By: Vidhan Malik
INTRODUCTION
For a long time, different High Courts have come up with different interpretations on the issue of whether an order of pendente lite maintenance under section 24 of the Hindu Marriage Act, 1955 (“HMA”) is to be considered interlocutory; or should it be considered final thereby an appeal against the said order be maintainable before the High Court under Section 19 of the Family Courts Act, 1984 (“FCA”). The author in this piece analyses the contrary reasonings taken by different High Courts on the said issue and also proposes what should be a correct approach.
STATUTORY PROVISIONS AND JUDICIAL TRENDS
Section 24 of HMA states that during the pendency of any proceeding under the act, if either spouse has no independent income to support themselves or income for expenses of the proceeding, the court can order the other spouse to pay for the expense of the proceeding as well as some maintenance during the proceeding to the spouse in need. Section 19 of FCA provides that any judgement/order passed by a Family Court can go for appeal before the High Court, except where such order is an interlocutory order.
Furthermore, Section 28(1) of HMA allows an appeal against any decree passed by a court and Section 28(2) of HMA states that any order passed by a court in any proceeding under section 25 or section 26 of HMA will be appealable, provided it should not be an interim order. It is pertinent to note that this provision is silent with regard to any appeal against an order of pendente lite maintenance under section 24 of HMA.
A disputed question of law that has arisen from the aforementioned provisions is that whether an order of pendente lite maintenance is to be considered merely as interlocutory, thus not appealable as per section 28 of HMA and section 19 of FCA; or it finally settles the dispute between the parties thereby allowing a challenge against it.
Some of the relevant judgements on the said contentious issue are as follows:-
A full bench of the Allahabad High Court in Kiran Bala Srivastava v. Jai Prakash Srivastava by relying on the Apex Court’s judgement of Madhu Limaye v. State of Maharashtra and Amar Nath v. State of Haryana to interpret the meaning of the term “interlocutory order”, held that an order which substantially affects the rights of the parties cannot be called interlocutory; and merely because the main controversy in question continues to remain alive does not necessarily mean that the order is not final. Furthermore, the granting of pendente lite maintenance has no relation with the issues that may come up in the main proceedings under HMA, as the ambit and scope of such proceedings isentirely separate. Lastly, it held that the purpose of section 24 of HMA is to provide requisite funds to the spouse in need; and since it is usually the wife who approaches the court for pendente lite maintenance, if she is denied the same, she may be constrained to forgo her right to defend herself.
A similar view was taken by the High Court of Punjab and Haryana recently while considering batch appeals in XXX v. XXX FAO-5930-2023 (O&M), wherein it was held that a Family Court in deciding an application of pendente lite maintenance adjudicates upon the rights of the parties conclusively and has all the characteristics of a judgement.
However, long back in Sunil Hansraj Gupta v. Payal Sunil Gupta, the Bombay High Court had taken a contradictory view on the said issue by saying that an interlocutory order is the one which decides merely about some point or matter essential to augment the suit but is not a final judgement in the matter in issue. It held that an order of pendente lite maintenance does not decide the rights or liabilities of the parties in any manner and only specifies the quantum of maintenance/costs, therefore, the same shall not be appealable. Lastly, it held that pursuant to the amendment in section 28 of HMA in 1976, if an appeal is allowed against an order under section 24 of HMA, it will defeat the very purpose of the introduction of the amendment.
Similarly, a full bench of the Madhya Pradesh High Court in Anup Kumar v. Reena @ Renuheld that in case the Family Court adjudicates on any issue which directly impacts the decision in the main case or which settles any collateral issue completely, then such an order would be appealable; but under Section 24 of HMA, the courts merely pass an incidental direction and there is no comprehensive adjudication. Also, the said section can be invoked only when there is a parallel proceeding already been initiated under HMA and the life of the pendente lite order terminates with the culmination of that parallel proceeding, thereby making such an order merely interim/interlocutory.
But, recently in Mr. Nilendra Singh Pawar v. Dr. Smt. Deepti Pawar, a division bench of Madhya Pradesh High Court took a contrary stand from the aforementioned decision and held that since the maintenance and litigation expenses are not returned post the culmination of the main proceeding and the said order is not made part of final decision, it should be appealable.
