V.M.Sahai, Sabhajeet Yadav - (1.) -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 under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred as the 'Act 1955') is heard by District Judge whether an appeal under Section 19 (1) of the Family Courts Act or a revision under Section 115, C.P.C. or a writ application under Article 227 of the Constitution of India would lie.
(2.) THE stamp reporter had submitted two reports on 17.11.2008 and 20.11.2008 that appeal would not lie under Section 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 under Section 13 of the Act, 1955 for divorce against the respondent. In the suit an application dated 28.5.2008 under Section 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 under Section 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 under Section 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, under Section 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."
(3.) 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 under Section 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 under Section 28 of the Act, 1955 as the appeal under said Section is provided against an order under Section 25 or 26 of the said Act only. Therefore, we cannot assume that an appeal against an order under Section 24 would also lie under Section 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 under Section 24 of the Act, 1955 under his original civil jurisdiction could be challenged either under Section 115, C.P.C. or it could be challenged under Article 227 of the Constitution of India.;