle and is earning a meagre amount, hence not in a position to pay the interim maintenance awarded by the Court below. It is also contended that the order passed by the Court below while allowing the application under Section 29 of the Protection of Women from Domestic Violence is a final order and thus a revision is maintainable. It is contended that petitioner is ready and willing to keep the respondent with her but she is pressing upon the petitioner to give her divorce, as she wants to marry someone else.

6. It is also contended that the trial court has awarded interim maintenance from the date of filing of the application without assigning any reason for awarding maintenance from the date of filing of application. Court has also not considered the fact that respondent is earning Rs.100/- to Rs.125/- per day. It is also contended that there was no justification for the appellate court to increase the maintenance amount from Rs.2500/- to Rs.5,000/- per month.

7. Counsel for the respondent has opposed the revision petition. His contention is that this Court in "Anshul Kulshreshtha vs. Smt. Swarnima Kulshreshtha & Anr. (S.B. Criminal Revision Peittion No.483/2018)" decided on 31.08.2018 has held that a revision is not maintainable against grant of interim maintenance there being a bar of Sub-Section (2) of Section 397 of Cr.P.C..

8. I have considered the contentions.

9. This Court relying on the Judgments of Rajasthan High Court in "K. Ramnarayan & Ors. vs. Pukhraj & Ors., 2018 (3) RLW 2334 (Raj.)" has held that grant of interim maintenance under Section 125 Cr.P.C. is an interlocutory order and a revision petition is not maintainable, as it does not decide the right and liabilities of the parties.

10. Larger Bench of High Court of Allahabad in "Dinesh Kumar Yadav vs. State of U.P. & Ors. [2018 ALL MR (Cri) JOURNAL 117] (Supra)" was dealing with the provisions of Section 29 of the "Act, 2005" and provisions pertaining to revision under the Cr.P.C.. It answered the reference in affirmative and held that revision under Section 397/401 of Cr.P.C. against the judgment and order passed by the Court of Sessions under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is maintainable. That was also a case where interim maintenance of Rs.2,000/- was awarded in favour of the respondent-wife and appeal preferred by the husband, was rejected by the Sessions Court.

11. Larger Bench of Rajasthan High Court in Kavita Vyas vs. Deepak Dave [2018(4) ALL MR (JOURNAL) 13] (Supra) while dealing with Section 24 of the Hindu Marriage Act relying on "Shah Babulal Khimji vs. Jayaben D. Kania & Anr. AIR 1981 SC 1786 : [1981 ALLMR ONLINE 409 (S.C.)]" held that an order passed under Section 24 of the Hindu Marriage Act though limited in its duration till the main proceedings are decided, is a final order and hence appealable.

12. Section 24 of the Hindu Marriage Act reads as under:-

"Maintenance pendente lite and expenses of proceedings. Where in any proceeding - under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner 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: [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be"].

13. The order in this case has been passed by the Magistrate under Section 23 of the Protection of Women from Domestic Violence Act, 2005.

14. Section 23 of the "Act, 2005" reads as under:

"Power to grant interim and ex parte orders.-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper".

15. Section 29 of the Act makes provisions for filing of appeal to the Court of Sessions. Section 28 deals with procedure and contemplates that all proceedings under Sections 12,18,19,20,21,22 & 23 shall be governed by the provisions of Cr.P.C. Since Section 23 is governed by provisions of Cr.P.C., any order passed therein would be subject to the revision jurisdiction and revision would lie against an order passed in appeal under Section 29 of the Act as held by the Allahabad High Court in Dinesh Kumar Yadav vs. State of U.P. & Ors. [2018 ALL MR (Cri) JOURNAL 117] (Supra). The question is whether order passed under Section 23 shall be considered as interlocutory order, thereby creating a bar on filing of revision under Section 397 (2) of Cr.P.C. or it should be considered as final order. The Apex Court in AIR 1981 SC 1786 : [1981 ALLMR ONLINE 409 (S.C.)] Shah Babulal Khimji vs. Jayaben D. Kania & Anr., has laid down that there can be three kinds of judgments-final judgments, intermediary or interlocutory judgment. For the purpose of deciding the controversy in question, I deem it proper to refer the judgment of the Supreme Court, wherein intermediary or interlocutory judgment has been dealt with, the same, reads as under:-

"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. The Full Bench of Allahabad High Court in "Dinesh Kumar Yadav vs. State of U.P. & Ors., AIR 2017 ALL 29 : [2018 ALL MR (Cri) JOURNAL 117]", Division Bench of Uttrarakhand High Court in "Rahul Samrat Tandon vs. Smt. Neeru Tandon, AIR 2010 Utr 67" and Division Bench of Delhi High Court in "Manish Aggarwal vs. Seema Aggarwal, 190 (2012) DLT 714" have held that an order passed under Section 24 of the Hindu Marriage Act though limited in its jurisdiction till the main proceedings are decided is a final order.

17. Apex Court in Shah Babu Lal khimji [1981 ALLMR ONLINE 409 (S.C.)] (Supra) has recognised that an order, including interlocutory order before judgment may decide a question or controversy even in an ancillary proceedings in a suit. Since order passed under Section 23 though limited in its jurisdiction till the main proceedings is a final order, hence there is no Bar for entertaining a revision. I find support from the Judgment of Larger Bench of the Allahabad High Court in Dinesh Kumar Yadav [2018 ALL MR (Cri) JOURNAL 117] (Supra) which was a case akin to the present one.

18. Now reverting to the merits of the case, court below has awarded Rs.2500/- per month as interim maintenance from the date of filing of application which amount has been enhanced to Rs.5000/- per month the Appellate Court.

19. Petitioner in his reply has stated that he is conductor of a magic taxi, whereas now in the revision petition, he has mentioned that taxi has been confiscated by the Finance Company owing to the non payment of dues.

20. It is evident from Order dated 04.01.2018 passed by Additional Session Judge No.8, Jaipur Metropolitan, Jaipur that Tata Magic Registration No.RJ 14 PC 0400 was taken on loan by the petitioner. He was not able to pay the installments and the total amount outstanding towards Finance Company is to the tune of Rs.2,00,000/- (two lakh), and for that reason the vehicle has been seized by the Finance Company.

21. In view of the fact that vehicle has been seized by the Finance Company due to non deposit of installments, it is evident that petitioner is not having means, as he could not even retain his vehicle and was unable to pay the installments. It is also apparent that total amount outstanding towards Finance Company is also to the tune of Rs.2,00,000/- (two lakh), the Appellate Court clearly erred in enhancing the maintenance amount from Rs.2500/- to Rs.5000/-. Looking to the financial position of the petitioner, grant of maintenance from the date of application is not proper as it cannot be expected from the petitioner who is already in debts to pay the maintenance from the date of application.

22. What amount should be awarded as maintenance would be finally decided by the Court after conclusion of the evidence. Hence, I deem it proper to partly allow the Revision petitions.

23. The Revision petitions are partly allowed. The Judgment and Order passed by the Appellate Court is quashed and set aside and the Judgment and Order passed by the Trial Court is modified to the extent that the maintenance amount of Rs.2500/- would be payable from the date of order, instead of date of application.

24. Copy of this order be placed in the connected matter.

Petition allowed.