Back
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
SHARAD KUMAR GUPTA, J.
Khilendra, son of Heeraram Sahu - Appellant
Versus
Smt. Purnima - Respondent
First Appeal (M) No. 32 of 2018
Decided On : 18-04-2018
Hindu Marriage Act, 1955 - Appeal against interim order - Appeal dismissed as interim order not appealable
Fact of the Case:
The Appellant filed an application under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage and under Section 26 for custody of minor child. The trial court rejected the application. The appeal was filed against this order.
Finding of the Court:
The court found that the appeal was not maintainable as the impugned order was an interim order and not the final order. The appeal was dismissed as withdrawn with liberty to file an appropriate petition before the competent jurisdictional forum.
Issues: Appeal against interim order, maintainability of the appeal
Ratio Decidendi: The court relied on judicial precedents and the provisions of Section 28(2) of the Hindu Marriage Act, 1955 to determine the maintainability of the appeal against the interim order.
Final Decision: The appeal was dismissed as withdrawn with liberty to file an appropriate petition before the competent jurisdictional forum.
1. Challenge in this appeal is levied to the order dated 21.11.2017 of the Additional District Judge, Gariyaband, District Gariyaband in Civil Suit No.04-A/2016, whereby and whereunder he dismissed the Appellant's application filed under Section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955').
2. The Appellant has filed an application under Section 13 of the Act, 1955 for dissolution of the marriage solemnized between him and the Respondent in accordance to Hindu Marriage Act on the ground of cruelty, inter-alia the Appellant filed an application under Section 26 of the Act, 1955 to obtain the custody of minor male child, Parveen, whose date of birth is 02.03.2010. Trial Court rejected the aforesaid application. Being aggrieved, the Appellant preferred this appeal.
3. As per provisions of Section 28(2) of the Act, 1955, an interim order passed under Section 25 or Section 26 of the Act, 1955 is not appealable.
4. In Annapurna Dei vs. Nabakishore Singh; AIR 1965 Orissa 72 and in Harulal Dasgupta vs. Smt. Saudamini Misra; AIR 1985 Orissa 239, the learned Single Judge of the Orissa High Court has held that interim order passed under Section 26 of the Act, 1955 is not appealable.
5. In the case in hand, the impugned order is an interim order and not the final order. Matter is still pending consideration before the trial Court.
6. Looking to the aforesaid facts and circumstances and judicial precedents laid down by the learned Single Judge of the Orissa High Court, this Court finds that this appeal is not maintainable because the impugned order is an interim order and not the final order.
7. At this stage, the learned counsel for the Appellant prayed that the appeal may be dismissed as withdrawn with liberty to file appropriate petition before competent jurisdictional forum seeking the relief.
8. Accordingly, the appeal is dismissed as withdrawn with liberty as prayed for.
9. Certified copy of the impugned order filed along with the appeal should be returned back to the Appellant after retaining the photocopy of the same.
10. Certified copy today itself.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
