Judgment:
Binod Kumar Roy and U. S. Tripathi, JJ.
1. In this appeal under Section 19(1) of the Family Courts Act, 1984. the husband assails validity of an order dated 5th March. 2001 passed by Sri R. B. Pandey. Judge, Family Court, Agra in Suit No. 446 of 1998 allowing the application dated 3rd May. 1999 filed by the Respondent-wife under Sections 24/26 of the Hindu Marriage Act. 1955 commanding the appellant to pay a sum of Rs. 1,200 (Rs. 800 per month for her and Rs. 400 per month for their son) for maintenance with effect from the date of her application, besides a lump sum of Rs. 1.500 towards litigation expenses.
2. The office has raised an objection that in view of Section 19(5) of the Family Courts Act. this appeal is not maintainable.
3. Sri Anupam Kulshrestha,learned counsel for the appellant,contests the objectionaforementioned by submitting thattrue it is that the impugned order waspassed under Section 24 of the HinduMarriage Act but in view of theDivision Bench decision of theMadhya Pradesh High Court inRaghvendra Singh Choudhary v. Smt.Seema Bai, AIR 1989 MP 259. holding that an appeal will lie against an interlocutory order, if it is a judgment and that the order passed under Section 24 of the Hindu Marriage Actis a judgment as it decides thequestion of maintenance during thependency of the suit, therefore, thereis a final adjudication.
4. Having regard to the provisions as contained in Sections 28 of the Hindu Marriage Act. 1955 and Section 19(1) and (5) of the Family Courts Act, 1984 and the object of this Act as stated in the Bill that only one appeal shall lie and that too before the High Court, we respectfully differ from the ratio laid down by the Madhya Pradesh High Court which in its turn has placed reliance on a Bombay High Court judgment in Dinesh Gijubhai Mehta v.Smt. Usha Dinesh Mehta, AIR 1979 Bom 173 and the Hon'ble Supreme Court's decision In Shah Babaulal Khimji v. Janyaben D. Kania, AIR 1981 SC 1786. the last one is clearly distinguishable.
5. Section 24 of the Hindu Marriage Act. under which the order in question has been passed, readsthus :
'24. 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.'
6. It is well settled that appeal and/or revision is a creature of statute. Section 28 of the Act aforementioned reads thus :
'28. Appeals from decrees and orders.--(1) All decree made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceedings under this Act under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Courtgiven in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.'
Apparently, the Legislature has excluded preference of an appealunder the Act aforementioned against an order passed under Section 24 of the Act.
7. The Bill for enactment of the Family Courts Act, inter alia, stated providing of only one right of appeal which shall lie to the High Court and the Parliament enacted the Family Courts Act in 1984, Section 19 of which Act reads thus :
'19. Appeal.--(1) Save as provided In sub-section 12} 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 or from an order passed under Chapter IX of the Code of Criminal Procedure. 1973 (2 of 1974) :
Provided that nothing in this subjection shall apply to any appeal pending before the High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 12 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 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.'
A conjoint reading of sub-section (1) and sub-section (5) makes us crystal clear that only one appeal lies to the High Court ; that no appeal or revision lies except as provided under sub-section (1) from any judgment,order or decree of a Family Court ; and further that no appeal lies against such judgment or order which is interlocutory. It cannot be said that the Legislature has created an appellate forum in 1984 against the orders passed under Section 24 of the Hindu Marriage Act nullifying Section 28 of the Act contrary to the object of enactment of the Act as stated in the Bill.
8. Thus, we uphold the objection of the Stamp Reporter that this appeal is not maintainable under Section 19(1) of the Family Courts Act. 1984 and dismiss it as not maintainable.
9. It is needless to clarify that it will be open for a litigant like the appellant to knock the doors of this Court under Article 226 and/or Article 227 of the Constitution of India provided a suitable case for interference is made out against an order passed under Section 24 of the Hindu Marriage Act.