SUNIL PATHAK Vs. GUNJA ALIAS GUNJAN PANDEY

JUDGEMENT

(1.) -The short question that arises for consideration in this appeal is that in a district where family court, under the Family Courts Act, 1984, had not been established and the application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred as the 'Act 1955') is heard by District Judge whether an appeal under Section 19 (1) of the Family Courts Act or a revision under Section 115, C.P.C. or a writ application under Article 227 of the Constitution of India would lie.

(2.) THE stamp reporter had submitted two reports on 17.11.2008 and 20.11.2008 that appeal would not lie under Section 19 (1) under the Family Courts Act against an order passed by the District Judge, Ghazipur as no family court has been established in the district.

(3.) IT is not disputed by learned counsel for the appellant that in District Ghazipur no family court had been constituted under the Family Courts Act, 1984. Section 8 of the Family Courts Act, 1984 excludes the jurisdiction of District Court or any Subordinate civil court referred to in Section 7 (1) of the Family Courts Act in relation to the area where the family court had been established. But in those districts where family courts have not been established, the jurisdiction to entertain and try matrimonial petition would lie to District Court as original civil jurisdiction. Since the Additional District Judge while deciding the application under Section 24 of the Act, 1955 has passed impugned order under his original civil jurisdiction and the impugned order is not a decree and such an order is also not appealable under Section 28 of the Act, 1955 as the appeal under said Section is provided against an order under Section 25 or 26 of the said Act only. Therefore, we cannot assume that an appeal against an order under Section 24 would also lie under Section 28 of the Act, 1955 unless it was specifically provided by the Legislature.