JUDGMENT
Malay Sengupta, J.
1. This case arises out of an application filed under Section 19 of the Family Court, Act.
2. The parties are a couple but their marital relationship has been disturbed because of various reasons. Two criminal cases were also filed from the wife’s side with various allegations. One of those cases is pending in Siliguri (West Bengal) Court and the other is at Gangtok (Sikkim). For the purpose of this revisional application, we have little to do with these two criminal cases. Hence, we switch over to the other pending litigations.
3. The husband filed a case against the wife under Section 13 of the Hindu Marriage Act in Darjeeling (West Bengal) Court which was registered as Case No. 59/95. The wife went to the Supreme Court and got the case transferred to the District Court at Gangtok and the same has been registered as Case No. 3 of 1996 after being transferred to the Family Court.
4. Before the above noted matrimonial suit was transferred to Sikkim, the wife filed a case under Hindu Adoptions and Maintenance Act in Sikkim, and it was registered as Case No. 1 of 1995. After formation of the Family Court, the said case was transferred to the Family Court where it was registered as Case No. 21 of 1995. In the Case No. 1 of 1995 under Hindu Adoptions and Maintenance Act, the wife filed an application Under Section 24 of the Hindu Marriage Act on 11.5.1995. That application formed part of Family Court Case No. 21 of 1995 after the Case No. 1 of 1995 stood transferred to the Family Court. Again on 15.3.1996 the wife filed another application in the aforesaid Family Court Case No. 21 of 1995 seeking interim maintenance and litigation cost. Learned Judge, Family Court considered the application filed by the wife for maintenance pendente lite and expenses of proceedings and passed an order on 24.5.1996 in Family Court Case No. 21 of 1995. That is the impugned order challenged by the husband under the present revisional application.
5. The contention of the husband is that the impugned order is perversed to the extent that the learned Judge, Family Court did not apply his mind properly over the point at issue. Had the application which was being considered by the Family Court was Under Section 24, Hindu Marriage Act in Case No. 3 of 1996 Under Section 13 of Hindu Marriage Act, there would have been very little to object. But the application which the Family Court took into consideration was of 11.5.1995 in Case No. 1 of 1995 which was registered as Case No. 21 of 1995 after being transferred to Family Court and this case, as we have already discussed, was under Hindu Adoptions and Maintenance Act. It has been contended that in that application there was no prayer for cost of litigation. In a later petition filed on 15.3.1996 in the same case, litigation cost was also asked for alongwith prayer for interim order of maintenance. There is no scope for any interim order under Section 18 of Hindu Adoptions and Maintenance Act and that there is no provision for any order for litigation cost under any proceeding under Hindu Adoptions and Maintenance Act.
6. The respondent, the wife, challenges the maintainability of the revisional application itself. It has been urged that since the impugned order passed by the Family Court is interlocutory in nature and since it was with the consent of the parties, no appeal or revision would lie against the said order as contemplated Under Sections 19(1) and (2) of the Family Court Act. It has also been urged on behalf of the wife that the impugned order has been passed for the benefit of a helpless wife and provisions of social legislations can be extended by the Courts in appropriate cases. In such cases one should not quarrel with the technicalities. Any mistake committed in the pleading should also not stand on the way of extending benefit to helpless women.
7. We should first take up the point of maintainability of such a proceeding. Sections 19(1) and (2) of Family Court, Act say that no appeal or revision should lie against any interlocutory order or against any order passed with the consent of the parties. The law is very clear on this point. Inspite of that we may refer to the decision reported in AIR 1989 Allahabad page 9 at para 3 Anil Bahal v. Manju. But if it is found that any such order is passed perversely without taking care of all aspects of the case and relevant law, revision may lie against such order even under Section 115 of the Civil Procedure Code. Same is the view taken by Rajasthan High Court in Mukan Kunivar’s case reported in AIR 1958 Rajasthan page 322. Therefore, we cannot hold that the revisional application should be rejected outright only because the order was interim in nature.
8. We would come to the question of consent which plays a big role in such cases because of Section 19(2) of the Family Courts Act. We are to see if it was actually an order under consent. In the last sentence of paragraph 9 of the impugned order, learned Judge, Family Court observed that when the petitioner (husband) was reminded of his obligation to maintain the respondent as his wife in course of hearing, he very fairly conceded that he was willing to pay such sum of money as the Court considered reasonable in the circumstances of the case. We cannot take it as consent. We also think that learned Family Court Judge also did not take it as consent, otherwise he would have noted in the operative portion as an order of consent. It is not uncommon that the parties would say that they would bind themselves under the order passed by the Court. That can never amount to consent. Therefore the contention of the wife that the impugned order was passed with consent and falls within the mischief of Section 19(2) Family Court, Act is not acceptable.
