Bar & Bench had reported on January 31 that two orders passed by the same Bench of the Rajasthan High Court were in conflict.
However, there is no conflict between the two orders regarding maintainability of a revision petition against an interim order for maintenance.
One of the orders was in relation to an interim order in an application under Section 125 of the Code of Criminal Procedure (CrPC).
The second order was in a revision petition filed against an order passed in appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (DV Act).
Our January 31 report inadvertently failed to delve into the nuances of the two cases involved. The said news report, to the extent of attributing conflict between the two orders, is erroneous. The error is regretted.
We explain the two orders below.
2018 order
In this case, an interim order for maintenance was passed in an application under Section 125 of the Code of Criminal Procedure. A revision petition was preferred against the same.
In this judgment, the Court noted that as per sub-section (2) of Section 397 CrPC, a bar was imposed on the power of revision of the High Court against interlocutory orders.
The Court went on to consider the question of whether an interim maintenance order is an interlocutory order.
It noted that there are conflicting opinions in this regard by various High Courts.
“There are differing views of different High Courts, Punjab & Haryana High Court are of view that interim maintenance order is not an interlocutory order, whereas Calcutta & Madhya Pradesh High Court are of the view that interim maintenance order is an interlocutory order”
However, the Court held that it was bound by its own decision in Chhotu Sing v. Smt. Basanti & Ors. and Minor Anu v. Ratan Lal Sharma wherein grant of interim maintenance is held to be an interlocutory order.
“Since the interim maintenance order continues till the final decision of an application under Section 125 Cr.P.C. and the decision of an interim application does not decide the rights and liabilities of the parties, it cannot be considered to be a final order so as to give rights to the parties to move a revision petition. Hence, revision petition is not maintainable.”
It, therefore, dismissed the petition for revision.
2019 order
In this case, an interim order for maintenance was passed by the Additional Chief Metropolitan Magistrate under Section 23 of Protection of Women from Domestic Violence Act, 2005.
On appeal under Section 29 of the act, the Sessions judge increased the maintenance amount.
A revision petition was preferred against the order of maintenance passed under Section 29 of the DV Act.
The court placed reliance on the decision of the Allahabad High Court in Dinesh Kumar Yadav v. State of UP. In that case, an order of interim maintenance was awarded in favour of the respondent wife. The husband’s challenge to the same was rejected by the Sessions Court.
In the revision petition, the Allahabad High Court held that revision under Section 397/401 of CrPC against an order passed by the Sessions Court under Section 29 of the DV Act is maintainable.
The Court also placed reliance on a larger Bench decision of the Rajasthan High Court which had held that an order passed under Section 24 of the Hindu Marriage Act, though limited in its duration till the main proceedings are decided, is a final order and hence appealable.
The Court noted that Section 28 of the DV Act contemplates that all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 of the Act shall be governed by the provisions of CrPC.
Since Section 23 is governed by the provisions of CrPC, any order passed under the same would be subject to revision. Consequently, revision would lie against an order passed in appeal under Section 29 of the Act, the Court held.
On the issue of whether an order under Section 23 of the Act would be an interlocutory order or not, thereby creating a bar on filing revision under Section 397(2) of CrPC, the Court relied on the decision of Allahabad High Court in Dinesh Kumar Yadav v. State of UP to hold that the same is a final order.
Hence, there would be no bar on entertaining revision in this case, the Court ruled.
Read the two orders below.
2019 order
2018 order