# Liaqat Hussain v. Smt. Jainab Parveen & Anr

- **Citation:** (2021) 2 ILRA 915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-03
- **Case number:** First Appeal Defective No. 300 of 2020
- **Bench:** Naheed Ara Moonis, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/liaqat-hussain-v-smt-jainab-parveen-anr-46161
- **Pages:** 7

## Headnote

A. Family Law - Family Courts Act, 1984 -
Sections 7(2)(a), 19 - Code of Criminal
Procedure - Section 125 - Maintenance -
Maintainability of appeal Remedy against
the order passed by the Family Court
under Section 125 of Chapter IX of Cr.P.C.
has been specifically provided under
Section 19(4) of the Act, which confers
powers on the High Court to examine the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
correctness, legality or propriety to the
order passed by the Family Court. When the
Family Court is dealing with the proceeding
under Chapter IX of Cr.P.C. exercisable by the
Magistrate of the first class in such contingency
criminal revision would be maintainable against
both interim as well as final order passed u/s
125 Cr.P.C. (Para 12)

B. An order which substantially affects the
rights and decides certain rights of the
parties, has been held not to be an
interlocutory order so as to bar revision.
(Para 13)

In the above conspectus, an application for
interim maintenance u/s 125 Cr.P.C. is a
separate proceeding to be disposed of while
pending final order and any such order of
interim maintenance would be intermediate or
quasi judicial order, effecting the vital rights of
the parties. (Para 14)

The appeal is hereby held as not maintainable
u/s 19(1) of the Family Courts Act, 1984 qua
proceeding under Chapter IX of the Cr.P.C.
(Section 125-128) in view of the mandate of
sub-section 2 of S. 19 of the said Act. The issue
does not relate to the merits of the case under
appeal. However, appellant is given liberty to
file a criminal revision u/s 19(4) of the Family
Court Act, 1984. (Para 15, 17)

Appeal dismissed. (E-3)

Precedent followed:

## Text

2 All. Liaqat Hussain Vs. Smt. Jainab Parveen & Anr.
915
extracted
above.
Therefore,
the
oral
evidence
led
by
the
claimants
and
defendants was relevant and could not be
ignored to the advantage of the insurer
particularly when he had an opportunity to
cross-examine the witnesses.

19. The insurer in the case at hand
had specifically pleaded the involvement of
the trolley being used for commercial
purpose and having an opportunity of
cross-examination
of
the
witnesses
produced before the Tribunal, cannot come
up in defence and argue that the oral
evidence available on record ought not to
have been considered by the Tribunal for
want of pleadings of the claimants or the
owner as such. The proposition of law
advanced before the Court, taking support
of the decisions cited before this Court,
does not help the insurer in the nature of
proceeding under the Motor Vehicles Act
which is a beneficial legislation. The
finding recorded by the Tribunal that the
unregistered trolley attached to the tractor
required the permit, in my humble
consideration, looking to the material
available on record, is clearly perverse. The
position that the trolley was loaded with
'Jhankar' and nothing was found otherwise
in the cross-examination by the insurance
company, was a satisfactory proof to belie
the stand adopted in paras 28-A and 28-B.
The finding so recorded deserves to be
overruled and the liability to pay would
thus stand shifted upon the insurer to the
extent of compensation as has been allowed
by the Tribunal.

20. For the reasons recorded above,
both the FAFOs are hereby allowed. The
judgement/order
dated
23.11.2006
impugned in FAFO No. 305 of 2010 and
3.2.2007 impugned in FAFO No. 230 of
2010 passed by the Tribunal are modified
to the extent that the award made by the
Tribunal shall be satisfied by National
Insurance Company Ltd. and the necessary
compliance of the award shall be made
within a period of two months from today.

21. The statutory amount or any other
amount deposited in compliance of any
order passed by this Court is permitted to
be withdrawn by the appellant. The interest
on the awarded amount in either of the two
appeals is restricted to Rs. 25,000/- or 4%
whichever
is
lesser
and
the
judgement/order passed by the Tribunal is
also modified to this extent.

22. No order as to cost.
----------
(2021)02ILR A915
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2020

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE VIVEK VARMA, J.

First Appeal Defective No. 300 of 2020

Liaqat Hussain ...Appellant
Versus
Smt. Jainab Parveen & Anr. ...Respondents

Counsel for the Appellant:
Sri Arun K. Singh Deshwal

Counsel for the Opposite Parties:

A. Family Law - Family Courts Act, 1984 -
Sections 7(2)(a), 19 - Code of Criminal
Procedure - Section 125 - Maintenance -
Maintainability of appeal Remedy against
the order passed by the Family Court
under Section 125 of Chapter IX of Cr.P.C.
has been specifically provided under
Section 19(4) of the Act, which confers
powers on the High Court to examine the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
correctness, legality or propriety to the
order passed by the Family Court. When the
Family Court is dealing with the proceeding
under Chapter IX of Cr.P.C. exercisable by the
Magistrate of the first class in such contingency
criminal revision would be maintainable against
both interim as well as final order passed u/s
125 Cr.P.C. (Para 12)

B. An order which substantially affects the
rights and decides certain rights of the
parties, has been held not to be an
interlocutory order so as to bar revision.
(Para 13)

In the above conspectus, an application for
interim maintenance u/s 125 Cr.P.C. is a
separate proceeding to be disposed of while
pending final order and any such order of
interim maintenance would be intermediate or
quasi judicial order, effecting the vital rights of
the parties. (Para 14)

The appeal is hereby held as not maintainable
u/s 19(1) of the Family Courts Act, 1984 qua
proceeding under Chapter IX of the Cr.P.C.
(Section 125-128) in view of the mandate of
sub-section 2 of S. 19 of the said Act. The issue
does not relate to the merits of the case under
appeal. However, appellant is given liberty to
file a criminal revision u/s 19(4) of the Family
Court Act, 1984. (Para 15, 17)

Appeal dismissed. (E-3)

Precedent followed:

1. Manish Aggarwal Vs Seema Aggarwal & ors.,
FAO No. 288 of 2012, decided on 13.09.2012
(Para 10)

2. Amarnath & ors. Vs St. of Har. & ors., AIR
1977 SC 2185 (Para 13)

Present appeal is against judgment and
order
dated
28.08.2020,
passed
by
Principal Judge, Family Court, Amroha.

(Delivered by Hon'ble Naheed Ara
Moonis, J.
&
Hon'ble Vivek Varma, J.)

1. The instant first appeal has been
filed under Section 19 of the Family Courts
Act on behalf of the appellant Liaqat
Hussain, against the judgement and order
dated 28.8.2020 passed by the Principal
Judge, Family Court, Amroha in Case No.
173 of 2017 (Smt. Zainab Parveen Vs.
Liaqat Hussain) whereby the application
moved by the respondent-wife claiming
maintenance for herself and her minor
daughter under Section 125 of the Code of
Criminal Procedure has been allowed and
the appellant-husband was directed to pay
maintenance at the rate of Rs. 7000/- per
month to the wife Smt. Zainab Parveen and
Rs. 5000/- per month to the minor daughter
Aleema Hussain to be paid by the appellant
by the 10th of each month from the date of
order.

2. The Stamp Reporter of this Court
raised objections in respect of competence
of this appeal as not maintainable in view
of Section 19 of the Family Courts Act,
1984.

3. The question which arises in the
present appeal is whether an appeal would
lie under Section 19 of the Family Courts
Act, 1984 against an order passed by the
Family Court in a proceeding filed under
Chapter IX of the Code of Criminal
Procedure (Section 125 to 128).

4.

Before
adverting
to
the
maintainability of the appeal, the factual
background of the case is that the appellant
was married with the respondent-Zainab
according to Muslim custom and rites on
31.3.2013 and out of their wedlock a
female child was born, but on account of
matrimonial bickering, the respondent-wife
left the house of her husband and started
living
in
her
parental
house
under
compelling circumstances and as she could
2 All. Liaqat Hussain Vs. Smt. Jainab Parveen & Anr.
917
not maintain herself and her minor
daughter aged 3 years, she moved an
application under Section 125 Cr.P.C.
before the Family Court, Amroha on
01.9.2017 claiming maintenance from the
appellant. After considering the facts of the
case, the learned Family Judge passed an
order on 28.8.2020 granting maintenance at
the rate of Rs. 7,000/- to the wife and Rs.
5000/- to the child per month from the date
of order. Being aggrieved by the order
dated 28.8.2020, the appellant has come up
before this Court by filing the present
appeal under Section 19 of the Family
Courts Act, 1984.

