SUBHAS GUPTA Vs. SMT. KABITA GUPTA

JUDGEMENT

(1.) The parties are Hindu and were married on 22.11.2002 at Allahabad. The wife came to the husband's house on 23.11.2002. After about four months of marriage the husband filed a petition on 24.4.2003 under Sec. 12 of the Hindu Marriage Act, 1955 (in brief the Act) for declaring the marriage to be null and void. The appellant, wife on 10.11.2004 filed an application under Sec. 24 of the Act for litigation expenses and interim maintenance against the respondent, husband. The application filed by the appellant under Sec. 24 of the Act had been dismissed by the Additional Judge, Family Court, Allahabad on 20.5.2006 as it does not lie. This order is under challenge in the present appeal.

(2.) With the consent of learned Counsel for the parties given on 9.11.2006, this appeal is being finally heard. We have heard Sri Rajesh, learned Counsel for the appellant and Sri Amit Kumar assisted by Smt. Renu Rajat, learned ; counsel for the respondent. Learned Counsel for the appellant has urged that the application filed by the wife under Sec. 24 of the Act was maintainable and the appellant was entitled for Interim maintenance as well as litigation expenses. On the other hand, learned Counsel for the respondent has urged J that this first appeal is not maintainable under Sec. 19(1) of the Family Courts Act, 1984 (In brief the F.C. Act) as it challenges the validity of the order dated 20.5.2006 passed by the Family Court, Allahabad which is an interlocutory order which can be challenged only In a writ petition. He has placed reliance on a decision of this Court in Madhu Mishra alias Guriya Vs. Additional Judge Family Court Allahabad and Anr. 2006(9) Allahabad Dally Judgments 357 (All) . He has further urged that in proceedings under Sec. 12 of the Act, interim maintenance under Sec. 24 of the Act could not be granted.

(3.) The first question is whether this first appeal filed by the appellant under Sec. 19(1) of the F.C. Act is maintainable against the order dated 20.5.2006 passed by the Additional Judge, Family Court, Allahabad under Sec. 24 of the Act? The learned Counsel for the respondent has vehemently urged that against the order passed under Sec. 24 of the Act, no appeal would lie under Sec. 19(1) of the F.C. Act, and only a writ petition would be maintainable under Art. 226 and 227 of the Constitution. He strongly relied on the decision in Madhu Mishra's case (supra). We have gone through this decision. The learned Single Judge while arriving at the conclusion that an appeal would not lie under Sec. 19(1) of the F.C. Act and writ petition would be maintainable has placed reliance on a Division Bench decision of this Court in Ravi Saran Prasad alias Kishore Vs. Smt Rashmi Singh, 2001 (19) LCD 707 : AIR 2001 Allahabad 227 : 2001 All LJ 1714 , wherein it has been held that an order passed under Sec. 24 of the Act was an interlocutory order, therefore, an appeal under Sec. 19(1) of the F.C. Act would not be maintainable. Similar view was taken by this Court in Smt Pratima Sen Gupta Vs. Sajal Sen Gupta 1998 (16) LCD 346 . This Court in an earlier division bench decision in Avadhesh Naraln Srivastava Vs. Archana Srivastava 1990 (8) LCD 66 has held that an appeal against the I order passed under Sec. 24 of the Act would be maintainable under Sec. 19(1) of the F.C. Act. Since there were conflicting views of the aforesaid - division benches about the maintainability of an appeal under Sec. 19(1) of the F.C Act where an order under Sec. 24 of the Act was challenged, a reference was made to a larger bench. The Full Bench in Smt. Klran Bala Srivastava Vs. Jai Prakash Srivastava, 2005(23) LCD 1 has resolved the conflict. While answering the question, referred to it, whether an appeal under Sec. 19(1) of the F.C. Act would lie against an order passed under Sec. 24 of the Act for grant of Interim maintenance In the affirmative, the Full Bench in paragraph 30 held as under: