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Shailendra vs Smt.Deepika on 18 May, 2018

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HIGH COURT OF MADHYA PRADESH
W.P. No.6108/2017
(Shailendra Vs. Smt. Deepika)
Indore, Dated: 18/5/2018
Shri Laljee Gaur, learned counsel for the petitioner.
Ms. Archana Maheshwari, learned counsel for the
respondent has raised a preliminary objection that the writ

petition under Article 227 of the Constitution is not maintainable
against the impugned order dated 22/8/2017.

Having examined the record, it is noticed that by the
impugned order, an application under Section 24 of the Hindu
Marriage Act has been decided by the Family Court, Indore and
against such an order, petitioner has remedy of filing of appeal
under Section 19 of the Family Court Act.

The Division Bench in the matter of Prafull Kumar Vs.
Smt. Asha in FA No.764/2015 has held as under:-

“Shri Anil Kumar Jain, learned counsel for the
appellant.

Shri Brajesh Garg, learned counsel for
respondent.

Heard on I.A.No.6480/2016, an application for
maintainability of appeal under Section 19 (4) 5 of
Family Courts Act.

2. Brief facts of the case are that against an order
passed by the Family Court, Ratlam granting ‘Pendenti-
lite’ maintenance @ of Rs.15,000/- per month to the
respondent / wife has been challenged in this first appeal
filed by the husband under Section 19 (4) of the Family
Courts Act, 1984 on the ground that a judgment as it
decides the question of maintainance during the
pendency of the suit and, therefore, there is final
adjudication so far as this question is concerned and an
appeal lies against such an order.

3. Learned counsel for the appellant submits that
‘Pendentilite’ maintenance under Section 24 of the Hindu
Marriage Act, 1955, raises controversy of the suit and
hence the appeal lies against such an order.

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4. To support the aforesaid, he has drawn our
attention to full Bench decision of Rajesh Shukla V/s.
Smt. Meena w/o. Rajesh Shukla Anr. reported as
2005 (2) M.P.L.J] 483, full Bench decision of Allahabad
High Court in the case of Kiran Bala Shrivastava V/s.
Jai Prakash Srivastava reported as Laws (ALL)-2004-
9-141, Division Bench decision of Gwalior Bench of this
court in the case of Aakansha Shrivastava V/s.
Virendra Shrivastava Anr reported as 2010 (3) MPLJ
151, Division Bench decision of Uttarakhand High Court
in the case of Rahul Samrat Tandon V/s. Smt. Neeru
Tandon reported as AIR 2010 Uttarakhand 67, Division
Bench decision of M.P. High Court in the case of
Raghvendra Singh Choudhary V/s. Smt. Seema Bai
reported as AIR 1989 M.P. 259 and to the decision of
the Rajasthan High Court in the case of Sanjeev Kumar
Pareek V/s. Shubh Laxmi Pareek reported as Laws
(Raj)- 1988-12-13 and submitted that an order passed
under Section 24 cannot be termed as interlocutory
order. Para 15 and 17 of Rahul Samrat Tandon V/s.
Smt. Neeru Tandon (supra) wherein the Division Bench
of Uttarakhand High court has held that the order fixing
maintenance pendenti lite in divorce proceeding is final
order and therefore, a judgment, the order is appealable
under Section 19 of the Family Courts Act following full
Bench judgment of Allahabad High Court concluded as
follows in para 15 and 17 reads as under :-

“15. This court is of a considered view that an
order granted by the court below under section
24 of the Hindu marriage act fixing
maintenance pendente lite in the divorce
proceedings is an order having the quality of
finality. It may have nothing to do with the
ultimate order, which may be passed by the
court in a matter relating to Section 13 of the
Hindu Marriage Act. In fact, it is a separate
proceeding within a proceeding. Hence, the
order passed under Section 24 of the 1955 Act
cannot simply be called an order of an
interlocutory nature, as it is a judgment.
“17. The present appeal has been filed by the
husband challenging the order of maintenance
pendente lite under section 24 of the Act of
1955, yet we are concerned with the larger
impact of a judgment in such cases, where
primarily the issue of maintenance is crucial to
a party to a litigation. The Full Bench of
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Allahabad High Court, referred above, after
discussing all the relevant law, including the
law cited by the learned counsel for the
respondent came to the conclusion that an
appeal under Section 19 (1) of the Act of 1984
is maintainable against an order passed under
Section 24 of the Act of 1955. We are in
complete agreement with the observations of
the Full Bench of the Allahabad High Court,
and we feel that it is necessary that a broad
meaning to the word “judgment” must be
assigned and therefore we hold that the
impugned order dated 20.3.2010 was in the
nature of a “judgment” and the instant Special
Appeal preferred by the appellant is
maintainable, under Section 19 (1) of the
Family Courts Act, 1984.”

