Rajasthan HC converts Section 24 HMA maintenance appeals into Article 226 petitions pending Larger Bench ruling

Jodhpur: A division bench of the Rajasthan High Court, comprising Justice Arun Monga and Justice Sunil Beniwal, has disposed of a large batch of appeals filed against maintenance orders passed by Family Courts under Section 24 of the Hindu Marriage Act, 1955. Declining to decide the contested question of maintainability of such appeals — which is currently pending before a Larger Bench — the division bench invoked its wide powers under Article 226 of the Constitution and directed that all the appeals be re-registered as Single Bench writ petitions for hearing on merits, so as to prevent further delay in disposal. The judgment was authored by Justice Arun Monga.

The appeals before the Court arose from orders passed by Family Courts in Rajasthan under Section 24 of the Hindu Marriage Act, 1955, which empowers a Family Court to award interim maintenance and litigation expenses to a party during the pendency of matrimonial proceedings. The appellants had filed appeals against such orders before a division bench of the High Court under Section 19(1) of the Family Courts Act, 1984.

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.

The question of whether such appeals are maintainable has had a chequered history in the Rajasthan High Court. In Ajay Malik v. Smt. Shashi [RLW 2011(2) Raj. 1615], a Division Bench had held in 2010 that an appeal against a Section 24 order was not maintainable. That position was reconsidered in 2018 when, in Kavita Vyas v. Deepak Dave [2018(1) RLW 97 (Raj.)], a Full Bench of the Rajasthan High Court answered a reference by declaring that the Division Bench decision in Ajay Malik did not lay down the correct law. The Full Bench held 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. Following this judgment, a large number of appeals were filed before the High Court.

The matter did not rest there. In Amit Vyas v. Pramila @ Ranjana, a Division Bench of the Court noted that the Supreme Court had in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others [(1978) 4 SCC 70] held that an order under Section 24 is interlocutory in nature and does not determine any rights of the parties. The Division Bench observed that the Full Bench in Kavita Vyas appeared not to have considered this binding Supreme Court precedent and may therefore be per incuriam. By an order dated 27 May 2022, the Division Bench referred the question of law — whether the Full Bench ruling in Kavita Vyas is per incuriam in light of the Supreme Court’s decision in Captain Ramesh Chander Kaushal — for consideration by a Larger Bench under Rule 59 of the Rajasthan High Court Rules, 1952. As of the date of the present judgment, no Larger Bench has yet been constituted to answer that reference.

With the Full Bench ruling in Kavita Vyas still technically holding the field but its correctness under doubt following the reference order of 27 May 2022, the present division bench found itself in a difficult position. On one hand, the appellants had filed their appeals in good faith, relying on the Full Bench decision. On the other hand, the very foundation of the appeals — the maintainability of such an appeal under Section 19(1) of the Family Courts Act — was the subject of a pending reference to a Larger Bench, and the Larger Bench had not yet been constituted. Meanwhile, revision under Section 19(4) of the Family Courts Act was not available for orders under Section 24 of the Hindu Marriage Act, as that provision excludes interlocutory orders from revisional jurisdiction.

The Court observed that since a Division Bench had already expressed serious doubt about the correctness of the Full Bench ruling in Kavita Vyas and had referred the question to a Larger Bench, it would be inappropriate for the present division bench to adjudicate either on the question of maintainability or on the merits of the appeals. As the Court put it, “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.” So long as the doubt over the Full Bench ruling subsisted, a “corresponding uncertainty” clouded the jurisdiction of the present division bench itself.

At the same time, the Court was alive to the pressing need for expeditious justice. Referring to the well-known principle that “justice delayed is justice denied,” the bench noted that it would be “unjust and unfair to the parties if their cases are allowed to linger any further” and that a workable solution for early disposal was necessary.

The Court found that solution in Article 226 of the Constitution, which confers upon every High Court the power to issue directions, orders, and writs to any person or authority for the enforcement of fundamental rights and for any other purpose. Noting that this power is wide and is not circumscribed by the procedural limitations governing statutory appeals, the bench held that the pending matters could and ought to be disposed of in exercise of this constitutional jurisdiction, including by issuing appropriate directions to ensure their hearing on merits before a competent Bench.

The division bench disposed of the lead appeal and all connected appeals by directing that they be remanded to the Registry of the High Court for re-registration as Single Bench petitions under Article 226 of the Constitution, and thereafter listed for hearing on merits before the appropriate bench. The bench made clear that the appellants could not be faulted for having filed these appeals, since they had done so in reliance on the Full Bench judgment in Kavita Vyas, which remained good law at the time of filing.

The Court also directed that a copy of its order be forwarded to the Registrar (Judicial) to bring to the notice of the Acting Chief Justice the pendency of the reference order dated 27 May 2022, so that appropriate steps could be taken towards the constitution of a Larger Bench to finally resolve the question of law.

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