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2026 Supreme(Raj) 343

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN MONGA, SUNIL BENIWAL, JJ.
Kaushlya Soni W/o Shri Ravikant Soni - Appellant
Versus
Ravikant Soni S/o Shri Shankar Lal Soni - Respondent
D.B. Civil Misc. Appeal No. 2040 of 2023, D.B. Civil Misc. Appeal Nos. 3476 of 2018, 202 of 2019, 2083 of 2019, 2746 of 2019, 1527 of 2020, 404 of 2022, 803 of 2022, 912 of 2022, 1227 of 2022, 1869 of 2022, 603 of 2023, 1107 of 2023, 1198 of 2023, 1210 of 2023, 1263 of 2023, 1277 of 2023, 1319 of 2023, 1567 of 2023, 1599 of 2023, 1690 of 2023, 1733 of 2023, 1817 of 2023, 1963 of 2023, 2010 of 2023, 480 of 2024, 875 of 2024, 1029 of 2024, 1045 of 2024, 1438 of 2024, 1538 of 2024, 2285 of 2024, 2331 of 2024, 2348 of 2024, 2387 of 2024, 2489 of 2024, 2525 of 2024, 2835 of 2024, 3308 of 2024, 3342 of 2024, 3357 of 2024, 3360 of 2024, 124 of 2025, 406 of 2025, 709 of 2025, 1238 of 2025, 1309 of 2025, 1364 of 2025, 1436 of 2025, 1449 of 2025, 2168 of 2025, 2275 of 2025, 2287 of 2025, 3166 of 2025, 3303 of 2025, 3333 of 2025, 3384 of 2025, 3385 of 2025, 3411 of 2025, 3413 of 2025, 3423 of 2025, 3445 of 2025, 3450 of 2025, 3463 of 2025, 3676 of 2025, 3681 of 2025, 3722 of 2025, 301 of 2026, 303 of 2026, 341 of 2026, 373 of 2026, 579 of 2026, 644 of 2026, 672 of 2026, 1329 of 2026
Decided On : 06-04-2026

Advocates Appeared:
For the Petitioner: Mr. Muktesh Maheshwari, Ms. Akshita Depura, Ms. Mansi Pipal, Mr. C.P. Soni, Mr. Arpit Mehta, Mr. Mrinal Khatri, Mr. Priyansh Bohra, Mr. Kapil Purohit, Mr. Pradeep Bhakar, Mr. Dhruv Chandra, Mr. Sheetal Kumbhat, Mr. Himanshu Bumb, Mr. Manoj Kumar Pareek, Mr. Kunal Singh Rathore, Mr. Bala Ram Choudhary, Mr. Dilip Kumar Joshi, Mr. Kshitij Vyas, Mr. Abhijeet Joshi, Mr. Mahip Raj Singh Malawat, Mr. Danish Sherani, Mr. Bhawani Singh, Mr. Gajendra Singh, Mr. P.D Bohra, Mr. D.S. Gaur
For the Respondent: Mr. S.S Rathore, AAG with Mr. Pravin Kumar Choudhary, Dr. Jaya Dadhich, Mr. Keshar Singh Chouhan, Ms. Ayushi Rathore, Mr. Jitendra Choudhary with Mr. Nishant Gaur, Mr. Vikram Sharma, Mr. Niranjan Singh Shekhawat, Mr. D.S Gaur

Judicial discipline requires that courts refrain from adjudicating jurisdictional issues currently under reference to a larger bench; however, the High Court may exercise its extraordinary writ jurisdiction to facilitate the hearing of such matters on their merits, preventing undue delay and ensuring timely justice.

Headnote:(A) Hindu Marriage Act, 1955 - Section 24 - Family Courts Act, 1984 - Section 19 - Appeals from orders of lower courts - Maintainability of appeals against interlocutory orders in matrimonial proceedings.

(B) Judicial Discipline - Pending reference to a larger bench regarding the correctness of a full bench authority - Propriety of refraining from adjudicating jurisdictional questions to avoid conflict or preemption of the future authoritative determination. (Paras 8, 11)

(C) Extraordinary Writ Jurisdiction - Constitution of India - Article 226 - Power to ensure justice and prevent delays - Mechanism for substantive adjudication where appellate maintainability is subject to ongoing jurisdictional uncertainty. (Paras 14, 15)

Facts of the case:
A series of appeals were filed assailing orders passed under provisions providing for temporary maintenance. A threshold objection concerning the maintainability of these appeals under specific statutory provisions arose, citing a perceived conflict with higher judicial precedents regarding the interlocutory nature of such orders. A prior decision of this court had declared such orders appealable, but that determination is currently the subject of a pending reference to a larger bench.

