RAHUL SAMRAT TANDON vs NEERU TANDON

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(UK) 321

2010 (2) UAD 621
UTTARAKHAND HIGH COURT
Hon’ble Mr. Chief Justice J.S. Khehar and
Hon’ble Mr. Justice Sudhanshu Dhulia
AO No. 113 of 2010
RAHUL SAMRAT TANDON – Appellant
Versus
SMT. NEERU TANDON – Respondent
Decided on : 31.05.2010

For the Appellant :Mr. Shobhit Saharia, Advocate
For the Respondent:Mr. Aditya Singh and Mr. Neeraj Garg, Advocates

Headnote:(A) Hindu Marriage Act, 1955, Secs. 24 & 28 — Under the unamended Section 28 — An appeal was maintainable u/s 28 against all decrees and orders specifically mentioned in the Act — Which included the order u/s 24 of the Act of 1955 — However, a bare perusal of the amended Section 28 of the Act of 1955 as it now stands makes only a decree by the Court appealable — And there is no mention of orders as it stood earlier under the old unamended Section 28 — Therefore, for the purposes of Sec 28 of the Act of 1955, appeal is not maintainable against an order passed u/S 24 of the Act of 1955. (Para 8)
       (B) Hindu Marriage Act, 1955, Secs. 19 & 24 and Family Courts Act, 1984, Sec. 19 — An order passed u/s 24 of 1955 Act is not open to an appeal u/s 19 of 1984 Act as the order is interlocutory in nature — That an order passed by a Family Court u/s 24 of 1955 Act granting maintenance pendente lite proceeding is not an interlocutory order as it gives a finality to the issue raised in an application filed u/s 24 of 1955 Act — Although such an order technically may come under the definition of an interlocutory order — Yet it has all the trappings of a
       "judgment" as it decides the issue finally between the parties — And since it is a judgment, it is appealable u/s 19(1) and would not be ousted from the jurisdiction u/s 19(1) of 1984 Act — Merely on the basis of its being an interlocutory order, which it is not.
        (Paras 10 to 15)
       ¼v½ fgUnq fookg vf/kfu;e] 1955] /kkjk 24 vkSj 28 ds vUrxZr vla'kksf/kr /kkjk 28 & vf/kfu;e esa fufnZ"V :i ls n'kkZ;s x;s lHkh vkns'kksa vkSj fMfxz;ksa ds fo#) dksbZ Hkh vihy /kkjk 28 ds vUrxZr iks"k.kh; Fkh ftl esa /kkjk 24 vf/kfu;e 1955 Hkh lfEefyr Fkh & rFkkfi la'kksf/kr /kkjk 28 vf/kfu;e 1955 ds voyksdu ls tSlh fd vc fLFkfr gS dsoy U;k;ky; dh fMdh dks gh vihyh; djkj nsrh gS vkSj mlesa fdlh vkns'k dk mYys[k ugha gS tSlk fd iqjkuh vla'kksf/kr /kkjk esa Fkk & blfy, /kkjk 28 vf/kfu;e 1955 ds okLrs /kkjk 24 vf/kfu;e 1955 ds fo#) vihy iks"k.kh; ugha gSA

        ¼izLrj 8½

       ¼c½ fgUnq fookg vf/kfu;e] 1955] /kkjk 19 vkSj 24 vkSj ifjokj U;k;ky; vf/kfu;e] 1984] /kkjk 19 & /kkjk 24 vf/kfu;e 1955 ds vUrxZr ikfjr vkns'k ds fo#) /kkjk 19 vf/kfu;e 1984 ds vUrxZr dksbZ vihy nk;j ugha dh tk ldrh ih MCY;w fd vkns'k var%dkyhu izdfr dk gksrk gS & ih MCY;w fd ifjokj U;k;ky; }kjk /kkjk 24 vf/kfu;e 1955 ds vUrxZr okn dkyhu Hkj.k iks"k.k ds okLrs fd;k x;k vkns'k var%dkyhu vkns'k ugha gksrk D;ksafd ;g okn fcUnq dks vafre :i] tks izkFkZuk i= esa fn;k x;k gS] ns nsrk gS] tks /kkjk 24 vf/kfu;e 1955 ds v/khu nk;j dh tkrh gS & ;|fi ,slk vkns'k rduhdh :i ls ,d var%dkyhu vkns'k dh ifjHkk"kk esa vkrk gS rks Hkh bl esa fu.kZ; ds os lHkh rF; ftu ij okn fcUnq i{kdkjksa ds e/; vafre :i ls fuf.kZr fd;k tkrk gS ekStwn gksrs gSa & vkSj ih MCY;w fd ;g ,d fu.kZ; gS rks ;g /kkjk 19¼1½ ds vUrxZr vihyh; gS vkSj /kkjk 19¼1½ vf/kfu;e 1984 ds vf/kdkj {ks= ls ckgj blfy, ugha fd;k tk ldrk fd ;g var%dkyhu vkns'k gS] tks ;g ugha gSA ¼izLrj 10 ls 15½

