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Dr. Dilip Kumar @ Dr. Dilip Kumar … vs State Of Bihar And Anr on 2 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.6740 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-

Dr. Dilip Kumar @ Dr. Dilip Kumar Sharma @ Dilip Sharma S/o Late Shiv
Pujan Prasad r/o Keshopur Grudwara Road P.S. Jamalpur, District Munger.

… … Petitioner/s
Versus

1. State of Bihar

2. Swati Omi wife of Dr. Dilip Kumar Sharma @ Dr. Dilip Kumar of Chhoti
Kelawari Anand Lane P.S. – Kotwali, District – Munger.

… … Opposite Party/s

Appearance :

For the Petitioner/s : M/s Rajesh Kumar Singh, Amicus Curiae
Ansul, Amicus Curiae
For the Opposite Party/s : Dr. Ravindra Kumar App

CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA)

Date : 02-09-2019

1. This petition under Section 482 of the Code

of Criminal Procedure has been filed on behalf of the petitioner

for quashing of order dated 3.12.2015 passed by Principal

Judge, Family Court, Munger in Maintenance Case No. 153 of

2014 directing the petitioner to pay interim compensation to his

wife (O.P. No. 2) and his children @ Rs. 15,000/- per month

since the date of filing of interim petition dated 3.8.2015 and

also directed to pay lump sump of Rs. 10,000/- towards filing of

maintenance petition and other petitions and attending the court
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till the date and onward Rs. 1000/- on each date towards

litigation cost.

2. O.P. No. 2 filed Maintenance Case No. 153

of 2014 under Section 125 of the Code of Criminal Procedure

against petitioner for her maintenance as well as for

maintenance of her three children.

3. The petitioner appeared in the aforesaid

maintenance case and filed his show cause. However, during

pendency of the aforesaid maintenance case, O.P. No. 2 under

second proviso of Section 125 of the Code of Criminal

Procedure filed a petition for grant of interim maintenance and

the expenses of the proceeding of her as well as her minor

children. The petitioner contested the aforesaid petition but the

learned Principal Judge, Family Court, Munger, allowed the

interim maintenance petition passing interim order dated

3.12.2015, which has been challenged before this Court by

filing petition under Section 482 of the Code of Criminal

Procedure.

4. Initially, this petition was listed before learned

Single Bench of this Court and learned Single Bench having

heard the matter at length vide order dated 21.11.2108, doubted

the correctness of the view expressed by Division Bench of this
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Court in Md. Akil Ahmad Vs. State of Bihar and Ors.

reported in 2016(4) PLJR 968 and, accordingly, observed that

the law laid down by the Division Bench of this Court in Md.

Akil Ahmad case (Supra) needs reconsideration by the

Division Bench as no finding was given over applicability of

Section 482 of the Code of Criminal Procedure though

impliedly jurisdiction has been derecognised and, directed to

place the matter before Division Bench and, accordingly, by

order of the Chief Justice, this matter has been placed before us.

5. In Md. Akil Ahmad case (Supra), the issue

before the Division Bench for determination was the

maintainability of application under Section 482 of the Code of

Criminal Procedure against the order of the interim

maintenance passed by the Family Court under second proviso

of Section 125 of Code of Criminal Procedure during the

pendency of the proceeding of maintenance under Chapter IX of

the Code of Criminal Procedure. In the above stated case, the

learned Division Bench of this Court having considered various

aspects as well as decisions cited came to conclusion that the

only remedy available to challenge the order of interim

maintenance passed under second proviso of Section 125 of the

Code of Criminal Procedure was to make an application under
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Article 227 of the Constitution of India before this Court.

6. The learned Division Bench in Md. Akil

Ahmad case (Supra), further, held that petition under Section

482 of the Code of Criminal Procedure filed against the order of

interim maintenance passed by Family Court under second

proviso of Criminal Procedure Code is not maintainable.

7. It is pertinent to mention here that at the time

of hearing, none appeared on behalf of the petitioner to assist

the Court and, accordingly, this Court appointed Sri Rajesh

Kumar Singh, advocate as well as Sri Ansul, Advocate, Amicus

Curiae to assist the Court.