5. The Family Courts Act, 1984 was
enacted to promote speedy settlement of dispute
relating to marriage and family affairs. Section
7 of the Act deals with the jurisdiction of the
Family Court. By virtue of Section 7(2)(a) of
the Act, the proceeding under Chapter IX
Section 125 Cr.P.C. shall lie before the Family
Court. It would be apposite to reproduce section
7(2)(a) of the Act.

Section 7(2) Subject to the other
provisions of this Act, a Family Court shall
also have and exercise-

(a) the jurisdiction exercisable by a
Magistrate of the First Class under Chapter
IX (relating to order for maintenance of
wife, children and parents) of the Code of
Criminal Procedure, 1973 (2 of 1974);

Section 19 of the Act deals with the
appeals and revisions, which falls under
Chapter V of the said Act, which is quoted
herein below:

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 judgement or
order, not being an interlocutory order of a
Family Court to the High Court both on facts
and law.

(2) No appeal shall lie from a decree
or order passed by the Family Court with the
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 subsection 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
judgment, order or decree of a Family Court.

(6) An appeal preferred under subsection (1) shall be heard by a Bench consisting
of two or more Judges."

6. It is relevant to state that Chapter V of
the Act contains only one section with the
heading appeals and revisions, but Section 19
per se does not use expression revision.

7. A bare reading of Section 19 of the
said Act elucidates that under sub-section
(1) save as provided in sub-section (2), an
appeal lies from every judgement or order
of the Family Court to the High Court, both
918 INDIAN LAW REPORTS ALLAHABAD SERIES
on facts and on law. This right of appeal
comes with one limitation that it does not
lie against an interlocutory order. Subsection (2) of Section 19 of the said Act
specifically prohibits any appeal from an
order passed under Chapter IX of the Code
of Criminal Procedure. Thus, a conjoint
reading of sub-section (1) and sub-section
(2) of Section 19 of the Act makes it clear
that the appeal would not be maintainable
before this Court from an order under
Chapter IX of the Cr.P.C.

8. Chapter IX of Code of Criminal
Procedure, 1973 contains four provisions,
i.e. Section 125 to 128 Cr.P.C., which are
related to the order for maintenance of
wife, children and parents. For the sake of
brevity,
the
provisions
relating
to
maintenance under Section 125 Cr.P.C.
reads as under:

"125. Order for maintenance of
wives, children and parents.

(1)If any person having sufficient
means neglects or refuses to maintain-

(a) his wife, unable to maintain
herself, or

(b) his legitimate or illegitimate
minor child, whether married or not, unable
to maintain itself, or

(c) his legitimate or illegitimate
child (not being a married daughter) who has
attained majority, where such child is, by
reason of any physical or mental abnormality
or injury unable to maintain itself, or
(d) his father or mother, unable to maintain
himself or herself,

A Magistrate of the first class may,
upon 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, at such monthly rate as such
Magistrate thinks fit and to pay the same to
such person as the Magistrate may from time
to time direct:

Provided that the Magistrate may
order the father of a minor female child
referred to in clause(b) to make such
allowance, until she attains her majority, if
the Magistrate is satisfied that the husband of
such minor female child, if married, is not
possessed of sufficient means.

Provided
further
that
the
Magistrate may, during the pendency of the
proceeding regarding monthly allowance for
the maintenance under this sub-section, order
such person to make a 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:

Provided also that an application
for the monthly allowance for the interim
maintenance and expenses for proceeding
under the second proviso shall, as far as
possible, be disposed of within sixty days
from the date of the service of notice of the
application to such person.

Explanation:- For the purposes of
this Chapter,-

(a) " minor" means a person who,
under the provisions of the Indian Majority
Act, 1875 (9 of 1875 ); is deemed not to have
attained his majority;

(b)" wife" includes a woman who
has been divorced by, or has obtained a
divorce from, her husband and has not
remarried.