Findings of Court:
The court determined that it would be inappropriate to rule on the maintainability of the appeals while the matter of law is pending before a larger bench, as doing so would risk judicial inconsistency. To prevent the denial of justice caused by prolonged uncertainty, the court exercised extraordinary constitutional powers to permit the merits of the disputes to be addressed through an alternative procedural mechanism.

Issues: (1) Whether an order regarding temporary maintenance is appealable under specific statutory provisions; (2) Whether a court should adjudicate jurisdictional questions when the underlying legal issue is currently under reference to a larger bench; (3) How to guarantee the efficient resolution of disputes amidst ongoing legal ambiguity regarding appellate forums.

Ratio Decidendi: Judicial discipline dictates that where doubt regarding the correctness of a standing full bench decision has been expressed and referred to a larger bench, the court should refrain from rendering a determination that may conflict with the forthcoming resolution. Furthermore, in circumstances of jurisdictional ambiguity, the court may invoke its extraordinary writ jurisdiction to bypass procedural bottlenecks, thereby ensuring that matters are disposed of on their merits in the larger public interest.

Result: Appeals disposed of with directions to re-register them as petitions for disposal on merits.

Table of Content
1. history of conflicting precedents regarding maintainability of appeals under section 24 of hindu marriage act. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. judicial propriety dictates deferring a decision until a reference pending before a larger bench is resolved. (Para 8 , 9 , 10 , 11)
3. high courts may invoke article 226 powers to ensure justice and avoid delays when jurisdictional conflicts exist. (Para 12 , 13 , 14 , 15)
4. procedural mandate to re-register appeals as single bench petitions to expedite disposal. (Para 16 , 17 , 18)

JUDGMENT :

Arun Monga, J.

1. These bunch of appeals have been filed assailing various orders passed by the learned Family Court under Section 24 of the Hindu Marriage Act, 1955. A common objection raised by the respondents in all these matters is that an appeal under Section 19 of the Family Courts Act, 1984 is not maintainable against an order passed under Section 24 of the Act of 1955, as such an order is interlocutory in nature. By this common order, we propose to deal with the said objection.

2. In Kavita Vyas v. Deepak Dave , DB Civil Reference No. 01/2017, decided on 10.01.2018., the question referred to a Full Bench of this Court was: “Whether an order passed under Section 24 of the Hindu Marriage Act, 1955 by the Presiding Officer of a Family Court is an appealable order or not?”

3. The Full Bench noted that, till then i.e. 10.01.2018, a Division Bench judgment of this Court dated 19.11.2010 in Ajay Malik v. Smt. Shashi , RLW 2011(2) Raj. 1615. held the field, wherein it had been held that such an appeal was not maintainable.

4. After referring to the relevant statutory provisions and the case law on the subject, the Full Bench, vide order dated 10.01.2018, held and declared that the Division Bench decision of this Court in Ajay Malik v. Smt. Shashi (supra) did not lay down the correct law. The reference was accordingly answered by holding that an appeal shall lie under Section 19 (1) of the Family Courts Act, 1984 against an order passed by a Family Court under Section 24 of the Hindu Marriage Act, 1955.

5. Subsequently, in Amit Vyas v. Pramila @ Ranjana , DB Civil Review Petition No. 79/2018 in DB Civil Misc. Appeal No. 3744/2016. a Division Bench of this Court observed, inter alia, that there was considerable force in the submission that as per Hon’ble Supreme Court it was held in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others , (1978) 4 SCC 70. that an order under Section 24 of the Hindu Marriage Act is interlocutory, since it does not finally determine any of the rights of the parties.

6. The Division Bench further noted that in Roger Shashoua and Others v. Mukesh Sharma and Others , (2017) 14 SCC 722 while explaining the principle of ratio decidendi, the Supreme Court had considered and summarized the principles governing the doctrine of per incuriam, holding that a decision may be per incuriam if a statutory provision, rule or binding precedent was not brought tothe notice of the Court; or if its ratio cannot be reconciled with that of a prior judgment of a co-equal or larger Bench; or where a High Court decision is not in consonance with the law laid down by the Supreme Court.

7. Considering that the view in Kavita Vyas (supra) had been expressed by a Bench larger than a Division Bench, the learned Division Bench seized of the matter, by order dated 27.05.2022, expressed its inclination to refer the case for consideration by a Larger Bench under Rule 59 of the RAJASTHAN HIGH COURT RULES , 1952. The following question of law was framed for the reference of the Larger Bench:-

“Whether the view taken by the Full Bench of this Court in the case of Kavita Vyas Vs. Deepak Dave, 2018(1) RLW 97 (Raj.) holding that an order passed under Section 24 of the Hindu Marriage Act, 1955 is a judgment and not an interlocutory order and, therefore, appeal against such order is maintainable under Section 19 , sub-section (1) of the Family Courts Act, 1984, is per incuriam as the j