8. Learned Amicus Curiae Sri Rajesh Kumar

Singh, Advocate, submitted that the view expressed by Hon’ble

Division Bench in Md. Akil Ahmad’s case (Supra) is not a

correct view because, the inherent power vested into the court

under Section 482 of the Code of Criminal Procedure cannot

be limited. He, further, submitted that in Madhu Limaye Vs.

State of Maharashtra reported in (1977) 4 SCC 551, it has

been held by Apex Court that inherent power vested into the

Court under Section 482 of the Code of Criminal Procedure may

be invoked for quashing interlocutory orders even though

revision is prohibited. Learned Amicus Curiae Mr. Singh
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submitted that the law laid down in Madhu Limaye case

(Supra) still holds the field, and, therefore, the view of learned

Division Bench rendered in Md. Akil Ahmad case (Supra)

appears to be per incurium. Learned Amicus Curiae Mr. Singh,

further, submitted that no doubt, in the case of Amar Nath and

Ors. Vs. State of Haryana and Ors. reported in (1977) 4 SCC

137, the two Hon’ble Judges of the Apex Court held that

inherent powers cannot be exercised when there is an express

power in a provision of the Code but the correctness of

aforesaid view was doubted by Hon’ble three Judges of

Supreme court in Madhu Limaye case (Supra) and came to

conclusion that inherent powers may be invoked for quashing

interlocutory order even though revision is prohibited.

9. Learned Amicus Curiae Mr. Ansul, Advocate,

seconded the submissions advanced by learned Amicus Curiae

Mr. Singh. However, learned Amicus Curiae Mr. Ansul

submitted that the order of ad interm maintenance being an

intermediate order, the revision against said order is also

maintainable. Learned Amicus Curiae Mr. Ansul submitted that

in the case of Manish Aggarwal Vs. Seema Aggarwal and

others decided on 13.9.2012 in FAO No. 388/2012, CM No.

15067/2012 and CM No. 15068/2012, the Division Bench of
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Hon’ble Delhi High Court has answered all the questions which

have been raised in the present petition. He, further, submitted

that a person aggrieved by the order of ad interim maintenance

can either file petition under Section 482 of the Code of

Criminal Procedure or under Section 19(4) of Family Courts

Act. He referred several decisions in support of his contentions

such as follows:

(I) Madhu Limaye vs. State of Maharashtra

[AIR 1978 SC 47]

(ii) Manish Aggarwal Vs. Seema Aggarwal and

others decided on 13.9.2012 in FAO No.

388/2012, CM No. 15067/2012 and CM No.

15068/2012,

(iii) Amar Nath and Ors. Vs. State of Haryana

and Ors. [(1977) 4 SCC 137]

(iv) Shah Babulal Khimji vs. Jayaben D. Kania

Anr [AIR 1981 SC 1786]

(v) Prabhu Chawla Vs. State of Rajsthan

[2016(16) SCC 30]

10. Learned Additional Public Prosecutor also

submitted that the order of interim maintenance passed under

second proviso of Section 125 of the Code of Criminal
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Procedure is revisable order and hence, revision petition is

maintainable under Section 19(4) of the Family Courts Act,

1984.

11. Having heard the above stated contentions, I

went through the record as well as decisions cited before this

Court.

12. In Md. Akil Ahmad case (Supra), the

Division Bench considered the question of maintainability of

application filed under Section 482 of the Code of Criminal

Procedure against the order of interim maintenance passed by

the Family Court under second proviso of Section 125 of the

Code of Criminal Procedure during the pendency of the

proceeding of maintenance under Chapter IX of the Code of

Criminal Procedure. The learned Division Bench in the above

stated case after referring to the definition of interlocutory order

as provided in Blacks Law Dictionary (1990) page 814 and

having taken into consideration the decision of Single Judge of

this Court rendered in Arvind Kumar Singh Vs. State of Bihar

reported in 2014(4) PLJR 587 came to the conclusion that the

order of interim maintenance passed by the Family Court under

second proviso of Section 125 of the Code of Criminal

Procedure during pendency of proceeding of maintenance under
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Chapter IX of the Code of Criminal Procedure is an

interlocutory order and in terms of Section 19(4) of Family

Courts Act, the revision is barred against the aforesaid order.

Furthermore, learned Division Bench in the aforesaid Md.