5. Per contra, Shri Brajesh Garg, learned counsel
for the respondent has submitted that such an order is a
interlocutory order and no appeal will lies against an
interlocutory appeal. To support the contention he has
placed reliance on the decision of Rajasthan High Court
in the case of Mahesh Bhardwaj V/s. Smt. Smita
Bhardwaj reported as AIR 1995 Rajasthan 47, decision
of Patna High court in the case of Usha Kumari V/s.
Principal Judge, Family Court Ors . eported as AIR
1998 Patna 50 , decision of High court of Karnataka in
the case of T.V. Satanarayana V/s. Subba Aruna
Meenakshi reported as Laws (Kar)-1988-2-22, Bombay
High court decision in the case of Sunil Hansraj Gupta
V/s. Payal Sunil Gupta, reported as AIR 1991 Bombay
423, full Bench decision of High court of Orissa in the
case of Swarna Prava Tripathy Anr. V/s.
Dibyansingha Tripathy Anr. reported as AIR 1998
Orissa 173 and Division Bench decision of Indore Bench
in the case of Aruna Choudhary V/s. Sudhakar
Choudhary, reported as 2004 (2) MPLJ] 101 wherein
the Division Bench has held that under Section 19(5) of
the Act, the order of interim maintenance under Sections
24 and 25 of Hindu Marriage Act, would be treated as
interlocutory order, therefore, against such an order
neither appeal lies nor revision. The only remedy to an
aggrieved party to such a interlocutory order to
challenge the same by filing a writ petition under Article
227 of the Constitution of India.

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6. The full Bench of this court in the case of
Rajesh hukla V/s. Smt. Meena w/o. Rajesh Shukla
Anr. (supra) wherein the question was whether against
the order passed by the Family Court in an application
under Section 125 of the Code while exercising
jurisdiction under Chapter IX of the Code, revision under
sub-section (4) of Section 19 of the Act should be
registered as civil revision or criminal revision or revision
petition (Family) ? In that case proceedings are arising
out of the Criminal Procedure Code, 1974, thus
essentially final order so passed will be revisable under
Section 19(4) of the Act of criminal revision. The full
Bench has held that the since power of Judicial
Magistrate First Class have been exercised by the
Family Court for deciding application under Section 125
of the Code, revision filed against the said order be
registered as criminal revision and held that the correct
law is not been laid down in the case of Aruna
Choudhary V/s. Sudhakar Choudhary (supra).

7. On due consideration of the arguments of the
learned counsel for the parties, so also the decision of
the Division bench of this court in the case of
Raghvendra Singh Choudhary V/s. Smt. Seema Bai
(supra) wherein, the Division Bench has held that the
order passed under Section 24 of the Hindu Marriage
Act is judgment, as it decides the question of
maintainability during the pendency of the suit and the
same view has been taken by the Gwalior Bench in the
case of Aakansha Shrivastava V/s. Virendra
Shrivastava Anr (supra), we reject the preliminary
objection raised by the respondent regarding
maintainability of appeal and held that the appeal filed
against the order passed in a proceeding under Section
24 of the Hindu Marriage Act, 1955 cannot be
considered as a interlocutory order. The order for interim
maintenance affect the rights of the parties substantially
and thus, it cannot be treated as interlocutory order.
Appeal against the said order is maintainable.

8. For these reasons, I.A.No. 6480/2016, is hereby
rejected.”

Since, the petitioner has remedy of filing an appeal
against the impugned order, therefore, no case is made out to
entertain the writ petition which is accordingly dismissed,
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however with liberty to the petitioner to challenge the impugned
order in appeal.

Certified copy of the impugned order be returned to
learned counsel for the petitioner on placing on record
photocopy of the same.

C.c. as per rules.

(Prakash Shrivastava)
Judge
krjoshi

Digitally signed by KHEMRAJ
JOSHI
Date: 2018.05.19 12:00:36 +05’30’

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