Interim maintenance orders not appealable under Hindu Marriage Act, Family Courts Act: Madras High Court

The Madras High Court recently ruled that interim or pendente lite orders of maintenance passed by a family court are not amenable to an appeal before the High Court either under Section 28 of the Hindu Marriage (HM) Act or under Section 19 of the Family Courts (FC) Act..Such orders of interim maintenance can be challenged only through criminal revision petitions under Article 227 of the Constitution, a bench of Justices M Sundar and K Govindarajan Thilakavadi said in a March 21 judgment. .The High Court held that interim orders made by family courts regarding the payment of expenses of proceedings and monthly support during the proceedings were “interlocutory orders." Therefore, they cannot be challenged under Section 19 of FC Act or under Section 28 of HM Act, it said.In this regard, the Court pointed out that sub section (1) of Section 19 of FC Act makes it clear that for an appeal to come within its perimeter, the order against which the appeal is made should not be an interlocutory order.“As regards Section 28 of HM Act, appeal lies against decree (Section 2(2) of 'the Code of Civil Procedure, 1908 (5 of 1908)' [hereinafter 'CPC' for the sake of convenience]) and not against an order (Section 2(14) of CPC) except orders under Sections 25 and 26 of HM Act and that also if such orders are not interim orders,” the High Court added..The Court was hearing two appeals filed by a husband and his estranged wife, who were opposing parties. The husband challenged an interim order awarding maintenance to his wife to cover monthly expenses and litigation costs while their divorce proceedings remained pending before a family court in Erode. On the other hand, the wife challenged the same order on the ground that she was entitled to an enhanced amount.Both husband and wife had filed civil miscellaneous applications (CMA) under Section 19 of the FC Act.During the proceedings, however, the lawyers for both sides and the Court realised that there existed contradictory judgements from several High Courts on the maintainability of such CMAs. Even the Supreme Court was yet to provide a clear answer on this aspect, it was noted..The High Court, therefore, tagged a batch of similar matters together and formulated the following question: “Whether statutory appeals under Section 19 of the Family Courts Act are maintainable as against impugned orders owing to the expression '....not being an interlocutory order....' in subsection (1) of Section 19 of the Family Courts Act, 1984?” The Court also appointed an amicus curiae to assist it in answering this question.During subsequent hearings, the Court realised that it also needed to examine if a statutory appeal under Section 28 of HM Act would lie against an order of interim maintenance or order for pendente lite maintenance under Section 24 of HM Act..The crux of such exercise, the Court said, was to examine the “Desideratum (meaning, the need for something) of the expression 'not being an interlocutory order' in Sub section (1) of Section 19 of The Family Courts Act,1984.”.The Court ultimately came to the decision that words and expressions used in the FC Act but not defined in the FC Act will have the same meaning assigned to the corresponding terms in the Code of Civil Procedure (CPC).“This is vide section 2(e) of FC Act. Therefore, terms 'judgment', 'order' and 'decree' occurring in Section 19(1) of FC Act and which have not been defined in FC Act have to necessarily be given the meaning as in Section 2(9), 2(14) and 2(2) of CPC respectively,” the High Court explained. The Court proceeded to conclude that interim or pendente lite orders were interlocutory orders. As such, it ruled that interim orders passed under the HM Act would not be appealable under the HM Act or the Family Courts Act. “Against an order of interim maintenance / pendente lite maintenance made under Section 24 of The Hindu Marriage Act, a appeal will not lie either under Section 28 of Hindu Marriage Act or under Section 19 of Family Courts Act,” the High Court said. .The Court, however, clarified that such interim orders could be challenged before the High Court by filing a revision plea under Article 227 (power of superintendence of High Courts over courts) of the Constitution of India. “A revision under Article 227 of the Constitution of India will lie to this Court against an order of interim maintenance / pendente lite maintenance made under Section 24 of the Hindu Marriage Act irrespective of whether it is made by a regular civil court or a Family Court; As an order of interim maintenance / pendente lite maintenance made under section 24 of the Hindu Marriage Act is only for a period of time, it can be reviewed / varied and it is an interlocutory order,” the Court held..Senior Advocates N Jothi, AK Kumarasamy, and T Murugamanickam, and advocates G Mohana Krishnan, S Kaithamalai Kumaran, Zeenath Begum, C Jagadish, R Marudhachalamurthy, AR Suresh, CD Johnson, T Ramachandran, S Kanmani Annamalai, M Marudhachalamurthy, K Govi Ganesan, S Lokesh, K Selvakumar, V Pavan Kumar, K Sumathi, SP Arthi, V Santhakumaresan, S Mohan, Sushanth Malligeswaran, R Rajavelavan, N Ramesh, and V Logesh, KB Vivekanandhan, S Vijayakumar, N Manokaran, P Senthilvel, D Ravindranathan, and K Selva Kumar appeared in the matter.Advocate Sharath Chandran was the amicus curiae in the matter..[Read Judgment]