Akil Ahmad case (Supra) held that Section 10(2) of the Family

Courts Act permits the applicability of provisions of Code of

Criminal Procedure, 1973 to the proceeding under Chapter IX of

the Code of Criminal Procedure before a Family Court and,

therefore, in terms of Sub Section 2 of Section 10 of the Family

Courts Act, the provisions of the Code of Criminal Procedure

are not applicable before the High Court as to test the propriety

and correctness of any order passed under the proceeding of

Chapter IX of the Code by the Family Court.

13. For better appreciation, I would like to

reproduce paragraph 18, 19 and 20 of the Md. Akil Ahmad

case (Supra) which runs as follows:-

18. For deciding the issue as referred above, we
may take notice of Section 10 of the Act, which reads thus:

“Section 10. Procedure generally-(1)
Subject to the other provisions of this Act and the
rules, the provisions of the Code of Civil Procedure,
1908 (5 of 1908) and of any other law for the time
being in force shall apply to the suits and proceedings
other than the proceeding under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974), before
a Family Court and for the purposes of the said
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provisions of the Code, a Family Court shall be
deemed to be a Civil Court and shall have all the
powers of such Court.

(2) Subject to the other provisions of this
Act and the rules, the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) or the rules
made there under, shall apply to the proceedings under
Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-
section (2) shall prevent a Family Court from laying
down its own procedure with a view to arrive at a
settlement in respect of the subject matter of the suit or
proceedings or at the truth of the facts alleged by the
one party and denied by the other.”

19. From bare reading of Section 10(2) of the
Act, it appears that the provisions of Code of Criminal
Procedure 1973 or the rules made there under are made
applicable to the proceedings under Chapter IX of the
Code, only before a Family Court. Therefore, in terms of
sub-section 2 of Section 10 of the Act, the provisions of
the Code of Criminal Procedure are not applicable before
the High Court as to test the propriety and correctness of
any order passed under the proceedings of Chapter IX of
the Code, by a Family Court. An appeal against the
judgment or order of the Family Court is filed before the
High Court in terms of Section 19(1) of the Act, not under
the provisions of Code of Criminal Procedure; similarly, a
revision application is filed against an order of the Family
Court, relating to proceedings of Chapter IX of the Code,
under Section 19(4) of the Act not under the provisions of
Code of Criminal Procedure. Therefore, the application of
provisions of the Code of Criminal Procedure is confined
only to the Family Court in the proceedings under
Chapter IX of that Code.

20. It is worth to take notice of Section 20 of
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the Family Courts Act, which reads thus:

“20. Act to have overriding effect.- The
provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force
or in any instrument having effect by virtue of any
law other than this Act.”

14. Furthermore, the learned Division Bench in

the case of Md. Akil Ahmad (Supra) having relied upon a

decision reported in 1990(2) PLJR 693 held that if a person is

aggrieved by order of the interim maintenance passed under

second proviso of Section 125 of the Code of Criminal

Procedure, he may make an application under Article 227 of the

Constitution of India. I would like to refer paragraphs 22 and 23

of the decision rendered in Md. Akil Ahmad case (Supra),

which runs as follows:

“22. Under the similar situation a Full Bench
of this Court had occasion to determine the issue:
“Whether an appeal would be available under Section 19
(1) of the Family Courts Act, 1984 against an order
passed under Section 24 of the Hindu Marriage Act,
1955?” This Court while delivering judgment, reported in
AIR 2010 Patna 184, held that an order passed by the
Family Court, being interlocutory in nature, would be
amenable to the writ jurisdiction under Article 227 of the
Constitution of India.

23. We would also like to refer a decision of
this Court reported in 1990(2) PLJR 693, rendered by a
larger Bench of this Court. In the said decision, Their
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Lordships, in paragraph 16, held as under:

“16. Whether the High Court can exercise such
power of superintendence only when no appeal or
revision has been provided under the Code against orders
passed by such criminal courts or even in cases where the
persons concerned have availed the remedy provided
under the Code for setting aside such orders? It may be
urged that in the aforesaid two Full Bench decisions of
this Court and in the case of Chandra Shekhar Singh
Another (supra) before the Supreme Court, no internal
remedy by way of appeal or revision had been provided,
rather there was a bar so far exercise of appellate or
revisional power of this Court under the old Code is
concerned, in my view whether a bar has been placed or
not on exercise of the appellate or revisional power under
the Code itself is not of much consequence so far as the
power of this Court under Article 227 of the Constitution
is concerned. But there may be three situations under
which the power under Article 227 may be invoked.
Firstly, where no appeal or revision has been provided
against the order in question, secondly, where the person
aggrieved has already filed a revision application before
Sessions Judge and his revision application to this Court
against the order passed by the Sessions Judge is barred
under Section 397(3) of the Code. The third eventuality
may be where although a revision application or an
application under Section 482 of the Code is maintainable
before this Court, still an application under Article 227 is
filed. In my view, there is no question exercise of power
under Article 227 in the third category of cases, the
remedy being available to petitioner under the provisions
of the Code itself. So far the cases falling in the first
category i.e., where no appeal or revision has been
provided as has been said by the Supreme Court, it will
require an exceptional case before power under Article
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227 is to be exercised. In respect of the cases coming
under second category i.e., the revision application have
already been dismissed by the Sessions Judge, and bar
under Section 397(3) is applicable for interference under
Article 227, very exceptional circumstances must exist in
view of the judgment of the Supreme Court in the case of
Jagir Singh(Supra)”.

15. Now the question for determination is as to

whether the petition under Section 482 of the Code of Criminal

Procedure can be filed before the High Court against the order

of interim maintenance passed by Family Court under second

proviso of Section 125 of the Code of Criminal Procedure and

the view expressed by the Division Bench in Md. Akil Ahmad

case (Supra) needs reconsideration.

16. I have noticed that in Md. Akil Ahmad case

(Supra), the Division Bench has given specific finding that in

terms of Section 10(2) of the Family Courts Act, the provision

of Section 482 Code of Criminal Procedure cannot be exercised

by the High Court against the order of interim maintenance

passed by Family Court under second proviso of Section 125 of

the Code of Criminal Procedure as the provisions of Code of

Criminal Procedure 1973 or the Rules made thereunder are

made applicable to the proceedings under Chapter IX of the

Code, only before a Family Court and, therefore, in terms of sub
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Section 2 of Section 10 of the Act, the provisions of the Code of

Criminal Procedure are not applicable before the High Court as

to test the propriety and correctness of any order passed under

the proceeding of Chapter IX of the Code of Criminal Procedure

and, furthermore, revision application under Section 19(4) of

the Family Court is filed against an order of Family Court and

not under the provisions of Code of Criminal Procedure.

However, I have to see as to whether a petition under Section

482 of the Code of Criminal Procedure can be filed against the

order passed by Family Court under second proviso of Section

125 of the Code of Criminal Procedure.

17. Here, I would like to mention that the above

stated controversy arose before several other High Courts of this

country and the different High Courts answered the question in

their own ways.

18. In case of Manish Aggarwal Vs. Seema

Aggarwal and others decided on 13.9.2012 in FAO No. 388 of

2012; M No. 15667 of 2012 and CM No. 15668 of 2012, the

Division Bench of Delhi High Court having considered the

divergent views of different High Courts of this country came

to conclusion that the remedy of criminal revision would be

available against both the interim and final order passed under
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Sections 125 to 128 of the Code of Criminal Procedure under

sub Section (4) of Section 19 of the Family Courts Act. The

Division Bench of Delhi High Court in the aforesaid case also

held that the interim maintenance order passed under second

proviso of Section 125 of the Code of Criminal Procedure is not

an interlocutory order rather it is an intermediate order against

which revision can be filed.

19. The Second proviso of Section 125 of the

Code of Criminal Procedure inserted by the amending Act, 1950

of 2001 with effect from 24.9.2001, specifically, empowers the

Magistrate to grant interim maintenance pending consideration

of application under Section 125 of the Code of Criminal

Procedure. For better appreciation of the matter, I would like to

refer the provisions of Sections 125 to 128 of the Code of

Criminal Procedure, which runs as follows:

“125. Order for maintenance of wives, children
and parents.–

(1) If any person having sufficient
means neglects or refuses to maintain–

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself,
or

(c) his legitimate or illegitimate child (not being
a married daughter) who has attained majority,
where such child is, by reason of any physical or
mental abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable to maintain
himself or herself, a Magistrate of the first class
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may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the
maintenance of his wife or such child, father or
mother, at such monthly rate [***], as such
Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time
direct:

Provided that the Magistrate may order the father
of a minor female child referred to in clause (b)
to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married,
is not possessed of sufficient means:

[Provided further that the Magistrate may, during
the pendency of the proceeding regarding
monthly allowance for the maintenance under
this sub-section, order such person to make a
monthly allowance for the interim maintenance
of his wife or such child, father or mother, and
the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from
time to time direct:

Provided also that an application for the monthly
allowance for the interim maintenance and
expenses of proceeding under the second proviso
shall, as far as possible, be disposed of within
sixty days from the date of the service of notice
of the application to such person.]

Explanation.–For the purposes of this Chapter,-
( a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his
majority;

(b) “wife” includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.

[(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if
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so ordered, from the date of the application for
maintenance or interim maintenance and
expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without
sufficient cause to comply with the order, any
such Magistrate may, for every breach of the
order, issue a warrant for levying the amount due
in the manner provided for levying fines, and
may sentence such person, for the whole or any
part of each month’s 4[allowance for the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be,]
remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner
made:

Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:

Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
Explanation.– If a husband has contracted
marriage with another woman or keeps a
mistress, it shall be considered to be just ground
for his wife’ s refusal to live with him.

(4 ) No wife shall be entitled to receive an 1
[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the
case may be,] from her husband under this
section if she is living in adultery, or if, without
any sufficient reason, she refuses to live with her
husband, or if they are living separately by
mutual consent.

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(5 ) On proof that any wife in whose favour an
order has been made under this section in living
in adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent.

126. Procedure.– (1) Proceedings under section
125 may be taken against any person in any
district–

(a ) where he is, or
(b ) where he or his wife resides, or
(c ) where he last resided with his wife, or as the
case may be, with the mother of the illegitimate
child.

(2) All evidence in such proceedings shall be
taken in the presence of the person against whom
an order for payment of maintenance is proposed
to be made, or, when his personal attendance is
dispensed with, in the presence of his pleader,
and shall be recorded in the manner prescribed
for summons-cases:

Provided that if the Magistrate is satisfied that
the person against whom an order for payment of
maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend
the Court, the Magistrate may proceed to hear
and determine the case ex parte and any order so
made may be set aside for good cause shown on
an application made within three months from
the date thereof subject to such terms including
terms as to payment of costs to the opposite party
as the Magistrate may think just and proper.

(3 ) The Court in dealing with applications under
section 125 shall have power to make such order
as to costs as may be just.

127. Alteration in allowance .– [(1 ) On proof
of a change in the circumstances of any person,
receiving, under section 125 a monthly
allowance for the maintenance or interim
maintenance, or ordered under the same section
to pay a monthly allowance for the maintenance,
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or interim maintenance, to his wife, child, father
or mother, as the case may be, the Magistrate
may make such alteration, as he thinks fit, in the
allowance for the maintenance or the interim
maintenance, as the case may be.]

(2 ) Where it appears to the Magistrate that, in
consequence of any decision of a competent
Civil Court, any order made under section 125
should be cancelled or varied, he shall cancel the
order or, as the case may be, vary the same
accordingly.

(3 ) Where any order has been made under
section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from, her
husband, the Magistrate shall, if he is satisfied
that–

(a ) the woman has, after the date of such
divorce, remarried, cancel such order as from the
date of her remarriage;

(b ) the woman has been divorced by her
husband and that she has received, whether
before or after the date of the said order, the
whole of the sum which, under any customary or
personal law applicable to the parties, was
payable on such divorce, cancel such order,–
(i ) in the case where such sum was paid before
such order, from the date on which such order
was made:

(ii ) in any other case, from the date of expiry of
the period, if any, for which maintenance has
been actually paid by the husband to the woman;
(c ) the woman has obtained a divorce from her
husband and that she had voluntarily surrendered
her rights to 1 [maintenance or interim
maintenance, as the case may be,] after her
divorce, cancel the order from the date thereof.

(4 ) At the time of making any decree for the
recovery of any maintenance or dowry by any
person, to whom a [monthly allowance for the
maintenance and interim maintenance or any of
them has been ordered] to be paid under section
125, the Civil Court shall take into account the
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sum which has been paid to, or recovered by,
such person [as monthly allowance for the
maintenance and interim maintenance or any of
them, as the case may be, in pursuance of] the
said order.

128. Enforcement of order of maintenance.–
A copy of the order of 3 [maintenance or interim
maintenance and expenses of proceedings, as the
case may be,] shall be given without payment to
the person in whose favour it is made, or to his
guardian, if any, or to the person to 4 [whom the
allowance for the maintenance or the allowance
for the interim maintenance and expenses of
proceeding, as the case may be,] is to be paid;
and such order may be enforced by any
Magistrate in any place where the person against
whom it is made may be, on such Magistrate
being satisfied as to the identity of the parties
and the non-payment of the 5 [allowance, or as
the case may be, expenses, due].”

20. Furthermore, I would like to refer sub Section

(2) of Section 7 of the Family Courts Act, 1984, which runs as

follows

7. Jurisdiction
(1) ….. ……. …….. ……….. ……….. …….. …….
(2) Subject to the other provisions of this Act, a
Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the
First Class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the
Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it
by any other enactment.”

21. Furthermore, I would like to refer sub Section

(2) of Section 10 of the Family Courts Act, 1984, which runs as
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follows:-

“10. Procedure generally

(2) Subject to the other provisions of this
Act and the rules, the provisions of the Code of
Criminal Procedure, 1973, (2 of 1974) or the rules
made thereunder, shall apply to the proceedings under
Chapter IX of that Code before a Family Court.”

22. Section 14 of the Family Courts Act permits

the application of Indian Evidence Act, 1872, whereas Sections

15 and 16 of the Family Courts Act speak about the procedure

to record oral evidence in suits or proceeding before a Family

Court. Section 17 of the Family Courts Act speaks about the

contents of judgment pronounced by the Family Court whereas

Section 18 of the Act speaks about the execution of decrees and

orders passed by the Family Court. Section 19 of the Act

prescribes the procedure of appeals and revisions. Here, I would

like to refer Section 19 of the Family Courts Act, which runs as

follows:-

“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
2[or from an order passed under Chapter IX of the
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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
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 with in
its jurisdiction passed an order under Chapter IX of
the Code of Criminal Procedure, 1973 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 preferred under sub-section (1) shall
be heard by a Bench consisting of two or more
Judges.”

23. From bare perusal of Section 19(2) of the Act,

it is obvious that no appeal shall lie from an order passed under

Chapter IX of Code of Criminal Procedure, 1973 but Section

19(4) of the Act gives power to High Court to 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 for the

purpose of satisfying itself as to the correctness, legality or
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propriety of the order, not being an interlocutory order, and, as

to the regularity of such proceeding. Therefore, it is obvious

from perusal of Section 19(4) of the Family Courts Act that

revision petition can be filed against the order of Family Court

passed under Chapter IX of the Code of Criminal Procedure,

1973 subject to condition that the order of Family Court should

not be an interlocutory order. Now, question arises as to whether

order passed by Family Court under second proviso of Section

125 of the Code of Criminal Procedure is an interlocutory order

or not.

24. The word ‘interlocutory order’ has not been

defined either in Family Courts Act, 1984 or in the Code of

Criminal Procedure, 1973 but as per Black‟s Law Dictionary

(1990) P. 814, the word “interim” means “for the time being”,

“in the meantime”, “meanwhile”, “temporary”, “provisional”,

“not final”, “intervening”. The word “interim” means

“intervening” when it is used as a noun and when used as an

adjective it means “temporary” or “provisional”. As per

Advanced Law Lexicon (2005) Vol. II, ” interlocutory” means,

not that which decides the cause, but that which only settles

some intervening matter relating to the cause; a decree or

judgment given provisionally during the course of legal action.
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The word ‘interlocutory order’ has also been defined in

Halsbury’s Laws of England, Volume 22 of the third edition at

page 742 and para 1606 of the same reads as under:

“1606. Final or interlocutory. No
definition is given in the Judicature Acts, or the
orders and rules thereunder, of the terms “final”
or “Interlocutory”, and a judgment or order may
be final for one purpose and interlocutory for
another, or final as to part and interlocutory as to
part. The meaning of the two words must
therefore be considered separately in relation to
the particular purpose for which it is required.”