JUDGMENT

[Per : Hon’ble Sudhanshu Dhulia, J.]

1. The present appeal has been filed by the appellant under Section 19 of the Family Courts Act, 1984 (from hereinafter referred to as the Act of 1984) against an order dated 20.3.2010 passed by the Judge, Family Court, Dehradun in Misc. Case No. 123 of 2008, on an application under Section 24 of the Hindu Marriage Act, 1955 (from hereinafter referred to as the Act of 1955), whereby an amount of Rs. 10,000/- per month has been ordered to be given to the wife of the appellant under Section 24 of 1955 Act as maintenance pendent elite proceeding under Section 13 of 1955 Act, instituted by the husband, who is the appellant before this Court.

2. All the same, before this case could be heard on merits, the learned counsel for the respondent/defendant has raised a preliminary objection regarding the maintainability of the present Appeal under Section 19 of 1984 Act. The short contention of the respondent before this Court is that an appeal can be filed under Section 19 of 1984 Act only against a judgment, or an order which is not of an interlocutory nature, but since the order under challenge dated 20.3.2010 has been passed by the Family Court on an application moved by the respondent under Section 24 of 1955 Act for maintenance in pendent elite of the proceeding, the orders passed therein is essentially of an interlocutory nature and since Section 19(1) of 1984 Act specifically bars an appeal against an interlocutory order, the present appeal is not maintainable.

3. The counsel for the appellant on the other hand submits that the present appeal under Section 19(1) of Act, 1984 before this Court is not against an interlocutory order, but it is against a judgment or at least against an order which has all the trappings of a judgment, therefore, it cannot be called an “interlocutory order” and therefore, asserts that the objections raised by the respondent are entirely misconceived.

4. Before this Court adjudicates upon the merits of the case, since a preliminary objection on a pure question of law has been raised before this Court, it is necessary that this Court first deals with this preliminary objection, before proceeding on merits of the case.

5. Section 19(1) of the 1984 Act reads 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.”

6. The counsel for the respondent in support of his contention has relied upon a catena of judgments passed by various High Courts as well as by the Supreme Court. The first three cases relied upon by the respondent are Sunil Hansraj Gupta vs. Payal Sunil Gupta AIR 1991 Bombay 423, Radheshyam Gupta vs. Smt. Laxmi Bai AIR 1977 Madhya Pradesh 271 as well as Gurbaksh Singh Vs. Smt. Taran Jit AIR 1977 Himachal Pradesh 66. In all the three cases cited above, an order was passed under Section 24 of 1955 Act and the question before the Courts was as to whether in such a contingency an appeal under Section 28 of 1955 Act is maintainable? Therefore, what has been examined in all these cases is the maintainability of such an order under Section 28 of 1955 Act. Sections 24 and 28 of 1955 Act, read as under :-

“24. Maintenance pendent elite 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,

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Judicial Analysis

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2010 Supreme(UK) 321

2010 (2) UAD 621UTTARAKHAND HIGH COURTHon’ble Mr. Chief Justice J.S. Khehar and Hon’ble Mr. Justice Sudhanshu DhuliaAO No. 113 of 2010RAHUL SAMRAT TANDON – AppellantVersusSMT. NEERU TANDON – Respondent Decided on : 31.05.2010

Cases Referred (3)

Judicial Analysis

2010 (2) UAD 621
UTTARAKHAND HIGH COURT
Hon’ble Mr. Chief Justice J.S. Khehar and
Hon’ble Mr. Justice Sudhanshu Dhulia
AO No. 113 of 2010
RAHUL SAMRAT TANDON – Appellant
Versus
SMT. NEERU TANDON – Respondent
Decided on : 31.05.2010