06/18.03.2025

Heard learned counsel appearing for the petitioner and learned counsel appearing for the sole opposite party.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 08.01.2024 passed in Original Suit No.708 of 2022 by learned Principal Judge, Family Court, Bokaro whereby the learned Principal Judge directed the petitioner to pay a sum of Rs.2,000/- per month as pendente lite.

3. When this matter was taken up, learned counsel appearing for the sole 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 is passed of interim maintenance by the Family Court, Bokaro under Section 24 of the Hindu Marriage Act, 1955 and it was pointed out that in light of Section 19 of Family Court’s Act only appeal will lie against the said order. He submits that petition was filed under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. However, in the impugned order Section 24 of the Hindu Marriage Act, 1955 is reflected.

4. In view of his such preliminary objection, the learned counsel appearing for the sole opposite party was called upon to first address the Court on the issue of maintainability and in view of that he submits that Section 19 of the Family Court’s Act provides remedy of appeal and in light of that the said order is appealable and the petition under Article 227 of the Constitution of India is not maintainable. According to him, the nature of order is final, as such only appeal can be maintained under the said section of Family Court’s Act. To buttress this argument, he relied in the case of Jayanti Prasad Gautam versus Pragya Gautam reported in (2018) SCC OnLine Del 11535 and he placed reliance upon paragraph No.7 of the said judgment which is as under :-

7. Once the Legislature has provided the remedy of appeal, that too to the Division Bench against the impugned order, the principle enshrined in large number of judgments discussed in dicta of the Division Bench of this Court in Dinkar Kumar v. Union of India, 2014 SCC OnLine Del 2288 relating to writ jurisdiction would apply i.e. that the writ court should abstain from exercising jurisdiction when alternative statutory remedy is available. It is not the case that the challenge to the impugned order made in this writ petition cannot be made in appeal under Section 19 of the Family Courts Act.

5. Relying on the above judgment, he submits that this petition is not maintainable under Article 227 of the Constitution of India and in view of that this issue may kindly be decided in favour of the sole opposite party and the petitioner may take his further remedy in light of the provision made under Section 19 of Family Court’s Act.

6. On the other hand, Mr. Baibhaw Gahlaut, learned counsel appearing for the petitioner submits that the contention of learned counsel appearing for the sole opposite party is not correct as 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 can be maintained. He relied in a Full Bench Judgment of Hon’ble Patna High Court in the case of Neelam Kumari Sinha versus Prashant Kumar reported in (2010) 0 Supreme (Pat) 1299, and he placed reliance upon paragraph No.3 of the said judgment which is as under :-

3. An order passed under Section 24 of the 1955 Act was appealable under Section 28 of the 1955 Act. After the amendment in the year 1976, Section 28 of the 1955 Act had undergone a sea change. The unamended Section 28 of the 1955 Act reads as follows :-

“28. All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in exercise of the original civil jurisdiction are enforced and may be appealed from under any law for the time being in force; Provided that there shall be no appeal on the