Smt. Suman vs Braj Kishore

Sanjay Misra, J.—This is an appeal u/s 28 of the Hindu Marriage Act 1955, against the judgment and order dated 16.11.2011 and decree dated 30.11.2011 passed in Case No. 774 of 2007, Brij Kishore vs. Smt. Suman, by Additional Civil Judge (Senior Division), Court No. 2, Bulandshahar. Stamp Reporter has reported that this appeal is not maintainable before this Court.

Learned counsel for the appellant has submitted that the plaintiff respondent had filed Original Suit No. 774 of 2007, u/s 13 of the Hindu Marriage Act, which has been decreed by the trial Court. According to him, since the proceedings were u/s 13 of the Hindu Marriage Act, the appeal u/s 19 of the Family Courts Act would not be maintainable. However, since it is a matrimonial dispute decided by the Civil Judge in the absence of establishment of Family Court in Bulandshahar, the appeal would lie to the High Court u/s 28 of the Hindu Marriage Act, as is provided u/s 19 of the Family Courts Act.

The question was considered by a Full Bench of this Court in the case of Kiran Bala Srivastava (Smt.) vs. Jai Prakash Srivastava (2006 A.C.J. 1936). The Full Bench considered the difference of an appeal u/s 19(1) of the Family Courts Act, which provided for an appeal against a judgement or order of the Family Court. It also considered the provision of Section 28 of the Hindu Marriage Act, which provides for an appeal against a decree or order. It was held that Section 28 of the Hindu Marriage Act does not provide for appeal against a judgment, therefore, the answer to the question referred to the Full Bench as to whether an appeal u/s 19 of the Family Courts Act would lie against an order passed u/s 24 of the Hindu Marriage Act was given in affirmative since the order u/s 24 granting pendente lite maintenance is a judgment and an appeal would therefore, lie u/s 19(1) of the Family Courts Act. Paragraph 21 of the said judgement of the Full Bench is quoted hereunder:

What noticeable in sub-section (1) of Section 19 of the Act of 1984, is that deviating from Section 96 of the Code of 1908 or from sub-section (1) of Section 28 of the Act of 1955, it provides for appeals against "judgment". The Code of Civil Procedure, 1908, does not provide for appeal against judgments. It provides for appeals against decrees and orders. Likewise Section 28 of the Act of 1955 also does not provide for appeals against judgments. It provides for appeals only against decrees [see: sub-section (1)] and against certain orders [see: sub-section (2)]. The question arises as to why the legislature made a departure by providing appeal against judgments also, under sub-section (1) of Section 19 of the Act of 1984. Not that the legislature was not aware of the established practice or did not know the meaning of the word judgment, as given by the Apex Court in Khimji''s case (supra).

The aforesaid clearly indicates that Section 28 of the Hindu Marriage Act does not provide for appeal against judgment. It provides for appeal only against decree and since an appeal u/s 19 of the Family Courts Act lies only against a judgment or order, no appeal would lie u/s 19 of the Family Courts Act against a decree. An appeal against a decree passed by the Civil Judge would lie u/s 28 of the Hindu Marriage Act.

Since in the present case the impugned judgment and decree have been assailed u/s 28 of the Hindu Marriage Act and the valuation of this appeal is Rs. 10,000/-, the pecuniary jurisdiction as well as appellate jurisdiction would not be with the High Court. An appeal against a decree passed by the original Court u/s 13 of the Hindu Marriage Act, would lie before the court of competent appellate jurisdiction.

In view of the aforesaid circumstances, the report of the Stamp Reporter is accepted and it is upheld. This appeal is not maintainable before the High Court. The appellant may avail his remedy u/s 28 of the Hindu Marriage Act before the competent court having appellate jurisdiction against decrees. The period, w.e.f. 16.11.2011 (the date when present appeal was presented before the Stamp Reporter) to 12.01.2012 i.e. today, shall be given benefit of for the purpose of limitation, in case the appeal is filed u/s 28 of Hindu Marriage Act against a decree by the appellant. This appeal is dismissed as not maintainable before this Court.

No order is passed as to costs.