# Ravi Saran Prasad alias Kishore v. Smt. Rashmi Singh

- **Citation:** (2001) 2 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-02-16
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-saran-prasad-alias-kishore-v-smt-rashmi-singh-39835
- **Pages:** 4

## Text

2All] Ravi Saran Prasad alias Kishore V. Smt. Rashmi Singh

142
unless the petitioner surrenders he cannot
challenge the impugned detention order.

5. In our opinion there cannot be any
absolute proposition in law that a person
challenging a detention order under the
N.S.A. or COFEPOSA must in all cases
surrender before he can file a petition. In
our country Article 21 of the Constitution
guarantees the right to life and liberty and
this is the most Important of all
fundamental
rights
provided
in
the
Constitution. Hence, individual liberty is
not to be lightly interfered with, and
hence, there cannot be any absolute
proposition that a detention order can
never
be
challenged
without
first
surrendering before the authorities. It all
depends on the facts of each case and no
absolute proposition can be laid down in
this connection.

6.

Learned
counsel
for
the
respondents then submitted that a person
sought to be detained has no right to get a
copy of the grounds of detention before
his arrest and detention. Since we have
already observed that there cannot be any
absolute legal proposition that a detention
order can never be challenged without
first surrendering before the authorities, it
follows as a corollary that the ground for
detention
can
be
communicated
by
annexing the same in the counter affidavit
to be filed by the Government in such
cases. Since copy of the counter affidavit
will be served on the learned counsel for
the petitioner this itself will tantamount to
communication of the grounds to the
detenu because the learned counsel for the
petitioner can communicate these grounds
annexed to the counter affidavit, to the
petitioner.

7. On the facts and circumstances of
the case we direct that till the next date of
listing the petitioner shall not be arrested
in pursuance of the impugned detention
order dated 16.2.2001.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001

143
By the Court

In this Appeal under Section 19 (1)
of the Family Courts Act, 1984, the
husband assails validity of an order dated
5th March,2001 passed by Sri R.B.
Pandey, Judge, Family Court, Agra in
Suit No.446 of 1998 allowing the
application dated 3rd May, 1999 filed by
the Respondent-wife under Sections 24/26
of the Hindu Marriage Act, 1955
commanding the Appellant to pay a sum
of Rs. 1200/- (Rs. 800/- per month for her
and Rs. 400/- per month for their son) for
maintenance with effect from the date of
her application, besides a lump sum of Rs.
1500/-towards litigation expenses.

2. The office has raised an objection
that in view of Section 19 (5) of the
Family Courts Act this appeal is not
maintainable.

3. Sri Anupam Kulshrestha, learned
counsel for the Appellant, contests the
objection aforementioned by submitting
the true it is that the impugned order was
passed under Section 24 of the Hindu
Marriage Act but in view of the Division
Bench decision of the Madhya Pradesh
High
Court
in
Raghvendra
Singh
Choudhary Versus Smt. Seema Bai AIR
1989 Madhya Pradesh 259 holding that an
appeal will lie against an interlocutory
order, if it is a judgement and that the
order passed under Section 24 of the
Hindu Marriage Act is a judgment as it
decides the question of maintenance
during the pendency of the suit, therefore,
there is a final adjudication.

4. Having regard to the provisions as
contained in Sections 28 of the Hindu
Marriage Act, 1955 and 19 (1) and (5) of
the Family Courts Act, 1984 and the
object of this Act as stated in the Bill that
only one appeal shall lie and that too
before the High Court we respectfully
differ from the ratio laid down by the
Madhya Pradesh High Court which in its
turn has placed reliance on a Bombay
High Court Judgment in Dinesh Gijubhai
Mehta Versus Smt. Usha Dinesh Mehta
AIR 1979 Bombay 173 and the Hon'ble
Supreme
Court's
decision
in
Shah
Babulal Khimji V. Janyaben D. Kania
AIR 1981 S.C. 1786, the last one is
clearly distinguishable.

