Nilendra Singh Pawar (Mr. ) vs Dr. Smt. Deepti Pawar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 390

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia and Amar Nath (Kesharwani), JJ.
Nilendra Singh Pawar (Mr.) v. Dr. Smt. Deepti Pawar
First Appeal No. 995 of 2022 (Indore): against the order
dated 26.4.2022 passed by the Additional Principal Judge, Family Court, Indore in RCS-HM No. 247/2018;
Decided on 28.11.2022

Advocates:
Shrey Raj Saxena for appellant;
Romesh Dave for respondent.

Headnote:
(1) Hindu Marriage Act, 1955 -- S. 24 -- Family Courts Act, 1984 -- S.19 -- maintainability of appeal -- order of interim maintenance -- proceedings u/s. 24 are independent proceedings
-- order passed is final order -- appeal u/s. 19 of Family Courts Act is maintainable -- whether appeal is liable to be registered as first appeal or miscellaneous appeal, depends upon rules framed by High Court. 2004 (2) MPLJ 101 and AIR 1998 Ori. 173 referred to. [Para 6
(2) Hindu Marriage Act, 1955 -- S.24 -- interim maintenance --quantum -- appellant husband and respondent wife living separately since 2008 -- respondent maintaining herself for last 12 years -- never claimed any maintenance -- highly qualified doctor -- used to travel by flight at least four times a year -- cannot be said that she is surviving only on income of Rs. 7,000/- per month despite such high qualifications -- she has not disclosed earnings and financial status of her parents who are said to have supported her for last ten years -- interim maintenance of Rs. 40,000/- per month is on higher side when appellant is earning Rs. 25,00,000/- per annum and respondent is highly qualified -- reduced to Rs. 10,000/- per month -- litigation expense of Rs. 70,000/- reduced to Rs. 30,000/-. Mat. App. (FC) No. 143 of 2014 (Del.) and Smt. Mamta 2000 (3) MPLJ 100 referred to. [Para 14
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ORDER

1. Heard on I.A. No.3841/2022, which is an application under section 5 of the Limitation Act for condonation of delay. As per the Registry’s report, this appeal is barred by 16 days.

Keeping view of the reasons assigned in the application, which is duly supported by an affidavit, I.A. No.3841/2022 is allowed. Delay in filing the appeal is hereby condoned.

The appellant / husband has filed this appeal under section 19(1) of the Family Courts Act, 1984 against the order dated 26.4.2022, whereby the Additional Principal Judge, Family Court, Indore has awarded interim maintenance of Rs.40,000/- per month and Rs.70,000/- as litigation expenses in favour of the respondent/wife.

The decision on preliminary objection :

2. Shri Romesh Dave, learned counsel appearing for the respondent raised a preliminary objection regarding the maintainability of this appeal filed under section 19 of the Family Court Act. Shri Dave, learned counsel submits that the impugned order has been passed under section 24 of the Hindu Marriage Act which is in the nature of interlocutory order. The appeal under section 19 of the Family Courts Act lies only against the judgment or order not being an interim order. The petitioner is having remedy to file a writ petition under Article 226 of the Constitution of India as even the civil revision is also barred in view of the law laid down by this Court in the cases of Aurna Choudhary v. Sudhakar Choudhary reported in 2004 (2) MPLJ 101 and Swarna Parva Tripathy & Another v. Dibyasingha Tripathy & Another reported in AIR 1998 ORI 173.

3. Shri Shrey Raj Saxena, learned counsel for the appellant submits that the proceedings initiated under section 24 of the Hindu Marriage Act seeking interim maintenance and litigation expenses have come to an end, therefore, this order is final in nature, hence, an appeal is maintainable under section 19 of the Family Courts Act.

4. In order to appreciate the aforesaid contention, section 19 of the Family Courts Act is reproduced below :--

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 parties2[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 (59 of 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 preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.

5. It is correct that the appeal lies against the judgment and the order passed by the Family Court, but if the order is passed on an interlocutory application against which appeal would not lie under section 19 of the Family Court Act. But the issue which requires consideration is whether the order passed on the application filed under sect

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