Ramrao Singh vs Usha Singh

B. Amit Sthalekar, J.—I have heard Sri Arvind Kumar Singh, learned counsel for the appellant and Sri Istiyaq Ali, learned counsel for the respondent. This appeal has been filed u/s 28 of the Hindu Marriage Act, 1955 against the impugned judgment dated 2.7.2011 passed u/s 24 of the Hindu Marriage Act, 1955. The provision of appeal under the Hindu Marriage Act, 1955 (hereinafter referred to as the ''Act'') is laid down u/s 28 of the Act which reads as under:

Appeals from decrees and orders.--(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of subsection (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie 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 u/s 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 [ninety] days from the date of the decree or order.

From a perusal of the provisions of Section 28 of the Act, it is clear that no appeal lies against an order passed u/s 24 of the Act. It is not disputed by the learned counsel for the appellant or by Sri Ishtiyaq Ali, learned counsel for the respondent that proceedings u/s 13 of the Act for divorce are still pending in the Civil Court. It is also admitted by both the parties that these are not proceedings u/s 19 of the Family Court Act.

Learned counsel for the appellant has placed reliance upon the Full Bench decision of this Court in Kiran Bala Srivastava (Smt.) v. Jai Prakash Srivastava, 2006 All CJ 1936. Proceedings in that case arose under the Family Court Act and it was against an order passed u/s 24 of the Hindu Marriage Act, 1955, that the appeal was filed u/s 19 of the Family Court Act. Present proceedings are not under the Family Court Act but u/s 28 of the Hindu Marriage Act, 1955.

Even otherwise the appeal under the Family Court Act is cognizable by a Division Bench as per the provisions of the Act itself. In view of the above legal position, the present appeal u/s 28 of the Hindu Marriage Act, 1955 is not maintainable and is accordingly dismissed.