Ramrao Singh vs Usha Singh
2013 Latest Caselaw 7096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 9
 
Case :- FIRST APPEAL No. - 467 of 2012
 
Appellant :- Ramrao Singh
 
Respondent :- Usha Singh
 
Counsel for Appellant :- Arvind Kumar Singh,R.K. Singh
 
Counsel for Respondent :- Ali Hasan
 

 
Hon'ble B. Amit Sthalekar,J.

I have heard Sri Arvind Kumar Singh, learned counsel for the appellant and Sri Istiyaq Ali, learned counsel for the respondent.

This appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 against the impugned judgment dated 2.7.2011 passed under Section 24 of the Hindu Marriage Act, 1955. The provision of appeal under the Hindu Marriage Act , 1955 (hereinafter referred to  as the 'Act')  is laid down under Section 28 of the Act which reads as under:-

"28. Appeals from decrees and orders.-(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), 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 decisions of the court given in the exercise of its original civil 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."

From a perusal of the provisions of Section 28 of the Act, it is clear that no appeal lies against  an order passed under Section 24 of the Act. It is not disputed by the learned counsel for the appellant or by Sri Ishtiyaq Ali , learned counsel for the respondent that proceedings under Section 13 of the Act for divorce are still pending in the civil court. It is also admitted by both the parties that these are  not proceedings under Section 19 of the Family Court Act.

Learned counsel for the appellant has  placed reliance upon the Full Bench decision  of this  Court reported  in 2006 All. C.J, 1936, Kiran Bala  Srivastava (Smt) vs. Jai Prakash  Srivastava. Proceedings in that case arose under the Family Court Act and it was against an order passed under Section 24 of the Hindu Marriage Act, 1955, that the appeal was filed under Section 19 of the Family Court Act. Present proceedings  are not under the Family Court Act but under Section 28 of the Hindu Marriage Act, 1955.

Even otherwise the appeal under the Family Court Act is cognizable by a Division Bench as per the provisions of the Act itself.

In view of the above legal position, the present appeal under Section 28 of the Hindu Marriage Act, 1955 is not maintainable  and is accordingly dismissed. 

Order Date :- 25.11.2013

Asha