Source: Madras High Court

Why in News?

Recently, the Madras High Court in the matter of S Menaka v. KSK Nepolian Socraties, has held that the orders of interim maintenance passed under Section 24 of the Hindu Marriage Act, 1955 (HMA) is interlocutory in nature and can only be reviewed and not appealed.

What was the Background of S Menaka v. KSK Nepolian Socraties Case?

• The High Court of Madras was hearing a batch of petitions during which the question for discussion arose of whether statutory appeals under Section 19 of the Family Courts Act, 1984 are maintainable as against the impugned order owing to the expression “not being an interlocutory order”, in sub-section (1) of Section 19 of the Family Courts Act 1984.
• This question was dovetailed with another question of whether a statutory appeal under Section 28 of the HMA will lie against an order of interim maintenance/pendente lite maintenance made under Section 24 of HMA.
• The High Court gave liberty to the parties to seek withdrawal of the same and file revision petitions with respect to the appeals already pending against orders of interim maintenance, the court gave liberty.

What were the Court’s Observations?

• The bench comprising of Justices M Sundar and Govindarajan Thilakavadi observed that the orders of interim maintenance passed under Section 24 of HMA are only interlocutory orders and thus, an appeal against such orders will not lie either under Section 28 of the HMA or under Section 19 of the Family Courts Act, 1984.
• The Court further added that a revision against the order of interim maintenance is maintainable under Article 227 of the Constitution of India, 1950 (COI) irrespective of whether it was made by a regular civil court or a Family Court.

What are the Relevant Legal Provisions Involved in it?

Section 24 of HMA

• This Section deals with the maintenance pendente lite and expenses of proceedings. It states that -

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.

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

Section 28 of HMA

• This Section deals with appeals from decrees and orders. It states that-

(1) All decrees 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 proceeding 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 court given 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 ninety days from the date of the decree or order.

Section 19 of Family Courts Act, 1984

• This Section deals with appeal. It states that -

(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure,1908 or in the Code of Criminal Procedure, 1973 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.

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 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 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.