The High Court's power of interference under Article 227 of the Constitution cannot be utilized to achieve a purpose which has been expressly negatived by a competent piece of legislation.

A.K.GANGULY, J.

1. The subject-matter of challenge in this writ petition is an order dated 3rd January, 1995 passed by the Principal Judge, Family Court, Patna. By the said order the Principal Judge, Family Court, Patna passed an order on the petition of the husband under Sec. 26 of the Hindu Marriage Act for the custody of the child. The concluding portions of the said order about the custody of the child are set out :

"In view of the above, the petition of the petitioner u/S. 26 of the Hindu Marriage Act is allowed and the father petitioner is held entitled to the custody of the child Vibhav. The mother respondent is directed to hand over the child Vibhav to the petitioner, but it is further directed that during holidays i.e. summar vacation and Durga Puja vacation the child Vibhav will remain with the mother respondent. The father petitioner will produce the child in the Court before the beginning of the school holidays for handing over to the mother and after the holidays are over the mother will produce the child in the Court to be handed over to the father. The father petitioner will also produce the child Vibhav in Court on every alternate date so that the mother respondent may meet the child. If any of the parties will violate the order of the Court he or she will sufffer the consequence either by dismissal of the suit or by striking out of the defence as the case may be. This order will remain operative till the disposal of the case so that the trial Court may pass final order at the time of final disposal of the case concerning the child on the basis of better evidence on the record."

2. Initially against the said order one Misc. Appeal being Misc. Appeal No. 32 of 1996 was filed by the wife. Along with the said Misc. Appeal, she also filed another writ petition being CWJC No. 1174 of 1996 (Smt. Usha Kumari V/s. The Principal Judge, Family Court, Patna) challenging the said order and with a prayer of analogous hearing.

3. Mrs. Sheema Ali Khan, learned counsel appearing fo the wife who is the petitioner in this writ petition submits, on instructions, that the other writ pettion being CWJC No. 1174 of 1996 has been withdrawn.

4. Challenging the maintainability of the Misc. Appeal objection was raised on behalf of the husband-respondent inter-alia on the ground that the order appealed against being an interlocutory order, no appeal lies against the same. After the matter was adjourned for a few days, a Division Bench, before whom the appeal was pending, by an order dated 10th July, 1996 came to the finding that the Misc. Appeal is not maintainable under Sec. 19(1) of the Family Courts Act, 1984 even then the order appealed against was stayed by the same Division Bench. The learned Judges of the Division Bench relying on the observations of the Supreme Court quoted in the judgment of Raj Kumar Srivastava V/s. Smt. Anjana Sinha, reported 1996 (1) Pat LR 563, came to the conclusion that this Misc. Appeal should be coverted into a writ petition under Article 227 of the Constitution of India inasmuch as this is an extraordinary case and that the High Court should interfere in order to rectify a grave injustice caused. So the Division Bench directed the matter to be placed before the appropriate learned single Judge taking up writ petition. Thereafter the matter was placed before a learned single Judge on 28-8-1996 and the matter was admitted by the learned single Judge and some orders have been passed and the matter has been kept pending in this Court for more than a year.

5. With great respect to the learned Judges of the Division Bench, this Court is of the view that the order dated 10th July, 1996 passed by a Division Bench converting this Misc. Appeal into a writ petition, after holding that the Misc. Appeal is not maintainable, has not been passed with due regard with the provisions of the Family Courts Act and also the scope of interference of the High Court under Article 227 of the Constitution of India.

6. In