Sunil Pathak vs Gunja alias Gunjan Pandey

V.M. Sahai and Sabhajeet Yadav, JJ.—The short question that arises for consideration in this appeal is that in a district where family court, under the Family Courts Act, 1984, had not been established and the application u/s 24 of the Hindu Marriage Act, 1955 (hereinafter referred as the ''Act 1955'') is heard by District Judge whether an appeal u/s 19(1) of the Family Courts Act or a revision u/s 115, C.P.C. or a writ application under Article 227 of the Constitution of India would lie.

The stamp reporter had ''submitted two reports on 17.11.2008 and 20.11.2008 that appeal would not ''lie u/s 19(1) under the Family Courts Act against an order passed by the District Judge, Ghazipur as no family court has been established in the district.

The facts in brief are that appellant/husband has filed Marriage Suit No. 14 of 2008 before the District Judge, Ghazipur u/s 13 of the Act, 1955 for divorce against the respondent. In the suit an application dated 28.5.2008 u/s 24 of the Act, 1955 was filed by the respondent/wife claiming Rs. 4,000 towards litigation expenses and Rs. 2,000 per month as ad interim maintenance. The husband filed his objection to this application. The Additional District Judge, Ghazipur by his order dated 15.10.2008 allowed the application u/s 24 of the Act, 1955 and awarded Rs. 500 per month as interim maintenance and Rs. 2,000 towards litigation expenses to the respondent/wife. It is this order dated 15.10.2008, which has been challenged by the appellant in this appeal filed u/s 28 of the Hindu Marriage Act read with Section 19(1) of Family Courts Act, 1984.

For better understanding of the case it is necessary to extract Section 19(1) of the Family Courts Act, 1984 and Section 28 of the Hindu Marriage Act, 1955 as below:

Section 19(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.

Section 28-(1) "All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (2), 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 decision of the Court given in the exercise of its original 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.

It is not disputed by learned Counsel for the appellant that in District Ghazipur no family court had been constituted under the Family Courts Act, 1984. Section 8 of the Family Courts Act, 1984 excludes the jurisdiction of District Court or any Subordinate civil court referred to in Section 7(1) of the Family Courts Act in relation to the area where the family court had been established. But in those districts where family courts have not been established, the Jurisdiction to entertain and try matrimonial petition would lie to District Court as original civil jurisdiction. Since the Additional District Judge while deciding the application u/s 24 of the Act, 1955 has passed impugned order under his original civil jurisdiction and the impugned order is not a decree and such an order is also not appealable u/s 28 of the Act, 1955 as the appeal under said Section is provided against an order u/s 25 or 26 of the said Act only. Therefore, we cannot assume that an appeal against an order u/s 24 would also lie u/s 28 of the Act, 1955 unless it was specifically provided by the Legislature.

But the questions still remains as to whether the order passed by Additional District Judge u/s 24 of the Act, 1955 under his original civil jurisdiction could be challenged either u/s 115, C.P.C. or it could be challenged under Article 227 of the Constitution of India.

A revision would lie to the High Court against an order passed by the District Court against which no appeal lies to the High Court and the revisional power could be exercised by the High Court in a case which has been decided by subordinate court in its original jurisdiction. A case may be said to be decided if the Court for the purpose of the suit decides some right or obligation of the parties finally about the controversy in dispute. An application for grant of ad interim maintenance u/s 24 of the Act, 1955 does not finally decide the controversy between the parties with regard to payment of maintenance to the wife and final order about maintenance can be passed u/s 25 of the Act, 1955 which is appealable u/s 28 of the said Act. Therefore, we are of the considered opinion that where the Additional District Judge or the District Judge in exercise of his original civil jurisdiction passes an order u/s 24 of the Act, 1955 granting ad interim maintenance in a district where Family Court had not been established, such an order granting ad interim maintenance would not be a case decided within the meaning of Section 115, C.P.C. and no revision would lie to the High Court against such an order.

While considering the cases where ad interim maintenance had been granted by a Judge, Family Court u/s 24 of the Act, 1955 in a district where family courts had been established under the Family Courts Act in Ravi Saran Prasad alias Kishore v. Smt. Rashmi Singh 2001 ACJ 610 : 2001 (2) AWC 1333 (DB) and Avadhesh Narain Srivastava v. Smt. Archana Srivastava 1990 (8) LCD 66 (DB) and Kiran Bala Srivastava v. Jai Prakash Srivastava 2006 ACJ 1936 (FB) and Smt. Kavita Gupta v. Sri Subhash Kumar Gupta 2007 (1) CRC 259 (DB), it has been held that an order granting pendente lite maintenance in a pending suit has been held to be a ''judgment'' and is appealable u/s 19(1) of the Family Courts Act, 1984, but in our opinion, that itself would not be sufficient to hold that judgment and order passed u/s 24 of the Act, 1955 would be revisable u/s 115 of C.P.C. Unless it comes within the ambit of a case decided by the subordinate court in exercise of its original civil jurisdiction.

Therefore, we are of the considerd opinion that neither an appeal u/s 19(1) of the Family Courts Act, 1984 nor u/s 28 of the Act, 1955 nor revision u/s 115, C.P.C. is maintainable where an order has been passed u/s 24 of Act, 1955 by Additional District Judge or District Judge exercising his original civil jurisdiction where family courts had not been established, but there must be a remedy to challenge an order granting ad interim maintenance. We are of the considered opinion that the order passed by Additional District Judge u/s 24 of the Act, 1955 under his original civil jurisdiction can be challenged by the appellant under the power of superintendence before the High Court under Article 227 of the Constitution of India.

In view of aforesaid discussion, there can be no scope for doubt to hold that the instant appeal filed by the appellant u/s 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 is not maintainable and the appeal is accordingly dismissed as not maintainable. However, it shall be open to the appellant to challenge the order passed u/s 24 of the Act, 1955 under Article 227 of the Constitution of India.

Office is directed to return the certified copy of the judgment dated 15.10.2008 and decree/formal order to the counsel for the appellant to enable him to seek his remedy at appropriate forum.