Revision of Interim Maintenance – The Quandary

Can a revision petition be allowed against an order on interim maintenance?

This question has repeatedly popped up in the judgments of various High Courts, including the recently reported single bench judgment of the Madhya Pradesh High Court in M.Cr.C. No. 60364/2022, titled Rajendra Kumar v. Smt. Rukhmani Bisen, wherein the Hon’ble judge observed that the petitioner could prefer a revision petition against an order of interim maintenance made by the Family Court under Section 125 of the CrPC. At first look, this issue seems hardly controvertible and in practice, numerous Courts routinely allow/reject the revision against such orders of interim maintenance without delving into the question of maintainability.

But if followed closely, one would notice that this issue is as hazy as the other oft-reported questions like the anticipatory bail to a child in conflict with the law or child marriage under Muslim Law. The High Courts have divergent views, and the Supreme Court has yet to settle the matter.

But why all the debate on this simple question? It is because the courts have remained divided on whether an order of interim maintenance under Section 125 of the CrPC or, for that matter, under the Domestic Violence Act or the Hindu Marriage Act, qualifies as an interlocutory order. If it is like an interlocutory order, then Section 397(2) of the CrPC, as well as Sections 19(4) & 19(5) of the Family Courts Act, 1984, expressly bar the revision of such an order. If it is not an interlocutory order, then the revision can be allowed.

Confusion Between High Courts

So the aforesaid question has seen High Courts across the country taking different positions even from the coordinate benches of their court. While the Division Bench has sometimes stepped in to clear the positions in some High Courts, the other places have merely been following the set practice unless specifically objected to and called upon to give a view on this. Some have also taken the route of differentiating between statutes under which the order of interim maintenance has been granted to rule whether a revision can be allowed. The following table is illustrative, to give an idea of the confusion brought forth by this issue:

S. No.	Case Title	Forum	Provision	Bench	Interlocutory Order or Not
	Mamta Vaidya v. Ashok Vaidya (1991)	Bombay HC	125 CrPC	Single	Interlocutory
	Joaquin Anthony D’Souza v. Milin Rosy D’Souza (2009)	Bombay HC	125 CrPC	Single	Not interlocutory
	Sunil Hansraj Gupta v. Payal Sunil Gupta (1991)	Bombay HC	Hindu Marriage Act	Division	Interlocutory
	Manish Aggarwal v. Seema Aggarwal & Ors. (2012)	Delhi HC	125 CrPC & Hindu Marriage Act	Division	Not Interlocutory
	Aakansha Shrivastava v. Virendra Shrivastava & Anr. (2010)	Madhya Pradesh HC	125 CrPC	Division	Not Interlocutory
	Sunil Kumar Sabharwal v. Neelam Sabharwal (1990)	Punjab & Haryana HC	125 CrPC	Division	Not Interlocutory
	John K Eapen v. K. Susamma Zacharia (2019)	Kerala HC	125 CrPC	Single	Interlocutory
	Mukhtar Ali v. Judge, Family Court, Allahabad (1998)	Allahabad HC	125 CrPC	Single	Not Interlocutory
	Kiran Bala Srivastava v. Jai Prakash Srivastava (2004)	Allahabad HC	Hindu Marriage Act	Full Bench	Not interlocutory
10.	Ashu Dhiman v. Smt. Jyoti Dhiman (2018)	Uttarakhand HC	125 CrPC	Single	Not Interlocutory
11.	Sulochana Devi v. State of Bihar (2019)	Patna HC	125 CrPC	Single	Interlocutory
12.	Uttam Kumar Choubey v. Kiran Devi (2005)	Jharkhand HC	125 CrPC	Single	Interlocutory
13.	Samistha Dewan Ghosh v. Milanmoy Dewan (2020)	Tripura HC	125 CrPC	Single	Not Interlocutory
14.	Ajay Sharma v. Anju Sharma (2017)	Chhatisgarh HC	125 CrPC	Single	Not Interlocutory
15.	Rajesh Saha v. Jhume Saha (2017)	Gauhati HC	125 CrPC	Single	Interlocutory
16.	Priya Lodh v. Subhankar Lodh (2015)	Calcutta HC	125 CrPC	Single	Interlocutory
17.	Minor Anu Atul v. Ratan Lal Sharma (1993)	Rajasthan HC	125 CrPC	Division	Interlocutory
18.	Amir Khan v. State of Rajasthan (2019)	Rajasthan HC	Domestic Violence Act	Single	Not Interlocutory
19.	Ariokiasmy v. Helen Jency (2022)	Madras HC	Domestic Violence Act	Single	Interlocutory
20.	P. T. Lakshman Kumar v. Bhavani (2013)	Madras HC	Hindu Marriage Act	Single	Not Interlocutory

The abovementioned table is in no way exhaustive and is only meant to give a broad idea about the confusion that exists in this area. The table documents varied views from 15 different High Courts of the country on a single issue of whether the order on interim maintenance qualifies as interlocutory. It is not like this is a dark space with no light to show the way. The Supreme Court has laid down in detail several judgments about what qualifies as an interlocutory order, and the High Courts haven’t shied from citing those judgments. Yet the conclusions reached are starkly contradictory to each other.

