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Judgment
20 paragraphs · 359 words1) Challenge in this appeal is levied to the order dated 21.11.2017 of the Additional District Judge, Gariyaband, District Gariyaband in Civil Suit No.04-
A/2016, whereby and whereunder he dismissed the Appellant's application filed under Section 26 of the Hindu Marriage Act, 1955 (hereinafter
referred to as 'the Act, 1955').
2) The Appellant has filed an application under Section 13 of the Act, 1955 for dissolution of the marriage solemnized between him and the
Respondent in accordance to Hindu Marriage Act on the ground of cruelty, inter-alia the Appellant filed an application under Section 26 of the Act,
1955 to obtain the custody of minor male child, Parveen, whose date of birth is 02.03.2010. Trial Court rejected the aforesaid application. Being
aggrieved, the Appellant preferred this appeal.
FAM 32 of 2018
3) As per provisions of Section 28(2) of the Act, 1955, an interim order passed under Section 25 or Section 26 of the Act, 1955 is not appealable.
4) In Annapurna Dei vs. Nabakishore Singh; AIR 1965 Orissa 72 and in Harulal Dasgupta vs. Smt. Saudamini Misra; AIR 1985 Orissa 239, the
learned Single Judge of the Orissa High Court has held that interim order passed under Section 26 of the Act, 1955 is not appealable.
5) In the case in hand, the impugned order is an interim order and not the final order. Matter is still pending consideration before the trial Court.
6) Looking to the aforesaid facts and circumstances and judicial precedents laid down by the learned Single Judge of the Orissa High Court, this Court
finds that this appeal is not maintainable because the impugned order is an interim order and not the final order.
7) At this stage, the learned counsel for the Appellant prayed that the appeal may be dismissed as withdrawn with liberty to file appropriate petition
before competent jurisdictional forum seeking the relief.
8) Accordingly, the appeal is dismissed as withdrawn with liberty as prayed for.
FAM 32 of 2018
9) Certified copy of the impugned order filed along with the appeal should be returned back to the Appellant after retaining the photocopy of the same.
10) Certified copy today itself.