- (1.) KHEM Karan, J. Pursuant to the orders dated 3-4-2002 passed by a Division Bench (Hon'ble Pradeep Kant and Hon'ble M. A. Khan, JJ.) of this Court at Lucknow in First Appeal No. 17 of 2002 , Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava, filed under sub-sec tion (1) of Section 19 of the Family Courts Act, 1984 (hereinafter referred to as the Act of. 1984), Hon'ble the Chief Justice was pleased to constitute this Full Bench to answer: "whether an appeal under Section 19 of the Family Courts Act, 1984 would lie against an order passed under Section 24 of the Hindu Marriage Act, for grant of interim main tenance?" Factual Background
(2.) THE respondent Jai Prakash Srivastava filed a petition (Original Suit No. 77/87) against his wife (the appel lant) under Section 13 of the Hindu Mar riage Act, 1955 (hereinafter referred to as the Act of 19b5) in a Family Court at Lucknow. THE wife moved one applica tion under Section 24 of the Act of 1955 claiming to herself and to her daughter pendente lite maintenance at the rate of Rs. 80007-a month and litigation expen ses to the tune of Rs. 11, 000/ -. THE learned family Judge passed an order on 16-7-2001 directing the husband to pay pendente lite maintenance at the rate of Rs. 500/- a month from the date of application and also to pay Rs. 2000/-in lump sum towards expenses of the litigation. It appears, the wife was not satisfied with it, so she moved an ap plication under Section 151/152 of the Code of Civil Procedure to enhance the monthly maintenance to the extent of 1/3rd of the salary of the husband. The learned Judge passed an order on 28-7-2002, altering his previous order of 16-7-2001 so as to enhance the amount to the extent of 1/3rd of the salary of the husband but in doing so he subjected the same to the adjustment of any other amount of maintenance, being paid by the husband. The husband moved one ap plication under Order 47 read with Sec tion 151 of the Code of Civil Procedure for reviewing the two orders dated 16-7-2001 and 28-7-2001 inter alia on the grounds that he was not heard; that he was already paying maintenance at the rate of Rs. 450 to his wife and at the rate of Rs. 500/- a month to the daughter, on the basis of a compromise arrived at in another case and that the question of awarding such pendente lite main tenance did not arise as the wife was gainfully employed as a teacher and was getting a handsome amount of Rs. 6000/- a month as salary. The wife op posed this application of the husband. The learned family Judge disposed of this application vide order dated 7-3-2002. By this order dated 7-3-2002 he directed for payment of the pendente lite maintenance in terms of earlier order dated 16-7-2001 but subject to adjustment of the amount being paid pursuant to the orders passed in proceedings under Section 125 of the Code of Criminal Procedure. He also warned the husband, if the amounts were not paid within a week, proceed ings in the divorce suit would be stayed.
(3.) WHEN the said appeal under sub-section (1) of Section 19 of the Act of 1984 came up before the Division Bench, a preliminary objection as to the maintainability of such an appeal was raised on the basis of two Division Bench decisions of this Court at Al lahabad in Smt. Pratima Sen Gupta v. Sajal Sen Gupta, 1998 SCO 732 : 1998 (16) LCD 346) and Ravi Saran Prasad alias Kishore v. Smt. Rashmi Singh, AIR 2001 Allahabad 227 : 2001 (19) LCD 707. The appellant-wife tried to meet this objection by referring to another decision of the Division Bench of this Court at Lucknow in Avadhesh Narain Srivastava v. Archna Srivastava, 1990 LLJ 183 : 1990 (8) LCD 66. Finding the conflict in between the decisions in Avadhesh Narain Srivastava's case (supra) on the one hand and in the cases of Ravi Saran Prasad and Pratima Sen Gupta (supra) on the other, their Lordships directed the Registry to place the relevant papers before Hon'ble the Chief Justice for constituting a larger Bench to resolve the controversy as to whether appeal lies under sub-section (1) of Section 19 of the Act of 1984, against orders under Section 24 of the Act of 1955. Nature and Extent of the conflict in the cases referred to above In Avadhesh Narain Srivastava's case, an appeal was filed under sub section (1) of Section 19 of the Act of 1984, against an order under Section 24 of the Act of 1955. The respondent raised a preliminary objection as to the maintainability of the appeal by saying that order under Section 24 was inter locutory one and so appeal was not maintainable. Their Lordships (Hon'ble Virendra Kumar and Hon'ble S. H. A. Raza, JJ.) overruled it and said: "no doubt, that the impugned order has been passed by the Family Court in the proceedings for restitution of conjugal rights which are pending before it and are yet to be finally disposed of by that Court but that in it self does not mean that the impugned order or any order passed during the pendency of the proceedings will be an order of interim nature or an interlocutory order. Further Sec tion 24, under which the impugned order has been passed, does not provide that the order passed under this section will be an inter locutory order or an interim order. All that the section goes to signify is that the order is to be for maintenance and litigation expenses during the period of pendency of the proceedings before the Family Court. But the maintenance and litigation expenses though for the interim period stood finally deter mined by the Family Court on the application file by the respondent under Section 24 of the Act. The Family Court did not indicate that it was passing the impugned order as an inter locutory order for being confirmed or recalled under a subsequent order in the same proceedings. The order has been passed finally by the Family Court on the question of grant of pendente lite main tenance and litigation expenses. Such an order cannot be considered as an inter locutory order. Same view was taken by Rajasthan High Court in the case of Sanjeev Kumar Pareekv. Shubh Laxmi Paraak, (1989) 1 Divorce & Matrimonial Cases 450. ";