Appeal U/S.19 Of Family Courts Act Will Not Lie Against Interlocutory Order; Only Remedy Is Under Article 227 Of Constitution: Jharkhand High Court

The Petition before the High Court was filed under Article 227 of the Constitution of India to quash the order passed by the Family Court directing the petitioner to pay a sum of Rs 2,000 per month as pendente lite.

The Single Bench of Justice Sanjay Kumar Dwivedi held, “In view of above discussions when the provisions of Section 19 of the Family Court’s Act are interpreted keeping the aforesaid principles in mind, it is clear that no appeal against an order passed as an interlocutory order can be filed under Section 19 of the Family Court’s Act and in view of that the petition under Article 227 of the Constitution of India is maintainable.”

Advocate Baibhaw Gahlaut represented the Petitioner while Advocate Sudhanshu Shekhar represented the Opposite Party.

Arguments

The opposite party raised a question about the maintainability of the petition under Article 227 of the Constitution of India on the ground that since the order of interim maintenance was passed by the Family Court, Bokaro under Section 24 of the Hindu Marriage Act, 1955, then in light of Section 19 of Family Courts Act only appeal would lie against the said order.

It was the Petitioner’s case that the order itself speaks of interim maintenance and in view of that it is an interlocutory order, as such only petition under Article 227 of the Constitution of India could be maintained.

Reasoning

The Bench explained that if any order passed by the Family Court decides any question between the parties which directly affects the decision in the main case or which finally decides any collateral issue in perpetuity, it would be a judgment or order which is appealable but if an order, though deciding an issue between the parties finally, is temporary and interim and has no bearing or effect on the rights of the parties or the main issue involved in the case, it would fall within the parameters of an interlocutory order.

Coming to the impugned order passed by the Family Court, the Bench observed that the said application had not been finally decided and the right to claim maintenance was still alive as by way of interim arrangement only the said order had been passed and in view of that the claim maintenance still remained alive.“...what has been discussed here-inabove it is crystal clear that the said order is interlocutory in nature as the maintenance case is still alive and if the order is interlocutory in nature a party cannot be left remediless as in view of the fact that under Section 19 of the Family Court’s Act, 1984 appeal will lie, however at the same time the appeal is barred if the order is interlocutory in nature and in light of that Article 227 of the Constitution of India are available to any person aggrieved by the order”, the Bench said.

“The tenor of the order clearly speaks that it was interim in nature as it was directed to pay Rs.2,000/- pendente lite to the sole opposite party”, it added.

Referring to the judgment in Capt. Ramesh Chandra Kaushal versus Veena Kaushal and Others (1987), the Bench said, “In view of the above, there are direct judgment of Hon’ble Supreme Court in the case of Capt. Ramesh Chandra Kaushal versus Veena Kaushal and Others (supra) as well two Full Courts Judgments of Hon’ble Patna High Court and Madhya Pradesh High Court which clearly held that if an order is interlocutory, the appeal under Section 19 of Family Court’s Act will not lie and only remedy is under Article 227 of the Constitution of India and it is further well settled that if a Full Court’s judgment is there that is binding upon other High Courts as has been held by Hon’ble Supreme Court in the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra, reported in (2005).”

It further said, “In view of above facts, reasons and analysis the Court finds that since the order in question is interlocutory the petition under Article 227 of the Constitution of India is maintainable.”

Coming to the issue of maintenance, the Bench noted that the petition under Section 23 of the Protection of Women from Domestic Violence Act, 2005 was decided by the Court holding that the petitioner herein is suffering from Cancer and has been undergoing treatment since the year 2016. The sole opposite party had admitted that she was residing at Mumbai and was earning her livelihood. The Court had also held that she is capable of maintaining herself for her livelihood and in view of that claim under the Domestic Violence Act had been rejected and that order has attained finality.

During the pendency of that petition another petition was filed under the Hindu Adoption and Maintenance Act, which is still pending and the Court had passed interim order of maintenance pendente lite to the tune of Rs.2,000 per month. Reiterating that once the party has chosen his remedy under the particular statute, he is required to take remedy under that statute and at early stage the remedy cannot be altered, the Bench set aside the impugned order.

The Petition was thus disposed of and the Bench ordered, “The learned court will now decide the application pending before that Court under the Hindu Adoption and Maintenance Act, 1956 incorporating the further issue as to whether the party who has chosen his remedy can alter the remedy further by way of choosing another statute or no.”

Cause Title: X v. Y (Case No.: C.M.P. No. 457 of 2024)

Appearance:

Petitioner: Advocates Baibhaw Gahlaut, Rajiv Ranjan, Subhneet Jha

Respondent: Advocates Sudhanshu Shekhar, Kaustav Roy

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