9. The petitioner (husband) submitted that there is no provision under Hindu Adoptions and Maintenance Act for passing an order of interim maintenance. This is a proposition which is yet to take a dencerete shape. There are divergent views over the same. All the Courts admit that there is no provision for passing interim order of maintenance under this Act, but many of the High Courts are of the view that such an order, in extreme cases may be passed by invoking inherent power of the Court under Section 151, CPC. A Single Bench of Calcutta High Court in Gouri Gupta v. Tarani Gupta, AIR 1968 Cal. 305, contributed to this view. A Division Bench of Andhra Pradesh High Court in G. Appanna v. G. Seethamma, AIR 1972 AP 62, held just the opposite view and pronounced ‘That Court has no power unless statute expressly confers such a power on it’. Again a Division Bench of Calcutta High Court in Jains’ case, AIR 1968 Calcutta 405, held that grant of interim maintenance is not an act of exercise of inherent jurisdiction. But in appropriate case interlocutory order of interim maintenance can be passed in aid of a suit. From this jungle of conflicting decisions we may, for the time, being hold that interim order of maintenance can be passed in a proceeding under Hindu Adoptions and Maintenance Act. But still some confusion remains when the question of interim or final order regarding cost of litigation comes in. We have already noted that the Courts cannot grant a relief which is not permissible under the statute under which a litigation is filed. There is no singular decision available from any of the High Courts which held the view that an order, interim or final, with respect to litigation cost can be passed under Hindu Adoptions and Maintenance Act. Rather in Somanath v. Sabitri, AIR 1987 Orissa 251, it has specifically been held that no order towards payment of litigation cost can be passed under Hindu Adoptions and Maintenance Act.
10. The learned Advocate for the wife contended that the allegation of the husband that in a case under Hindu Adoptions and Maintenance Act, no application under Section 24 of the Hindu Marriage Act can be entertained, cannot hold good in view of the aforesaid judgment in Somanath’s case. In the aforesaid case the Court endorsed the order for interim maintenance passed on a petition filed under Section 24 Hindu Marriage Act in a case under Hindu Adoptions and Maintenance Act accepting it to be a clerical mistake in mentioning the provision of law. The Court, however, rejected the order so far as the same related to the payment of litigation costs. In the instant case the fact is altogether different. Here the case under Hindu Adoptions and Maintenance Act (No. 21 of 1995) is not the solitary case. There was another case (3 of 1996) pending before the same Court where such a petition could have been filed and entertained. In a decision reported in AIR 1973 Andhra Pradesh 31, A. Simhachalam v. A. Papamtna, a Division Bench held that inspite of pendency of a proceeding initiated by the wife under Section 18 of Hindu Adoptions and Maintenance Act, she can claim interim maintenance under Section 24 Hindu Marriage Act in a proceeding under Hindu Marriage Act. The respondent (wife) could have taken this recourse.
11. It is palpable from the operative portion (para 12) of the impugned order that the learned Judge of Family Court considered the petition filed on 11.5.1995. We have already noted that it was a petition under Section 24, H.M. Act in a proceeding under Hindu Adoptions and Maintenance Act. Therefore, it was filed wrongly. Even if we go by the decision of the Orissa High Court and ignore the clerical omission, we cannot endorse the view of the learned Judge, Family Court that the husband was to pay litigation cost.
12. Thus we see that the learned Judge, Family Court suffered from utter confusion in dealing with the matter. He dealt the petition dated 11.5.1995 treating it to be a petition filed under Section 24, H.M. Act in a matrimonial proceeding under H.M. Act. We have already observed that we could have understood if such a petition was filed in Case No. 3 of 1996 or a petition for interim maintenance only is filed in Case No. 21 of 1995. But the petition does not fall under any of these two groups.
13. Learned Judge, Family Court also did not take into consideration the income of the husband. Moreover, the view of the learned Judge that the wife had to spend substantial amount and she is to continue to spend such amount to meet the litigations spread over the two States. It is not available from the body of the judgment as to how the learned Judge could derive such a conclusion. It is the admitted position that there is only one case pending in Siliguri (West Bengal) where the husband resides and that is also a police case and not at the stage of hearing. All other cases are at Sikkim where the wife resides. Rather the husband is to come to Sikkim from Siliguri to attend these cases, number of which would not be less than three. Moreover, he was directed to pay off the entire arrear costs of litigation and maintenance amounting to around Rs. 12,000/- all at a time within a short period of one month only. The Court has the right to exercise his discretion in the matter of assessing the quantum of maintenance or litigation cost. But the discretion should be exercised judicially, on sound legal principles and not arbitrarily or capriciously. This is the view Expressed in Sushila Debi v. Dhanuram, AIR 1965 HP 12.
14. This is a case where the Family Court acted perversely in arriving at a decision and in passing the impugned order. The order should be set aside. The wife would, however, be at liberty to move afresh with required materials and in appropriate manner and in proper proceeding to claim interim order for her maintenance or litigation costs, if so advised.
15. With the above observations, the Civil Revision is dismissed on contest without costs. The order of the learned Judge, Family Court passed on 24.5.1996 in Family Court Case No. 21 of 1995 is set aside.