25. From comparative reading of the above stated

definitions, I find that the definition of word ‘interlocutory’,

given in Black’s Law dictionary, is not explanatory in nature

whereas an elaborate explanation has been given in

Halsbury’s Laws of England. The perusal of definition given

in Halsbury’s Laws of England goes to show that an order

which substantially affects rights of an accused or party or

decides certain rights of the parties during pendency, proceeding

is not an interlocutory order. Furthermore, the meaning of

interlocutory should be considered in relation to the particular

purpose for which it is required.

26. Here, I would like to mention that the Full

bench of Allahabad High Court in Smt. Kiran Bala Srivastava
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Vs. Jai Prakash Srivastava [2005(23) LCD 1] discussed the

judgment delivered by the Apex Court in Shah Babulal Khimji

Vs. Jayaben D. Kania Anr. reported in AIR 1981 SC 1786

and I think it proper to extract the paragraph 11 of the judgment

delivered in Smt. Kiran Bala Srivastava (supra) which runs

as follows:

11. ….The Apex Court laid down that there can be

three kinds of judgments. Relevant portion of the said judgment

to that effect is as follows:

“(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 the 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
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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 Sec. 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
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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…….”

27. Admittedly, an interim order under second

proviso of Section 125 of the Code of Criminal Procedure is

passed during pendency of petition filed under Section 125(1)

of the Code of Criminal Procedure. The second proviso of

Section 125 of the Code of Criminal Procedure has been

brought on statute book to give instant relief to the applicant

but the interim order, admittedly, decides rights and liabilities

of the respective parties. No doubt, before passing interim order

under Section 125 of the Code of Criminal Procedure, there is

no need of formal proof of the claim of the applicant but the

interim maintenance order passed under second proviso of

Section 125 of the Code of Criminal Procedure, prima facie,

decides rights and liabilities of the parties. Furthermore, the

interim maintenance order passed under second proviso of

Section 125 of the Code of Criminal Procedure can be altered

from time to time. Similarly, the order passed under Section

125(1) of the Code of Criminal Procedure can also be altered at
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subsequent stage, if the circumstance demands.

28. Furthermore, I find that if a person against

whom the order of interim maintenance has been passed fails

without sufficient cause to comply with the order of the Court,

coercive steps may be taken against him. The order passed

under second proviso of Section 125 of the Code of Criminal

Procedure appears to be an interlocutory order on its very face

but as to whether in true sense the order passed under second

proviso of Section 125 of the Code of Criminal Procedure is an

interlocutory order or not, it has to be seen.

29. Section 127 of the Code of Criminal

Procedure gives power to Court to alter the order passed either

under Section 125(1) of the Code of Criminal Procedure or

under second proviso of Section 125 of the Code of Criminal

Procedure, therefore, according to Section 127 of the Code of

Criminal Procedure, even the order passed under Section

125(1) of the Code of Criminal Procedure is not a final order

and that order can be altered later on, if the change of

circumstance demands. Similar position is in respect of second

proviso of Section 125 of the Code of Criminal Procedure as the

order of interim maintenance can also be altered at subsequent

stage of the proceeding, therefore, it is obvious that nature of
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both the orders, either passed under Section 125(1) of the Code

of Criminal Procedure or passed under second proviso of

Section 125 of the Code of Criminal Procedure, are quite similar

in nature as both orders can be altered at subsequent stage.

Section 19(4) of the Family Courts Act does not, specifically,

bar the revision against the order passed under second proviso

of Section 125 of the Code of Criminal Procedure and the only

restriction is to avail the provision of Section 19(4) of the

Family Courts Act that order in challenge should not be an

interlocutory order. Therefore, in the aforesaid circumstance,

the nature of order of interim maintenance passed under second

proviso of Section 125 of the Code of Criminal Procedure

appears is an intermediate order and Section 19(4) of Family

Courts Act, 1984 bars the entertainment of revision only against

interlocutory order and not against intermediate order.

