IN THE HIGH COURT OF UTTARAKHAND AT
Crl. Misc. Application (C-482) No. 434 of 2018
Ashu Dhiman …….Applicant
Smt. Jyoti Dhiman ….Respondent
Mr. Gaurav Singh, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 435 of 2018
Brijesh Joshi …….Applicant
Smt. Beena Joshi ….Respondent
Mr. Dharmendra Bharthwal, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 352 of 2018
Sanawwar Sher Khan …….Applicant
Smt. Shabana Alias Kamar Jahan ….Respondent
Mr. Lalit Sharma, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 483 of 2018
Rajeev Sharma …….Applicant
Smt. Manju Sharma & Another ….Respondents
Mr. Ghanshyam Joshi, Advocate for the applicant.
Mr. S.S. Adhikari, A.G.A. with Mr. P.S. Uniyal, Brief Holder for the State.
Crl. Misc. Application (C-482) No. 492 of 2018
Manish Rahul …….Applicant
Smt. Nitika ….Respondent
Ms. Meenakshi Parihar, Advocate for the applicant.
Ms. Anjali Noliyal, Advocate for the respondent.
Crl. Misc. Application (C-482) No. 496 of 2018
Smt. Anshu & Others …….Applicants
Jitendra Kumar ….Respondent
Mr. Pankaj Miglani, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 510 of 2018
Kuldeep Kumar …….Applicant
Smt. Kamal Jeet Kaur & Another ….Respondents
Mr. Rajendra Singh Azad and Mr. Saurav Adhikari, Advocates for the applicant.
Crl. Misc. Application (C-482) No. 518 of 2018
Nikhil Sangal …….Applicant
Smt. Saloni Agrawal & Another ….Respondents
Mr. Lalit Sharma, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 575 of 2018
Rajat Kumar Mahalwala …….Applicant
State of Uttarakhand & Others ….Respondents
Mr. Girish Chandra Lakhchaura, Advocate for the applicant.
Mr. S.S. Adhikari, A.G.A. with Mr. P.S. Uniyal, Brief Holder for the State.
Crl. Misc. Application (C-482) No. 598 of 2018
Sachin Sharma …….Applicant
Smt. Pankila & Another ….Respondents
Mr. Deepak Sharma, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 672 of 2018
Sanjeev Gupta …….Applicant
Smt. Chanchal Gupta ….Respondent
Mr. Vipul Sharma, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 684 of 2018
Mohd. Naved …….Applicant
State of Uttarakhand & Others ….Respondents
Mr. Bhuwan Bhatt, Advocate for the applicant.
Mr. S.S. Adhikari, A.G.A. with Mr. P.S. Uniyal, Brief Holder for the State.
Crl. Misc. Application (C-482) No. 769 of 2018
Smt. Neeru …….Applicant
Pankaj Sharma ….Respondent
Mr. Narendra Bali, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 794 of 2018
Umar Farukh …….Applicant
Smt. Taiyaba ….Respondent
Mr. Rajveer Singh, Advocate for the applicant.
Crl. Misc. Application (C-482) No. 1516 of 2017
Smt. Sanchi Alias Manisha …….Applicant
Amit Kumar ….Respondent
Mr. Rajendra Singh Azad, Advocate for the applicant.
Mr. Pankaj Miglani, Advocate for the respondent.
Crl. Misc. Application (C-482) No. 1711 of 2017
Amit Kumar …….Applicant
Smt. Sanchi Alias Manisha ….Respondent
Mr. Pankaj Miglani, Advocate for the applicant.
Hon’ble Lok Pal Singh, J.
The aforementioned criminal misc. applications have been filed under Section 482 of the Cr.P.C. against orders passed by respective Family Court Judges, on interim maintenance applications filed in pending proceedings under Section 125 of the Code. Out of the aforementioned criminal misc. applications, filed under Section 482 of the Cr.P.C., some are filed against rejection of interim maintenance applications and some are filed against allowing of the interim maintenance applications, all passed under Section 125 of Cr.P.C. Upon hearing the bunch of aforementioned C-482 petitions, Co- ordinate Bench of this Court has observed as to whether the C-482 petitions in this regard are maintainable or not, and clubbed the petitions.
2. The core issue before this Court is – as to whether an application under Section 482 of Cr.P.C. or a criminal revision under Section 397 of Cr.P.C. is maintainable?
3. The Parliament has enacted the Family Courts Act, 1984 (Act No. 66 of 1984) to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating the marriage and family affairs and matters connected therewith.
4. Statement of objects and reasons of the Family Courts Act, 1984 (hereinafter referred to as ‘the Act’) are extracted herein under:
“Statement of Objects and Reasons.-
Several associations of women, other organizations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59 report (1974) had also stress th that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.
2. The Bill inter alia, seeks to:-
(a) provide for establishment of Family Courts by the State Government;
(b) make it obligatory on the State Governments to set up a Family court in every city or town with a population exceeding on million;
(c) enable the State Government s to set up, such courts in areas other than those specified in
(d) exclusively provide within the jurisdiction of the family Courts the matters relating to:-
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;
(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and the rigid rules of procedure shall not apply;
(f) provide for the association of social welfare agencies, counselors, etc., during conciliation stage and also to secure the services of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae;
(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal effectually with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.”
5. Section 2 of the Act is definition clause, which is extracted hereunder:
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) “Judge” means the Judge or, as the case may be, the Principal Judge, Additional Principal Judge or other Judge of a Family Court;
(b) “notification” means a notification published in the Official Gazette;
(c) “prescribed” means prescribed by rules made under this Act;
(d) “Family Court” means a Family Court established under Section 3;
(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.”
6. Chapter V of the Act deals with the provisions of appeals and revisions. Section 19 is extracted here-in-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 or 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 sub-section shall apply to any appeal pending before a High Court or an 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].
(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 an 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.
7. Chapter IX the Code of Criminal Procedure is in regard to the maintenance to wives, children and parents. The proviso to sub-
section (1) of Section 125 of the Code makes provision for interim maintenance. For kind reference the same is extracted hereunder:
“125. Order for maintenance of wives, children and parents.-(1) If any person leaving sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***], as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of’ sufficient means.
[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person] Explanation. -For the purposes of this Chapter.
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875), is deemed not to have attained his majority;
(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s [ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”
8. Proviso to sub Section (1) of Section 125 of Cr.P.C. stipulates for making a monthly allowance by a person for the maintenance for his wife, who is unable to maintain herself; minor child; disabled children and parents and the expenses of such proceedings during pending proceedings, which the Magistrate considers reasonable. Where the Family Courts have been established under the Family Courts Act, the power of the Magistrate under Section 125 of Cr.P.C. is to the exercised by the Family Court.
9. The proviso to sub Section (4) of Section 19 of the Family Courts Act is a revisional jurisdiction against an order not being an interlocutory order under Chapter IX of Cr.P.C.
10. Learned counsel for the applicant(s) would submit that being an interlocutory order while allowing or rejecting an application for interim maintenance under Proviso to sub Section (1) of Section 125 of Cr.P.C., an application under Section 482 of Cr.P.C. would be maintainable and revision does not lie against such an order.
11. Per contra, learned counsel for the respondent(s) would submit that against an order allowing or rejecting the interim maintenance application under Proviso to sub section (1) of Section 125 of the Cr.P.C., criminal misc. application under Section 482 of the Cr.P.C. is not maintainable. A Co-ordinate Bench of this Court has posed a question as to whether the criminal misc. application under Section 482 of Cr.P.C. would be maintainable?
12. Upon hearing the learned counsel for the parties it is necessary for this Court to find out and interpret the exact meaning of word ‘interlocutory order’. An interlocutory order has not been defined either in the Code of Criminal Procedure or in the Code the Civil Procedure.
13. The definition of word ‘interlocutory’ in view of the definition in Black Law Dictionary is not explanatory in nature. The word ‘interlocutory order’ has elaborately been defined in Halsbury’s Laws of England, Volume 22 of the third edition at page 742. Para 1606 of the same reads as under:
“1606. Final or interlocutory. No definition is given in the Judicature Acts, or the orders and rules thereunder, of the terms “final” or “interlocutory”, and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.”
14. The Hon’ble Apex Court has interpreted and elaborately discussed the definition of interlocutory order in the case of Mohit alias Sonu and another vs State of Uttar Pradesh and another, (2013) 7 SCC 789, wherein it has been held that an order which substantially affects rights of an accused or party or decides certain rights of the parties during pending proceedings is not an interlocutory order. The relevant paragraphs of the said judgment are excerpted hereunder:
“25. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case, before the trial court the complainant’s application under Section 319 of Cr.P.C. was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath’s case, (1977) 4 SCC 137, an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C.
28. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.
32. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to.”
15. Hon’ble Apex Court in the case of Madhu Limaye vs The State of Maharashtra, (1977) 4 SCC 551, has interpreted the scope of revision under Section 397(2) of Cr.P.C. and while interpreting the word ‘interlocutory order’ and the powers of the High Court under Section 397(2) and 482 of the Cr.P.C., has held that an order which adjudicates / determines the rights of the parties to some extent cannot be said to be an interlocutory order and having considered the definition of ‘interlocutory order’ gathered from the Halsbury’s Laws of England has further held that in such contingency a revision is maintainable and remitted the matter to the High Court to decide the revision on merits. The relevant paragraphs of the judgment (supra) are extracted hereunder:
“13. In S. Kuppuswami Rao v. The King, AIR 1949 FC 1, Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner, (1891) 1 QB 734:
“If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”
To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J.
Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a “final order” within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words ‘interlocutory order” occurring in section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson, (1876-77) 2 AC 743 and R. M. D. Chamarbaugwalla v. The Union of India, AIR 1957 SC 628 that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression “interlocutory order” as invariably being converse of the words “final order”. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami’s case (supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well- known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course.
14. In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania C.J. in Kuppuswami’s case (supra) at page 187 by quoting a few words from Sir George Lowndes in the case of V.M. Abdul Rahman Vs. D. K. Cassim and Sons, AIR 1933 PC 58. The learned Law Lord said with reference to the order under consideration in that case :
“The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive, and provided for its trial in the ordinary way.”
Many a time a question arose in India as to what is the exact meaning of the phrase “case decided” occurring in section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd., (1969) 2 SCC 201, it has been pointed out :
“A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy :”
We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133(1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as a preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit-may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression ‘interlocutory order’ occurring in section 397(2).”
16. In view of the dictionary meaning of interlocutory order as defined in Halsbury’s Law of England, Volume 22 of the third edition at page 742, interpreted by the Hon’ble Apex Court in the judgment supra, an order which adjudicates the rights of the parties on rejecting or allowing the interim maintenance application during proceedings cannot be said to be an interlocutory order.
17. In view of the definition of the interlocutory order and the ratio of the judgment supra, this Court is of the view that an order passed under Proviso to sub section (1) of Section 125 of Cr.P.C. rejecting or allowing an application for maintenance, pending proceedings, is not an interlocutory order which adjudicates the rights of the parties to some extent. The revision under Section 397 of Cr.P.C. is maintainable. It has been held that such an order is amenable to revisional jurisdiction of this Court. The powers of High Court under Section 482 of Cr.P.C. are inherent in nature and could be exercised where statutory remedy of appeal and revision under the Cr.P.C. is not available. Thus, in view of the findings recorded above that revision against such an order is maintainable, an application under Section 482 of Cr.P.C. would not be maintainable. The core issue framed by this Court to deal with the controversy is answered accordingly. Since the criminal misc. applications filed by the applicant(s) under Section 482 of Cr.P.C. are not maintainable, the applicant(s) would be at liberty to avail the remedy of filing revision, if so advised.
18. In view of the above, the aforementioned criminal misc. applications under Section 482 of Cr.P.C. stands disposed of.
19. Let a copy each of this judgment be kept in the files of connected C-482 petitions.
(Lok Pal Singh, J.) 15.11.2018