(2) Any such allowance for the
maintenance or interim maintenance and
expenses for proceeding shall be payable
from the date of order, or if so ordered, from
the date of the application for maintenance or
interim
maintenance
and
expenses
of
proceeding, as the case may be.
2 All. Liaqat Hussain Vs. Smt. Jainab Parveen & Anr.
919

(3) If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may, for every
breach of the order, issue a warrant for
levying the amount due in the manner
provided for levying fines, and may sentence
such person, for the whole or any part of
each
month's
(allowances
for
the
maintenance or the interim maintenance and
expenses of proceeding, as the case may be)
remaining unpaid after the execution of the
warrant, to imprisonment for a term which
may extend to one month or until payment if
sooner made:

Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be made
to the Court to levy such amount within a
period of one year from the date on which it
became due:

Provided further that if such person
offers to maintain his wife on condition of her
living with him, and she refuses to live with
him, such Magistrate may consider any
grounds of refusal stated by her, and may
make
an
order
under
this
section
notwithstanding such offer, if he is satisfied
that there is just ground for so doing.

Explanation.- If a husband has
contracted marriage with another woman or
keeps a mistress, it shall be considered to be
just ground for his wife' s refusal to live with
him.

(4) No Wife shall be entitled to
receive an allowance for the maintenance or
the interim maintenance and expenses of
proceeding, as the case may be, from her
husband under this section if she is living in
adultery, or if, without any sufficient reason,
she refuses to live with her husband, or if they
are living separately by mutual consent.

(5) On proof that any wife in whose
favour an order has been made under this
section is living in adultery, or that without
sufficient reason she refuses to live with her
husband, or that they are living separately by
mutual consent, the Magistrate shall cancel
the order."

9. Upon plain reading of Section 125
Cr.P.C. it is clear that the provision is made to
protect the weaker spouse from her vagrancy
and merely because the appeal is not
maintainable against the order passed under
Section 125 Cr.P.C., as mentioned in subsection 2 of Section 19 of the Family Courts
Act. a person is not left as remedy less. The
legislature has taken care of such a situation
and hence under Section 19(4) of the Act, it
has been provided that 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 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.

10. The sub-section (2) of Section 19
delineates that no appeal shall lie from a
decree or order passed by the Family Court
with the consent of the parties or from an
order passed under Chapter IX of the Code
of Criminal Procedure. (emphasis laid)

The scope of Section 19 of the
Family Courts Act came up before the
Division Bench of Delhi High Court in
Manish Aggarwal Vs. Seema Aggarwal
and others (FAO No. 288 of 2012) decided
on 13.09.2012. The Court has also
elaborately discussed with respect to three
kinds of judgement, viz, final judgement,
preliminary judgement and intermediary or
interlocutory judgement in the context of
filing appeals and revisions.

11. The Court held thus:
920 INDIAN LAW REPORTS ALLAHABAD SERIES

"We, thus, conclude as under:

(i) In respect of orders passed
under Sections 24 to 27 of the Hindu
Marriage Act appeals would lie under Section
19(1) of the said Act to the Division Bench of
this Court in view of the provisions of subsection (6) of Section 19 of the said Act, such
orders being in the nature of intermediate
orders. It must be noted that sub-section (6)
of Section 19 of the said Act is applicable
only in respect of sub-section (1) and not subsection (4) of Section 19 of the said Act.

(ii) No appeal would lie under
Section 19(1) of the said Act qua proceedings
under Chapter 9 of the Cr.P.C. (Sections 125
to 128) in view of the mandate of sub-section
(2) of Section 19 of the said Act.

(iii) The remedy of criminal
revision would be available qua both the
interim and final order under Sections 125 to
128 of the Cr.P.C. under sub-section (4) of
Section 19 of the said Act. (Emphasis laid)

(iv) As a measure of abundant
caution, we clarify that all orders as may be
passed by the Family Court in exercise of its
jurisdiction under Section 7 of the said Act,
which have a character of an intermediate
order, and are not merely interlocutory
orders, would be amenable to the appellate
jurisdiction under sub-section (1) of Section
19 of the said Act."

12. Thus the remedy against the order
passed by the Family Court under Section
125 of Chapter IX of Cr.P.C. has been
specifically provided under Section 19(4) of
the Act, which confers powers on the High
Court to examine the correctness, legality or
propriety to the order passed by the Family
Court. When the Family Court is dealing with
the proceeding under Chapter IX of Cr.P.C.
exercisable by the Magistrate of the first class
in such contingency criminal revision would
be maintainable against both interim as well
as final order passed under Section 125
Cr.P.C.

13. An order which substantially affects
the rights and decides certain rights of the
parties, it has been held not to be an
interlocutory order so as to bar revision in
view of the pronouncement by the Hon'ble
Apex Court in Amarnath and others Vs.
State of Haryana and others, AIR 1977 SC
2185.

