SUMAN Vs. BRAJ KISHORE

JUDGEMENT

(1.) This is an appeal under Section 28 of the Hindu Marriage Act 1955, against the judgement and order dated 16.11.2011 and decree dated 30.11.2011 passed in Case No. 774 of 2007, Brij Kishore vs. Smt. Suman, by Additional Civil Judge (Senior Division), Court No. 2, Bulandshahar. Stamp Reporter has reported that this appeal is not maintainable before this Court.

(2.) Learned counsel for the appellant has submitted that the plaintiff respondent had filed Original Suit No. 774 of 2007, under Section 13 of the Hindu Marriage Act, which has been decreed by the trial Court. According to him, since the proceedings were under Section 13 of the Hindu Marriage Act, the appeal under Section 19 of the Family Courts Act would not be maintainable. However, since it is a matrimonial dispute decided by the Civil Judge in the absence of establishment of Family Court in Bulandshahar, the appeal would lie to the High Court under Section 28 of the Hindu Marriage Act, as is provided under Section 19 of the Family Courts Act.

(3.) The question was considered by a Full Bench of this Court in the case of Kiran Bala Srivastava (Smt.) vs. Jai Prakash Srivastava,2006 AllCJ 1936. The Full Bench considered the difference of an appeal under Section 19 (1) of the Family Courts Act, which provided for an appeal against a judgement or order of the Family Court. It also considered the provision of Section 28 of the Hindu Marriage Act, which provides for an appeal against a decree or order. It was held that Section 28 of the Hindu Marriage Act does not provide for appeal against a judgment, therefore, the answer to the question referred to the Full Bench as to whether an appeal under Section 19 of the Family Courts Act would lie against an order passed under Section 24 of the Hindu Marriage Act was given in affirmative since the order under Section 24 granting pendente lite maintenance is a judgment and an appeal would therefore, lie under Section 19 (1) of the Family Courts Act. Paragraph 21 of the said judgement of the Full Bench is quoted hereunder: