No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.6740 of 2016
Arising Out of PS. Case No.- Year-1111 Thana- District-
======================================================
Dr. Dilip Kumar @ Dr. Dilip Kumar Sharma @ Dilip Sharma, Son of Late
Shiv Pujan Prasad, R/o-Keshopur Grudwara Road, P.S.-Jamalpur, District-
Munger.
... ... Petitioner/s
Versus
1.The State of Bihar.
2.Swati Omi, Wife of Dr. Dilip Kumar Sharma @ Dr. Dilip Kumar of Chhoti
Kelawari Anand Lane, P.S.-Kotwali, District-Munger.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s: Mr. Ansul, Advocate (Amicus)
Mr. Rajesh Kumar Singh, Sr. Advocate (Amicus)
Ms. Soni Shrivastava, Advocate (Amicus)
For the State : Mr. Parmeshwar Mehta, APP
Mr. Choubey Jawahar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE HARISH KUMAR
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 22-11-2024
In the case of marital discord of one Dr.
Dilip Kumar @ Dr. Dilip Kumar Sharma @ Dilip Sharma,
the Principal Judge, Family Court, Munger in Maintenance
Case No. 153 of 2014 directed him to pay Rs. 15,000/-
per month as an ad interim maintenance to his
wife/opposite party No. 2 as also his children. There was
a further direction to pay Rs. 10,000/- as lump sum
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amount towards the cost of expenses and Rs. 1,000/- for
each date in the proceeding as the recurring cost of
litigation.
2. Dr. Dilip Kumar challenged the afore-
noted order passed by the Family Court under Section
482 of the Code of Criminal Procedure, 1973 (in short
the Cr.P.C.).
3. A question of maintainability was raised
by opposite party No. 2 on the strength of a judgment of
Division Bench of this Court in Md. Akil Ahmad Vs. The
State of Bihar and Another : 2016 (4) PLJR 968.
4. In the afore-noted judgment, after going
through the scheme of the Family Courts Act, 1984 (in
short the Act of 1984) and the provisions contained in
Chapter IX of the Cr.P.C., the Division Bench had
conclusively held that from a conjoint reading of Sections
10 and 20 of the Act of 1984, the inherent power of the
High Court under Section 482 Cr.P.C. could not be
invoked against the order granting interim maintenance
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under Section 125 Cr.P.C. in as much as the applicability
of the provisions of Cr.P.C. is confined only before the
Family Courts under the proceedings of Chapter IX of the
Code. It also held that since an order granting interim
maintenance is an interlocutory order, therefore no
challenge could be made against such an order under
Section 19 (4) of the Act of 1984.
5. The Division Bench of this Court
therefore concluded that the only remedy available to the
aggrieved party against the order of interim maintenance
under the second proviso to Section 125 Cr.P.C. would be
to make an application under Article 227 of the
Constitution of India and no other forum.
6. The learned Single Judge, on finding such
opinion of the Division Bench to be in conflict with other
judgments of Bench with co-eval strength, referred the
matter to the Chief Justice for constitution of a Division
Bench for a reconsideration of the issues involved in Md.
Akil Ahmad’s case (supra).
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7. While saying so, the learned Single Judge
relied upon Asian Resurfacing of Road Agency Pvt.
Ltd. And Another Vs. Central Bureau of Investigation :
2018 (2) PLJR 329 (SC), wherein it was held as
follows:-
“20. It was observed that power
under Section 482 Cr.P.C. could be
exercised only in the rarest of rare
cases and not otherwise:
38. The Criminal Procedure Code
is undoubtedly a complete code in itself.
As has already been discussed by us,
the discretionary jurisdiction under
Section 397(2) CrPC is to be exercised
only in respect of final orders and
intermediate orders. The power under
Section 482 CrPC is to be exercised
only in respect of interlocutory orders to
give effect to an order passed under the
Criminal Procedure Code or to prevent
abuse of the process of any court or
otherwise to serve the ends of justice.
As indicated above, this power has
to be exercised only in the rarest
of rare cases and not otherwise. If
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that is the position, and we are of
the view that it is so, resort to
Articles 226 and 227 of the
Constitution would be permissible
perhaps only in the most
extraordinary case. To invoke the
constitutional jurisdiction of the High
Court when the Criminal Procedure
Code restricts it in the interest of a fair
and expeditious trial for the benefit of
the accused person, we find it
difficult to accept the proposition
that since Articles 226 and 227 of
the Constitution are available to an
accused person, these provisions
should be resorted to in cases that
are not the rarest of rare but for
trifling issues.
…………………………………………………
23. We may also refer to the
observations of the Constitution Bench
in Ratilal Bhanji Mithani v. Asstt.
Collector of Customs, Bombay and
Anr. about the nature of inherent
power of the High Court:
“The inherent powers of the High
Court preserved by Section 561-A of
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the Code of Criminal Procedure are thus
vested in it by “law” within the meaning
of Article 21. The procedure for
invoking the inherent powers is
regulated by rules framed by the High
Court. The power to make such rules is
conferred on the High Court by the
Constitution. The rules previously in
force were continued in force by Article
372 of the Constitution.”
24. As rightly noted in the
impugned judgment, a Bench of seven
Judges in L. Chandra Kumar (supra)
held that power of the High Court to
exercise jurisdiction under Article 227
was part of the basic structure of the
Constitution.
25. Thus, even though in dealing
with different situations, seemingly
conflicting observations may have been
made while holding that the order
framing charge was interlocutory order
and was not liable to be interfered with
under Section 397(2) or even under
Section 482 Cr.P.C., the principle laid
down in Madhu Limaye (supra) still
holds the field. Order framing charge
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may not be held to be purely an
interlocutory order and can in a given
situation be interfered with under
Section 397(2) Cr.P.C. or 482 Cr.P.C.
or Article 227 of the Constitution which
is a constitutional provision but the
power of the High Court to interfere
with an order framing charge and to
grant stay is to be exercised only in an
exceptional situation.
26. We have thus no hesitation in
concluding that the High Court has
jurisdiction in an appropriate case to
consider the challenge against an order
framing charge and also to grant stay
but how such power is to be exercised
and when stay ought to be granted
needs to be considered further.”
8. The issue came up before Division Bench
of this Court where it was found that an order for interim
maintenance under the second proviso to Section 125
Cr.P.C. by a Family Court may not strictly be an
interlocutory order, but an intermediate order, which
would be revisable.
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9. As such, the Division Bench formulated
the following two questions to be determined by a larger
Bench:-
(i) Whether interim maintenance order
passed under the second proviso of
Section 125 of the Code of Criminal
Procedure, 1973 is an interlocutory order
or an intermediate order?
(ii) If the interim maintenance order
passed under the second proviso of
Section 125 of the Code of Criminal
Procedure, 1973 is an intermediate order,
whether revision against the said order is
maintainable under Section 19 (4) of the
Family Courts Act?
10. We have examined the provisions
contained in Chapter IX of the Cr.P.C., 1973 and the
various provisions of the Act of 1984.
11. Section 125 Cr.P.C. provides that if any
person having sufficient means neglects or refuses to
maintain his wife who is unable to maintain herself or his
legitimate or illegitimate minor child, whether married or
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not, or in case of such child not being a married daughter
who has attained the age of majority, where such child is
by reason of any physical or mental abnormality or injury,
unable to maintain itself or his father or mother who are
unable to maintain themselves, a Magistrate of the First
Class may, on 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 of an amount
which the Magistrate thinks fit.
12. The first proviso to Section 125 Cr.P.C.
further reads that the Magistrate may order the father of
a minor female child to make such allowance, until she
attains her majority, if the Magistrate is satisfied that the
husband of such female minor child, if married, is not
possessed of sufficient means.
13. The second proviso to Section 125
declares further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance, order such person to make a
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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. The outer time limit for
deciding such application for interim maintenance was
fixed at sixty days from the date of service of notice of
the application to such person.
14. Section 126 Cr.P.C. provides for the
procedure to be followed for a proceeding to be conducted
under Section 125 Cr.P.C. Section 127 permits of
alteration in allowance on proof of a change in the
circumstances of any person receiving a monthly
allowance for the maintenance or interim maintenance.
And Section 128 Cr.P.C. provides for the mechanism for
enforcement of such order of maintenance.
15. The second proviso to Section 125
Cr.P.C. empowering a Magistrate to order for interim
maintenance was added by Act 50 of 2001 with effect
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from 24.09.2001.
16. Prior to the afore-noted amendment in
Section 125 Cr.P.C., the section did not expressly
empower the Magistrate to pass an interim order of
maintenance; though having regard to the nature of
jurisdiction to pass such orders, it was held by the
Supreme Court that the Magistrate had the implied
powers to make such order of interim maintenance. [refer
to Savitri Vs. Govind Singh Rawat : 1985 (4) SCC
337].
17. The afore-noted judgment was based on
the principle ubi a liquid conceditur, conceditur et id sine
quo res ipsa esse non protest [where anything is
conceded, there is conceded also anything without which
the thing itself cannot exist]. Whenever anything is
required to be done by law and it is found impossible to do
that thing unless something not authorized in express
terms be also done, then that something else will be
supplied by necessary intendment. Such a construction
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would only advance the object of the Legislation under
consideration. Any contrary view would result in grave
hardship to the applicant, who may have no means to
subsist until the final order is passed.
18. The Parliament, taking a holistic view of
the matter that an applicant may have to wait for several
years for getting the relief even in a proceeding of
summary nature, amended Section 125 Cr.P.C. and
brought in the second proviso granting power to the
Magistrate to grant ad-interim maintenance on his
satisfaction.
19. Before such amendment in the Cr.P.C.,
the Act of 1984 was enacted to provide for establishment
of Family Courts with a view to promote conciliation in
and secure speedy settlement of dispute relating to
marriage and family affairs and for matters connected
therewith.
20. Section 7 of the Act of 1984 provides
for establishment of Family Courts and appointment of
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Judges to the Family Court. With respect to jurisdiction
of such Family Courts, it provides, inter alia, that a Family
Court shall have the jurisdiction exercisable by any
District Court or any subordinate Civil Court under any
law for the time being in force in respect of:
(i) A suit or proceeding between the parties
to a marriage for a decree of nullity of marriage or
restitution of conjugal rights or judicial suppression or
dissolution of marriage; and
(ii) A suit or proceeding for declaration as to
the validity of a marriage or as of the matrimonial status
of any person and a suit or proceeding for maintenance.
21. The jurisdiction also extended to other
aspects like guardianship, custody, access of children etc.
22. Section 8 of the Act of 1984, an
exclusionary provision, provides that no other Court
except the Family Court shall exercise any jurisdiction in
these matters where a Family Court has been established
for any area.
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23. With respect to procedure to be followed
by the Family Court, Section 10 of the Act of 1984
provides as hereunder:-
“10. Procedure generally.-(1) Subject
to the other provisions of this Act and the
rules, the provisions of the Code of Civil
Procedure, 1908 (5 of 1908) and of any
other law for the time being in force shall
apply to the suits and proceedings [other
than the proceedings under Chapter IX of
the Code of Criminal Procedure, 1973 (2
of 1974)], before a Family Court and for
the purposes of the said provisions of the
Code, a Family Court shall be deemed to
be a civil Court and shall have all the
powers of such Court.
(2) Subject to the other provisions of
this Act and the rules, the provisions of the
Code of Criminal Procedure, 1973 (2 of
1974) or the rules made thereunder, shall
apply to the proceedings under Chapter IX
of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-
section (2) shall prevent a Family Court
from laying down its own procedure with a
view to arrive at a settlement in respect of
Patna High Court CR. MISC. No.6740 of 2016 dt.22-11-2024
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the subject-matter of the suit or
proceedings or at the truth of the facts
alleged by the one party and denied by the
other.”
(emphasis provided)
24. Section 19 under Chapter V of the Act
of 1984, providing for appeals and revisions, is being
quoted hereunder for ready reference as also for
completeness as it would be the epicenter of the
discussions hereinafter:-
CHAPTER V
[APPEALS AND REVISIONS]
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
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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 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.]
(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
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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.
25. Dealing with miscellaneous provisions,
Section 20 of the Act of 1984 declares that the provisions
of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force or in any instrument having effect by
virtue of any law other than the Family Courts Act.
26. The order of interim maintenance
cannot be appealed against for the reason of the
provisions contained in Section 19 (1) and (2) of the Act
of 1984, which provides that no appeal shall lie from an
order passed under Chapter IX of the Cr.P.C., which
includes Sections 125 to 128 of the Code. The proviso to
Section 19 (2) of the Act clearly declares that nothing in
Section 19 (2) shall apply to any appeal pending before a
High Court or any order passed under Chapter IX of the
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Cr.P.C. before the commencement of the Family Courts
Act, 1991.
27. Were this to mean that in the event a
Magistrate exercising his jurisdiction under the second
proviso to Section 125 Cr.P.C., granting ad interim
maintenance, there would be no forum to challenge the
same?
28. Section 19 (4) of the Act of 1984 does
provide a remedy, viz., that 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
Cr.P.C. for the purposes of satisfying itself as to the
correctness, legality or propriety of the order, not being
an interlocutory order (emphasis provided), and as to the
regularity of such proceedings. Except as provided under
Section 19, no appeal or revision would lie to any Court
from any judgment, order or decree of a Family Court.
29. Herein the question formulated by the
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referring Bench requires to be answered.
30. If an order of interim maintenance is
held to be an interlocutory order, no revision would lie as
mandated under Section 19 (4) of the Act of 1984. This
conundrum troubled the Judges of the High Courts across
the country and different views were espoused by
different High Courts.
31. The Delhi High Court in Manish
Aggarwal Vs. Seema Aggarwal and Ors. : 2012 SCC
Online DEL 4816 traversed through the divergent
opinions of different High Courts and thought it fit to
interpret whether an order of interim maintenance under
the second proviso to Section 125 Cr.P.C. is an
interlocutory order, making it unrevisable.
32. In Shah Babulal Khimji Vs. Jayaben
D. Kania & Anr. : (1981) 4 SCC 8, the Supreme Court
had observed that an order, or even an interlocutory
order, could be called a judgment when it has the quality
of attaching finality to it. The Supreme Court laid down
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that there could be three kinds of judgments, viz., a final
judgment deciding all the questions or issues in
controversy; a preliminary judgment which could be in
two formats, namely:- (i) where the Trial Judge by an
order dismisses the suit without going into the merits, but
only on a preliminary objection raised by the defendant or
the party opposing on the ground that the suit is not
maintainable, in which case also the suit is finally decided,
one way or the other; and (ii) where the Trial Judge
passes an order after hearing the preliminary objection
raised by the defendant relating to maintainability of the
suit, e.g., bar of jurisdiction; res judicata; a manifest
defect in the suit; absence of notice under Section 80 etc.
These decisions by the Trial Court would not terminate
the suit which is yet to be tried on merits. However, the
Trial Judge rejecting the objections, undoubtedly
adversely affects a valuable right of a defendant, who, if
his objections are valid, is entitled to get the suit
dismissed on preliminary grounds.
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33. Thus, such an order, even though it
keeps the suit alive, undoubtedly decides an important
aspect of the trial which affects a vital right of the
defendant and must, therefore, be construed to be a
judgment so as to be appealable to a larger Bench.
34. An intermediary or interlocutory
judgment which are interlocutory orders containing the
quality of finality as clearly specified in Clauses A to W of
Order 43 Rule 1 of the Civil Procedure Code, which have
also been held to be judgments within the meaning of
letters patent and, therefore, appealable. There may also
be interlocutory orders which are not covered by Order 43
Rule 1, but which also possess the characteristics and
trappings of finality, in as much as, those orders may
adversely affect a valuable right of the party or decide an
important aspect of the trial in an ancillary proceeding.
35. Based on this broad classification, the
Full Bench of the Allahabad High Court in Smt. Kiran
Bala Srivastava Vs. Jai Prakash Srivastava : 2005 (23)
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LCD 1, while dealing with the provision contained in
Section 24 of the Hindu Marriage Act, 1955 (hereinafter
referred to as the HM Act) acknowledged the significance
of an order of maintenance under the HM Act. A refusal
to grant maintenance, or grant of inadequate
maintenance, would have a serious consequence for the
spouse (generally the wife) as it may have the result of
him/her giving up the idea of defending himself/herself or
for prosecuting the substantive proceedings for want of
sufficient means. Similarly, non-payment of amount
awarded under Section 24 of the HM Act could visit the
concerned party with the consequence of striking out of
the defence or of dismissal of his/her cause.
36. In Aakanksha Shrivastava Vs.
Virendra Shrivastava & Anr. : 2010 (3) MPLJ 151 (a
Division Bench judgment of the Madhya Pradesh High
Court), an issue arose whether a revision petition could be
preferred against an order of interim maintenance. It was
held that the order of interim maintenance under Section
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125 Cr.P.C. was an intermediate or quasi final order.
Relying upon the judgment of Amar Nath Vs. State of
Haryana : (1977) 4 SCC 137, it was held that an order
which substantially affects the rights of an accused and
decides certain rights of the parties is not to be held an
interlocutory order so as to make it unrevisable. It cannot
be equated with orders like summoning witnesses;
adjourning cases; passing orders for bail; calling for
reports and such other steps in the aid of pending
proceedings. Orders only like the afore-noted ones would
amount to interlocutory orders against which no revision
would be maintainable under Section 397 (2) of the
Cr.P.C. and also under Section 19 (4) of the Act of 1984.
It was held in no uncertain terms that an order of interim
maintenance under Section 125 Cr.P.C. is an order which
decides the “matter of moment”.
37. The other reason for not holding such
order of ad-interim maintenance as interlocutory order
was that an application for interim maintenance gives rise
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to a separate proceeding to be disposed off much earlier
than the final order in the main case. Qua the issue of
interim maintenance under the second proviso to Section
125 Cr.P.C., the matter is finally decided by the order
passed by the Magistrate and, therefore, they could at
best be called intermediate or quasi final orders. Such an
order may not put an end to the main dispute, but it
conclusively decides the point in issue. Holding such
orders to be interlocutory orders would only cause justice
be to deflected.
38. Similar views by other High Courts were
based on the judgment of Supreme Court in Madhu
Limaye Vs. State of Maharashtra : (1977) 4 SCC 551
in which the Supreme Court had held that ordinarily and
generally, the expression interlocutory order has been
understood and taken to mean as a converse of the term
final order; but the interpretation and the universal
application of the principle “what is not a final order must
be an interlocutory order” is neither warranted nor
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justified.
39. Similarly in V.C. Shukla Vs. State :
1980 (2) SCR 380, the Supreme Court has held that the
term “interlocutory order” used in the Cr.P.C. has to be
given very liberal construction in favour of the accused in
order to ensure complete fairness of trial and the
revisional power could be attracted if the order was not a
purely interlocutory, but intermediate or quasi final.
40. The High Courts, with a different view
over the issue, viz., Bombay, Rajasthan, Karnataka and
Orissa, have distinguishing the judgment in Shah Babulal
Khimji (supra), holding that the Supreme Court in this
instance had been examining the scope of appeal under
the letters patent and it was in that context that the
expression judgment was discussed and assigned a much
wider meaning. The Family Courts Act, 1984 has a
different scheme and it would not be appropriate to assign
any wider meaning of the word ‘judgment’ and include
even interlocutory orders in it.
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41. The learned Single Judge of this Court,
while first referring the matter to the Division Bench in
the instant case, was, perhaps, of the view that there
could be no outright proscription of the forum of Section
482 Cr.P.C. or that the only forum against the order of ad
interim maintenance would be Article 227 of the
Constitution of India.
42. The reason provided in Md. Akil
Ahmad’s case (supra) by the Division Bench of the Patna
High Court for non-application of Section 482 Cr.P.C. was
perhaps the mandate of the Act of 1984 under Section 10
that the provisions of Cr.P.C. or the rules made
thereunder would apply to the proceedings under Chapter
IX of the Code before a Family Court only.
43. We have great reservation in accepting
this proposition as particular provisions cannot be of
limited application before the Family Courts only and not
before the higher Courts. Nonetheless when the order
granting ad-interim maintenance is held to be not
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interlocutory in exact sense of the term and there is a
provision under the Family Courts Act, 1984, viz.,
Section 19 (4), which could get triggered, it would obviate
the necessity of looking for any other forum like Section
482 Cr.P.C. for challenging such order.
44. It would be more convenient to
understand the reason with which we agree entirely, why
the referring Bench asked for a reconsideration of Md.
Akil Ahmad’s case (supra) by extracting hereunder a few
paragraphs from the afore-noted referral order:-
“27. Admittedly, an interim order
under second proviso of Section 125 of the
Code of Criminal Procedure is passed
during pendency of petition filed under
Section 125(1) of the Code of Criminal
Procedure. The second proviso of Section
125 of the Code of Criminal Procedure has
been brought on statute book to give
instant relief to the applicant but the
interim order, admittedly, decides rights
and liabilities of the respective parties. No
doubt, before passing interim order under
Section 125 of the Code of Criminal
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Procedure, there is no need of formal
proof of the claim of the applicant but the
interim maintenance order passed under
second proviso of Section 125 of the Code
of Criminal Procedure, prima facie, decides
rights and liabilities of the parties.
Furthermore, the interim maintenance
order passed under second proviso of
Section 125 of the Code of Criminal
Procedure can be altered from time to
time. Similarly, the order passed under
Section 125(1) of the Code of Criminal
Procedure can also be altered at
subsequent stage, if the circumstance
demands.
28. Furthermore, I find that if a person
against whom the order of interim
maintenance has been passed fails without
sufficient cause to comply with the order of
the Court, coercive steps may be taken
against him. The order passed under
second proviso of Section 125 of the Code
of Criminal Procedure appears to be an
interlocutory order on its very face but as
to whether in true sense the order passed
under second proviso of Section 125 of the
Code of Criminal Procedure is an
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interlocutory order or not, it has to be
seen.
29. Section 127 of the Code of
Criminal Procedure gives power to Court to
alter the order passed either under Section
125(1) of the Code of Criminal Procedure
or under second proviso of Section 125 of
the Code of Criminal Procedure, therefore,
according to Section 127 of the Code of
Criminal Procedure, even the order passed
under Section 125(1) of the Code of
Criminal Procedure is not a final order and
that order can be altered later on, if the
change of circumstance demands. Similar
position is in respect of second proviso of
Section 125 of the Code of Criminal
Procedure as the order of interim
maintenance can also be altered at
subsequent stage of the proceeding,
therefore, it is obvious that nature of both
the orders, either passed under Section
125(1) of the Code of Criminal Procedure
or passed under second proviso of Section
125 of the Code of Criminal Procedure, are
quite similar in nature as both orders can
be altered at subsequent stage. Section
19(4) of the Family Courts Act does not,
Patna High Court CR. MISC. No.6740 of 2016 dt.22-11-2024
30/32
specifically, bar the revision against the
order passed under second proviso of
Section 125 of the Code of Criminal
Procedure and the only restriction is to
avail the provision of Section 19(4) of the
Family Courts Act that order in challenge
should not be an interlocutory order.
Therefore, in the aforesaid circumstance,
the nature of order of interim maintenance
passed under second proviso of Section
125 of the Code of Criminal Procedure
appears is an intermediate order and
Section 19(4) of Family Courts Act, 1984
bars the entertainment of revision only
against interlocutory order and not against
intermediate order.
30. As I have already observed that the
second proviso of Section 125 of the Code
of Criminal Procedure falls under the
category of intermediate order, therefore,
the interim maintenance order passed
under second proviso of Section 125 of the
Code of Criminal Procedure can be revised
under Section 19(4) Family Courts Act.
31. However, it is pertinent to note
here that learned Division Bench of this
Court in Md. Akil Ahmad case (supra)
Patna High Court CR. MISC. No.6740 of 2016 dt.22-11-2024
31/32
did not consider the aforesaid aspect and
treating the order passed under second
proviso of Section 125 of the Code of
Criminal Procedure as interlocutory order
came to conclusion that revision under
Section 19(4) of the Family Courts Act,
1984, against the interim maintenance
order passed under second proviso of
Section 125 of Code of Criminal Procedure
is not maintainable. Therefore, in my view,
the aforesaid observation of learned
Division Bench of this Court given in Md.
Akil Ahmad (supra) case needs
reconsideration by a larger Bench.
45. We are thus of the considered view that
an order of interim maintenance is an order finally
deciding the issue of the moment, which is not, stricto
sensu, an interlocutory order but an intermediary order
against which no bar of preferring revision against such
order would apply.
46. The questions are, thus, answered as
follows:-
(i) An order of interim maintenance under
Patna High Court CR. MISC. No.6740 of 2016 dt.22-11-2024
32/32
the second proviso of Section 125 Code of Criminal
Procedure, 1973 is not an “interlocutory order”, but an
“intermediate/quasi final order”; and
(ii) The remedy of criminal revision would
be available qua both the interim and the final order
under Sections 125 to 128 of the Code of Criminal
Procedure, 1973 under sub-section (4) of Section 19 of
the Family Courts Act, 1984.
47. The reference stands answered
accordingly.
Praveen-II/-
(Ashutosh Kumar, J)
Mohit Kumar Shah, J : I agree
(Mohit Kumar Shah, J)
Harish Kumar, J : I agree
(Harish Kumar, J)
AFR/NAFR AFR
CAV DATE 05.10.2024
Uploading Date 22.11.2024
Transmission Date 22.11.2024
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