Meaning of Interlocutory Orders

The CrPC or any other procedural law statute fails to put a definition for an ‘interlocutory order’. The Supreme Court of India's several judgments have tried to give an idea about what qualifies as an interlocutory order, but it has often seemed self-contradictory in its stance, thereby deciding the question of the nature of the order as per the facts and circumstances surrounding the question.

In Amar Nath & Ors. v. State of Haryana & Anr. (1977), the court opined through the majority opinion of Justice S. M. Fazal Ali that

“the term ‘interlocutory order’ in S. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the, 1973 Code.”

Then a few months later, in the case of Madhu Limaye v. State of Maharashtra (1977), the apex court rejected the commonly understood meaning of ‘interlocutory order’ as a converse of the final order. The court very smartly concluded that there may be ‘intermediate orders’ passed during a proceeding that may not fall in either of the water-tight compartments of ‘final order’ or ‘interlocutory order’ and therefore, it could not be the intention of the legislature to bar the revision from such orders. An important observation made by the court therein was that,

“a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to a part. The meaning of the two words must therefore be considered separate about to the particular purpose for which it is required.” The court further points out that

“an interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.”

Another landmark apex court judgment that dealt with the meaning of ‘interlocutory order’ was V. C. Shukla v. State (through CBI) (1979). The majority opinion was authored by Justice S. M. Fazal Ali again, but this time it was held that the interpretation of the term ‘interlocutory order’ has to be strict when read in terms of a special statute that carries a non-obstante clause and expressly bars the applicability of the CrPC. Thus, regarding the special statutes, the natural meaning of ‘interlocutory order’ has to be understood, i.e., in contradistinction to a final order. Further,

“to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue, because, the term ‘interlocutory order’ in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders.”

Therefore, the separate category of ‘intermediate orders’ created by Madhu Limaye (supra) was diluted here to be subserved in the ‘interlocutory orders’ category.

It is the above-mentioned indecisive and somewhat ad-hoc approach that is the root of the problem surrounding the issue of classifying the interim maintenance order as interlocutory or interim or final. While the High Courts are reading the same judgments, they are being selectively applied and interpreted as per the facts of the case in hand and thus resulting in differing opinions.

Different Interpretations

The courts in favour of allowing revision of the interim maintenance orders have opined that such orders “substantially affect the rights and liabilities of the parties”, even if it only concerns a particular aspect of the entire case. Instead of falling into the trap of specifying the exact nature of an interim maintenance order, the courts have mostly adjudged it to be ‘not interlocutory’ in nature while being less concerned about calling it ‘interim’ or ‘intermediate’ or ‘final’.

It has sometimes been held that the orders fixing maintenance pendent lite under Section 24 of the Hindu Marriage Act are like a judgment, as they are separate proceedings that ‘conclusively determine’ the rights of the parties and may not have a bearing on the ultimate order. The orders under Section 23 of the Domestic Violence have been treated similarly.

The courts on the other hand, while holding the interim maintenance orders to be interlocutory, have depended on a separate set of reasons. One of the explanations has been that Section 125 CrPC is in itself merely a preventive remedy, rather than being remedial or punitive. The order made thereunder can be modified or cancelled at a subsequent stage by the court.

This means that the interim maintenance provides only for a ‘provisional arrangement’ and doesn’t provide for a full and final determination of the status and personal rights of the parties, which may be decided later when the proceedings for maintenance are terminated. Therefore, it has to be interpreted as an interlocutory order.

The courts have even gone ahead to look at the dictionary meaning of the word ‘interim’, which is “in meantime” or “meanwhile”, to say that the interim maintenance cannot be said to be ‘final’ in its essence. Further, under the Hindu Marriage Act, the order of interim maintenance is found to be passed only during the progress of the main petition of divorce and thus doesn’t dispose of the rights and liabilities raised in the main petition.

Conclusion

The view of this author is that the courts must lean towards the argument of holding the order on interim maintenance as not interlocutory. The family courts of the country are heavily burdened with matrimonial disputes and the common thread running through all of those cases is the issue of maintenance. These cases sometimes take several years to conclude, and thus the only meaningful determination that happens in the meanwhile is of the issue of interim maintenance.

However, since generally no evidence is led or appreciated till the stage of ordering interim maintenance, the courts have a chance of making an error in terms of the amount of interim maintenance.

What eventually happens is that after years of litigation, the parties tend to settle the matter amongst themselves, but till then, the amount of interim maintenance has already turned out to be a punishment for the husband and a bonanza for the wife. It is, therefore, necessary to grant the right of revision and appeal against an order of interim maintenance to ensure that an effective remedy remains in the hands of the parties for ruling out any perceived injustice meted out to them.

Thankfully, no statute has expressly defined the word ‘interlocutory order to encompass an order of interim maintenance under any provision and thereby bar the remedy of revision. The bar on the revisionary powers of the court has to be understood in terms of the specific purpose of that bar, and the procedural law shouldn’t be allowed to defeat a substantive right or remedy. Therefore, it is essential for the apex court to quickly give an authoritative ruling on this issue and put the conundrum to rest.

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