JUDGMENT Umeshwar Pandey, J.
1. Heard learned Counsel for the petitioner.
2. The law point was raised on the last date by the court if this writ petition" is maintainable in the fase of Section 19 of the Family Courts Act and Section 28 of the Hindu Marriage Act, which provide for appeal against the judgment, decree and orders passed by the Family Court dealing with the matter for award of interim maintenance under Section 24 of Hindu Marriage Act.
3. Learned counsel appearing for the petitioner has cited a case law of Ravi Saran Prasad alias Klshore v. Smt Rashml Singh 2001 (19) LCD 707 and has thus, tried to emphasise that since no appeal would lie against the order passed under Section 24 of Hindu Marriage Act, the only remedy left to the aggrieved party is by way of writ petition under Article 226 and 227 of Constitution of India.
4. Section 19 of Family Courts Act, 1984, provides for appeal from every judgment or order not being interlocutory order of a Family Court to the High Court. Section 19(1) of Family Courts Act is relevant and is quoted as below:-
19. Appeal:- (1) Save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
5. Section 28 of Hindu Marriage Act also provides for appeal against all decrees and orders made by the court in any proceeding under this Act. Sub-section (1) and (2) of Section 28 of Hindu Marriage Act are relevant in this regard and are quoted as below:-
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.
6. Since Section 19 of Family Courts Act excludes applicability of any other provisions under any law for the time being in force for the purposes 'of Its applicability in regard to filing of appeal, an appeal against the judgment and order of the Family Court Judge shall be maintainable only within the provision of Section 19 aforesaid and therefore the applicability of Section 28 of Hindu Marriage Act for the purpose of filing an appeal again an order under Section 24 of the Hindu Marriage Act is apparently excluded. In the aforesaid case law, the Division Bench in para-9 of the judgment in these words has held "it is more than obvious that remedy of appeal will not be available to the aggrieved party against the order passed by the Family Court Judge under Section 24 of Hindu Marriage Act. The only remedy, which is available to such aggrieved party would be under Article 226 and 227 of Constitution of India". Though, the Division Bench has not specifically stated anywhere in the body of its judgment that an order passed under Section 24 of Hindu Marriage Act is an interlocutory order but it is found by implication that it has actually treated such interim order under Section 24 of Hindu Marriage Act to be an interlocutory order and therefore, has propounded that no appeal against such order would lie and instead a writ petition would be maintainable on behalf of the aggrieved party.
7. In the aforesaid view and the facts and circumstances supported with Division Bench case law of Ravi Saran Prasad alias Kishore (supra), I hold that this petition under Article 226 of the Constitution of India is maintainable.
8. Learned counsel has emphasised that the impugned order has been passed on 6.12.2005 whereas the application for interim maintenance was given by the petitioner much before filing of her written statement. The delay in disposal of this application is not on account of any delaying conduct of the petitioner and the court was duty bound under Section 24 of Hindu Marriage Act itself to dispose of such application within 60 days from the date of service of notice to the wife or the husband, as the case may be. Here the notice on the other party has been served on the same day of filing the application before the court but a year's time has been taken for its disposal and its rejection & only on the ground that the stage of final hearing of divorce petition has arrived is not justifiable.
9. Issue notice to the respondent No. 2 returnable within six weeks.
10. List thereafter.
11. The proceeding in the divorce, petition shall remain suspended meanwhile.