5. Section 24 of the Hindu Marriage
Act, under which the order in question has
been passed, reads thus :-

"24. Maintenance pendente lite and
expenses of proceedings - Where in any
proceeding under this Act it appears to the
court that either the wife or the husband,
as the case may be, has no independent
income sufficient for her or his support
and the necessary expenses of the
proceeding,it may, on the application of
the wife or the husband, order the
respondent to pay to the petitioner the
expenses of the proceeding, and monthly
during the proceeding such sum as,
having regard to the petitioner's own
income and the income of the respondent,
it may seem to the court to be
reasonable."

6. It is well settled that appeal and/or
revision is a creature of statute. Section 28
of the Act aforementioned reads thus :-

"28. Appeals from decrees and
orders - (1) All decrees made by the court
in any proceeding under this Act shall,
subject to the provisions of sub-section
(3), be appealable as decrees of the court
made in the exercise of its original civil
2All] Ravi Saran Prasad alias Kishore V. Smt. Rashmi Singh

144
jurisdiction, and every such appeal shall
lie to the court to which appeals ordinarily
from the decisions of the court given in
the
exercise
of
its
original
civil
jurisdiction.
(2) Orders made by the court in
any proceeding under this Act under
section 25 or section 26 shall, subject to
the provisions of sub-section (3), be
appealable if they are not interim orders,
and every such appeal shall lie to the
court to which appeals ordinarily lie from
the decisions of the court given in
exercise of its original civil jurisdiction.
(3) There shall be no appeal under
this section on the subject of costs only.
(4) Every appeal under this section
shall be preferred within a period of thirty
days from the date of the decree or order."

Apparently
the
Legislature
has
excluded preference of an appeal under
the Act aforementioned against an order
passed under Section 24 of the Act.

7. The Bill for enactment of the
Family
Courts
Act,
interlia,
stated
providing of only one right of appeal
which shall lie to the High Court and the
parliament enacted the Family Courts Act
in 1984, Section 19 of which Act reads
thus:-
"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 judgment or order, not
being an interlocutory order, of a Family
Court to the High Court both on facts and
on 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."

A conjoint reading of sub section (1)
and Sub-Section (5) makes us crystal
clear that only one appeal lies to the High
Court; that no appeal or revision lies
except as provided under Sub-section (1)
from any judgment, order or decree of a
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

145
Family Court; and further that no appeal
lies against such judgment or order which
is interlocutory. It cannot be said that the
Legislature has created an appellate form
in 1984 against the orders passed under
Section 24 of the Hindu Marriage Act
nullifying Section 28 of that Act contrary
to the object of enactment of the Act as
stated in the Bill.

8. Thus, we uphold the objection of
the Stamp Reporter that this appeal is not
maintainable under Section 19 (1) of the
Family Courts Act, 1984 and dismiss it as
not maintainable.

9. It is needless to clarify that it will
be open for a litigant like the Appellant to
knock the doors of this Court under
Article 226 and /or Article 227 of the
Constitution of India provided a suitable
case for interference is made out against
an order passed under Section 24 of the
Hidnu Marriage Act.

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By the Court

1. Heard learned counsel for the
parties.

2. The petitioner is presently posted
as S.O. police station Pachokhara district
Firozabad. The incident in question
occurred on 12/13.10.1993 when a Sikh
person Harjeet Singh was killed in a
police encounter by a police party and an
F.I.R. was lodged on 13.10.1993 being
case crime no. 327 of 1993 at police
station puwayan, district Shahjahanpur. It
is alleged in paragraph 5 of the writ
petition that after investigation the police
submitted a final report before the
Magistrate concerned and the same was
accepted on 29.5.1995 vide Annexure 2 to
the writ petition.

3. It appears that a writ petition was
filed in the Punjab and Haryana High
Court by the father of deceased Harjeet
Singh asserting that his son had been
picked up by the Punjab Police which
handed him over to the U.P. Police and
thereafter he was killed in Shahjahanpur
in U.P. in a false encounter. True copy of
the judgment of the Punjab High Court
dated 27.5.1998 is Annexure 3 to the writ
petition. The Punjab High Court directed
an investigation by the C.B.I. to enquire
and investigate the circumstances leading
to the killing of Harjeet Singh and to
submit a report before the High Court