14. In the above conspectus, an
application for interim maintenance under
Section 125 Cr.P.C. is a separate proceeding
to be disposed of while pending final order
and any such order of interim maintenance
would be intermediate or quasi judicial order,
effecting the vital rights of the parties.

15. In view of the verbose and prolix
discussion, while upholding the objection of
the Stamp Reporter, the appeal is hereby held
as not maintainable under Section 19(1) of
the Family Courts Act, 1984 qua proceeding
under Chapter IX of the Cr.P.C. (Section 125128) in view of the mandate of sub-section 2
of Section 19 of the said Act. The issue
determined above, does not relate to the
merits of the case under appeal.

16. Accordingly, the instant appeal is
dismissed as not maintainable.

17. The appellant is at liberty to file a
criminal revision under Section 19(4) of the
Family Courts Act, 1984, which shall be
reported by the Stamp Reporter of the Court
as per the Allahabad High Court Rules, 1952.
If the issue of limitation arises, it would be
considered by the court concerned.

18. Office is directed to return the
certified copy of the impugned order as per
2 All. Pati Rakhan & Anr. Vs. Smt. Chandrani Devi
921
Rules of the Court after retaining the photo
copy thereof on record.
----------
(2021)02ILR A921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 144 of 2017

Pati Rakhan & Anr. ...Appellants
Versus
Smt. Chandrani Devi ...Respondent

Counsel for the Appellants:
Virendra Mishra

Counsel for the Respondent:
Paltoo Ram Gupta

A. Civil Law - Limitation Act, 1963 -
Sections 5, 11, 17 - Limitation Act, 1963
- Article 123 - Limitation - Condonation
of delay

The appellants had filed a highly time barred
appeal on 22.1.2014 against the judgment
and decree dated 18.7.1987 on the ground
that the decree was obtained by playing fraud
by not impleading the appellants, therefore,
they had no knowledge of the judgment and
decree. On coming to know about the same
on 26.12.2013, when it was filed by the
respondent in an appeal u/s 11(2) of the U.P.
Consolidation of Holdings Act, the appeal was
filed therefore it was within time from the
date of knowledge. The learned appellate
Court has not considered the plea of fraud
raised by the appellants and the application
for condonation of delay in filing the appeal
has been rejected merely on the ground that
after passing of the judgment and decree
many cases were contested in various Courts
and revenue Court between the parties, but
has not considered that the appellants were
not party in the said suit and also whether the
said judgment and decree was brought before
the
Court
in
any
proceeding
by
the
respondent prior to 26.12.2013. (Para 12)

Limitation Act, 1963 -Section 17 and
Article 123 of the Period of limitation
will start to run from the date of
knowledge of contents of ex parte
decree and not from the date of mere
knowledge of ex parte decree. In case of
fraud, limitation starts from the date
when the fraud is discovered for the first
time
by
the
aggrieved
person.
On
discovery of fraud, suppression or omission of
fact, the authority is suo moto competent to
reopen the proceedings and the period of
limitation would start running from the date
of such discovery. (Para 15, 16, 17, 20, 24)

In case the decree has been obtained by
playing fraud the limitation would start from
the date of discovery of the fraud. It is
obvious also because unless a party comes to
know about the fraud played by the other
party he would not have any cause of action
to challenge the same. Similarly in the case of
ex parte decree unless the concerned party
comes to know about the ex-party proceeding
and decree passed against him he cannot
challenge the same. When a person has not
been impleaded in any proceeding it is not
expected that he would be knowing about the
proceedings unless it is specifically shown by
the other party as to how it was in the
knowledge of the person who is challenging
and when it was known to him. (Para 26)

In the present case Lower Appellate Court,
without
ascertaining
as
to
whether
the
appellants had any knowledge about the
passing of the decree before 26.12.2013, has
rejected the application while there was no
specific denial by the other side except that
many cases were contested between the parties
in regard to the property in question. It has
never been disclosed as to whether the
impugned judgment and decree was ever
brought before the appellants in any such
proceedings before 26.12.2013. (Para 27)

B. Limitation Act, 1963 - Section 5 -
Unless want of bona fides of such inaction
or negligence as would deprive a party of
the protection of S. 5 is proved, the