One of the latest decisions on the said issue is by the Madras High Court, where, while hearing batch matters in CMP No. 18729 of 2023 and CMA No. 1914 of 2021, the Court held that an order of pendente lite maintenance does not finally decide the issues in the main proceeding and can also be modified pursuant to change in the circumstances by the Family Court itself. Furthermore, the court held that the Apex Court while interpreting the term “interlocutory order” in Madhu Limaye (supra) and V.C. Shukla v. State (Delhi Administration) dealt with the criminal jurisprudence and these cases are easily distinguishable with the existing case as they have no application for determining “interlocutory order” under HMA and FCA, therefore, the pendente lite maintenance order is to be considered merely as interlocutory.
Likewise, several other High Courts have come up with contrary opinions time and again and due to the absence of any interpretation by the Apex Court, there is no clarity as to what is the correct position.
ANALYSIS AND CONCLUDING THOUGHTS
In my humble opinion, the High Courts taking the view that the pendent lite orders are final as they decide the rights of the parties conclusively do not lay down the correct position of law for the following reasons: First, these High Courts have relied entirely on the Apex Court’s decisions giving meaning to “interlocutory orders” in criminal statutes, which need not necessarily have application to HMA and FCA, for the Hon’ble Supreme Court in Gujarat Urja Vikas Nigam Limited v. Amit Gupta has held:
“The meaning and content attributed to statutory language in one enactment cannot in all circumstances be transplanted into a distinct, if not alien soil. For, it is trite law that the words of a statute have to be construed in a manner which would give them a sensible meaning which accords with the overall scheme of the statute, the context in which the words are used and the purpose of the underlying provision.”
Also, the Apex Court in Arunoday Singh v. Lee Anne Elton has laid down that the section 19 of FCA is not a substantive law dealing with marriage and divorce, rather, it merely governs the procedure of the Family Courts. It is a settled position that the right to appeal is a substantive right, therefore, the statutory provision to decide orders under HMA from which an appeal would lie would be section 28 of HMA., A look at the 59th Report of Law Commission of India pursuant to which HMA was amended in 1976, tells us that the reason to amend section 28 was to limit the number of appeals to decrees; and orders of permanent nature arising out of section 25 and 26 of HMA only, therefore, the legislative intent was very clear that they did not want the orders of pendente lite maintenance to be appealable. Second, assuming arguendo, the Apex Court’s judgements explaining interlocutory orders in criminal jurisprudence can be used for the purpose of interpreting interlocutory orders under HMA and FCA, the High Courts have wrongly interpreted the said judgements. The 4-judge bench of the Apex Court in VC Shukla (supra) affirmed Amar Nath (supra); where it was held that an interlocutory order would be the one which do not touch upon the important rights or liabilities of any of the parties. The Court even laid down few types of orders which would be interlocutory order for the ease of our understanding in the following manner:
“order summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps pending proceeding amount”
Furthermore, it was held that orders which acts as stepping stone and assist in final adjudication of the case in a pending proceeding and which regulate the procedure somehow would be interlocutory orders. Drawing an analogy from Amar Nath (supra), if passing order for bail is to be considered interlocutory, then order for pendente lite maintenance which merely assist the financially weaker party to culminate the proceeding should definitely be considered as an interlocutory order. Also, pendente lite maintenance do not impact the rights of the wife finally and conclusively since a wife can always claim maintenance from the husband at any point in time till the subsistence of the marriage under Section 125 CrPC and permanent alimony/maintenance for post the dissolution of the marriage under Section 25 of HMA, thereby protecting her financial rights.
Since the Apex Court has not laid down any judgement on interpreting “interlocutory orders” with respect to HMA and FCA, and the pre-existing decisions pertaining to the criminal jurisprudence does not give us an exhaustive definition of what exactly are interlocutory orders, it would be interesting to see what view the Supreme Court takes to settle this conundrum.
(Vidhan Malik is a law graduate from National Law University, Jodhpur, currently practicing as an advocate in New Delhi. The author may be contacted via mail at vidhanmalik@gmail.com)
Cite as: Vidhan Malik, Interlocutory or Final?: Order of Pendente Lite Maintenance Under Section 24 of Hindu Marriage Act- The Unresolved Conundrum, 30th January 2025 <https://rmlnlulawreview.com/2025/01/30/interlocutory-or-final-order-of-pendente-lite-maintenance-under-section-24-of-hindu-marriage-act-the-unresolved-conundrum/> date of access.