[Cites 14, Cited by 0]
Rajasthan High Court - Jodhpur
Monica Chandel vs Chetan Samariya ... on 6 April, 2026
[2026:RJ-JD:15324-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2040/2023
Kaushlya Soni W/o Shri Ravikant Soni & D/o Shri Jagdish Prasad
Soni, Age 32 years, R/o Near Laxmikant Mandir, Rajaldesar,
District Churu
----Appellant
Versus
Ravikant Soni S/o Shri Shankar Lal Soni, Age 31 years, R/o B-1,
Gayatri Kunj Society, behind Ranip Bus Stand, Ahmedabad
(Gujarat).
----Respondent
Connected With
D.B. Civil Misc. Appeal Nos. 3476/2018, 202/2019, 2083/2019,
2746/2019, 1527/2020, 404/2022, 803/2022, 912/2022,
1227/2022, 1869/2022, 603/2023, 1107/2023, 1198/2023,
1210/2023, 1263/2023, 1277/2023, 1319/2023, 1567/2023,
1599/2023, 1690/2023, 1733/2023, 1817/2023, 1963/2023,
2010/2023, 480/2024, 875/2024, 1029/2024, 1045/2024,
1438/2024, 1538/2024, 2285/2024, 2331/2024, 2348/2024,
2387/2024, 2489/2024, 2525/2024, 2835/2024, 3308/2024,
3342/2024, 3357/2024, 3360/2024, 124/2025, 406/2025,
709/2025, 1238/2025, 1309/2025, 1364/2025, 1436/2025,
1449/2025, 2168/2025, 2275/2025, 2287/2025, 3166/2025,
3303/2025, 3333/2025, 3384/2025, 3385/2025, 3411/2025,
3413/2025, 3423/2025, 3445/2025, 3450/2025, 3463/2025,
3676/2025, 3681/2025, 3722/2025, 301/2026, 303/2026,
341/2026, 373/2026, 579/2026, 644/2026, 672/2026 &
1329/2026
For Petitioner(s) : 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 and Mr. Gajendra Singh
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Mr. P.D Bohra
Mr. D.S. Gaur
For Respondent(s) : 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
HON'BLE MR. JUSTICE ARUN MONGA
HON'BLE MR. JUSTICE SUNIL BENIWAL
Judgment
Reportable
Judgment Reserved on :-23/03/2026
Pronounced on :- 06/04/2026
By the Court (Per: 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 Dave1, 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?"
1. DB Civil Reference No. 01/2017, decided on 10.01.2018.
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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. Shashi2 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 @ Ranjana3, 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 Others4, 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 5, 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 to
2. RLW 2011(2) Raj. 1615.
3. DB Civil Review Petition No. 79/2018 in DB Civil Misc. Appeal No. 3744/2016.
4. (1978) 4 SCC 70.
5. (2017) 14 SCC 722
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the 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 judgment of Hon'ble
Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs.
Veena Kaushal and Others (1978) 4 SCC 70 holding that an order passed
under Section 24 of the Hindu Marriage Act, 1955 is an interlocutory
order, which does not determine any of the rights of the parties, was not
considered by the Full Bench of this Court?"
8. However, a Larger Bench has yet to be constituted in terms of
the aforesaid order dated 27.05.2022. Thus, the answer of the
Larger Bench to the said question of law is still awaited. The issue
as to whether an order passed by a Family Court under Section 24
of the Hindu Marriage Act, 1955 is appealable would stand settled
only after, and in the light of, the decision of the Larger Bench. As
of now, the issue remains in a state of uncertainty.
9. In this backdrop, these pending appeals have been taken up
for adjudication on the issue of maintainability.
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10. It is to be noted that these D.B. appeals have been filed in
view of the Full Bench judgment dated 10.01.2018 in Kavita
Vyas (supra). The appellants, therefore, cannot be faulted for
having filed these appeals. However, the said Full Bench judgment
itself has now become the subject matter of the reference order
dated 27.05.2022 passed by the learned Division Bench in Amit
Vyas v. Pramila @ Ranjana (supra).
11. In the aforesaid circumstances, we are of the opinion that
once a Division Bench of this Court has expressed doubt as to the
correctness of the ratio laid down by the Full Bench and has
referred the issue for consideration by a Larger Bench, it would be
inappropriate for us to adjudicate these appeals either on the
question of maintainability or on merits. The issue of
maintainability, being the very subject matter of the pending
reference, directly bears upon the jurisdiction of this Court to
entertain and decide these appeals. So long as such doubt
subsists, a corresponding uncertainty clouds the jurisdiction of this
Division Bench itself. In such a situation, judicial discipline and
propriety require that we refrain from rendering a determination
which may pre-empt or conflict with the decision to be rendered
by the Larger Bench. Accordingly, the question relating to
jurisdiction and maintainability ought to await its determination
thereof by the Larger Bench, upon resolution of the reference and
not by us.
12. At the same time, the principle that justice delayed is justice
denied cannot be ignored. Expeditious disposal of litigation is a
matter of larger public interest, and it would be unjust and unfair
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to the parties if their cases are allowed to linger any further. A
workable solution for early disposal, therefore, needs to be found.
13. Section 19(4) of the Family Courts Act, 1984 provides that
the High Court may, of its own motion or otherwise, call for and
examine the record of any proceeding in which a Family Court
within its jurisdiction has passed an order under Chapter IX of the
Code of Criminal Procedure, 1973, for the purpose of satisfying
itself as to the correctness, legality or propriety of such order, not
being an interlocutory order, and as to the regularity of such
proceedings. Sub-section (5) further provides that, except as
aforesaid, no appeal or revision shall lie to any Court from any
judgment, order or decree of a Family Court. Thus, orders passed
by a Family Court under Section 24 of the Hindu Marriage Act
stand excluded from the scope of revisional jurisdiction of this
Court.
14. Under Article 226 of the Constitution of India, every High
Court has the power, throughout the territories in relation to which
it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases any Government, directions, orders
or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of the rights conferred by Part III and
for any other purpose.
15. Having regard to the peculiar facts, developments and
circumstances noticed above, we are of the considered opinion
that, in order to avoid further delay, ensure expeditious disposal of
these cases, and serve the larger public interest, these matters
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can and ought to be disposed of in exercise of the wide powers of
this Court under Article 226 of the Constitution of India, including
the power to issue appropriate directions and orders for any
purpose.
16. Accordingly, subject to the orders of Hon'ble the Acting Chief
Justice, as the Master of the Roster, these cases be, therefore,
entrusted to the appropriate Bench(es) for disposal on merits.
17. A copy of this order be also sent to the Registrar (Judicial), to
bring to the notice of the Learned Acting Chief Justice the
pendency of the reference order dated 27.05.2022, for
appropriate steps towards constitution of a Larger Bench.
18. With these observations, the appeals are disposed of by
remanding the same to the Registry of this Court to be re-
registered as Single Bench petitions and then listed for hearing, as
above.
(SUNIL BENIWAL),J (ARUN MONGA),J
127-201-Devanshi/-
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