30. As I have already observed that the second

proviso of Section 125 of the Code of Criminal Procedure falls

under the category of intermediate order, therefore, the interim

maintenance order passed under second proviso of Section 125

of the Code of Criminal Procedure can be revised under Section

19(4) Family Courts Act.

31. However, it is pertinent to note here that
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learned Division Bench of this Court in Md. Akil Ahmad case

(supra) did not consider the aforesaid aspect and treating the

order passed under second proviso of Section 125 of the Code

of Criminal Procedure as interlocutory order came to conclusion

that revision under Section 19(4) of the Family Courts Act,

1984, against the interim maintenance order passed under

second proviso of Section 125 of Code of Criminal Procedure

is not maintainable. Therefore, in my view, the aforesaid

observation of learned Division Bench of this Court given in

Md. Akil Ahmad (supra) case needs reconsideration by a

larger Bench.

32. It is true that Sub Section (2) of Section 7 of

Family Courts Act, 1984, authorises only Family Court to

exercise jurisdiction given to a Magistrate of the First Class

under Chapter IX of the Code of Criminal Procedure, 1973 and

furthermore, sub Section (2) of Section 10 of Family Courts

Act, 1984, speaks that the provisions of the Code of Criminal

Procedure, 1973, or the Rule made thereunder shall apply to the

proceedings under Chapter IX of the Code of Criminal

Procedure, 1973, therefore, it is obvious that according to sub

Section (2) of Section 10 of the Family Courts Act, 1984, the

provisions of Code of Criminal Procedure shall only apply to
Patna High Court CR. MISC. No.6740 of 2016 dt.02-09-2019
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the proceeding under Chapter IX of Code of Criminal

Procedure, 1973, before a Family Court. Furthermore, Section

19(4) of the Family Courts Act, 1984 gives power to High Court

to 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 for

the purpose of satisfying itself as to the correctness, legality or

propriety of the other order, not being an interlocutory order ,

and as to the regularity of such proceeding. Therefore, it is

obvious that the order passed under Chapter IX of the Code of

Criminal Procedure, 1973 by the Family Court can only be

challenged by invoking the provision of Section 19(4) of the

Family Courts Act, 1984, and not by invoking the provisions of

Code of Criminal Procedure. The only rider of challenging the

order passed under Chapter IX of the Code of Criminal

Procedure, 1973, is that the said order should not be

interlocutory order but as I have already discussed that the

interim maintenance order passed under second proviso of

Section 125 of the Code of Criminal Procedure is not an

interlocutory order rather it is an intermediate order which can

be challenged under Section 19(4) of the Family Courts Act,

1984 and, therefore, it is apparent from the aforesaid
Patna High Court CR. MISC. No.6740 of 2016 dt.02-09-2019
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discussions that the interim maintenance order passed under

second proviso of Section 125 of the Code of Criminal

Procedure by the Family Court cannot be challenged under

Section 482 of the Code of Criminal Procedure, 1973 because

the remedy is available to challenge the said order in Section

19(4) of the Family Courts Act itself.

33. In view of the aforesaid discussions, in my

view, the matter requires consideration by a larger Bench of this

Court as in the case of Md. Akil Ahmad (supra), Learned

Division Bench of this Court has held that the interim

maintenance order passed under second proviso of Section 125

of the Code of Criminal Procedure, 1973, is an interlocutory

order, therefore, I formulate the following questions for

determination by a larger Bench:-

(I) Whether interim maintenance order

passed under second proviso of Section 125 of the

Code of Criminal Procedure, 1973, is an

interlocutory order or an intermediate order?

(II) If the interim maintenance order

passed under second proviso of Section 125 of the

Code of Criminal Procedure, 1973, is an

intermediate order, whether revision against the
Patna High Court CR. MISC. No.6740 of 2016 dt.02-09-2019
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said order is maintainable under Section 19(4) of

the Family Courts Act, or not?

34. Let this order be placed before Hon’ble the

Chief Justice for constitution of a larger Bench for giving

decision on the above formulated questions.

(Hemant Kumar Srivastava, J)

Partha Sarthy, J: I agree.

Spd/-

( Partha Sarthy, J)
AFR/NAFR AFR
CAV DATE 03.05.2019
Uploading Date 02.09.2019
Transmission Date 02.09.2019

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