Interim Maintenance Orders To Be Treated As Writ Petitions Pending Resolution Of Larger Bench Reference

The Appellants filed miscellaneous appeals challenging various orders passed by Family Courts under Section 24 of the Hindu Marriage Act, 1955 (interim maintenance).

The respondents raised a preliminary objection regarding the maintainability of these appeals under Section 19 of the Family Courts Act, 1984, arguing such orders are "interlocutory".

While a 2018 Full Bench decision in Kavita Vyas v. Deepak Dave held such appeals maintainable, a subsequent Division Bench in 2022 (Amit Vyas v. Pramila) questioned this view, citing Supreme Court precedent (Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal) which suggests these orders are interlocutory.

The 2022 Bench referred the matter to a Larger Bench, which is yet to be constituted.

1. Whether an appeal under Section 19(1) of the Family Courts Act, 1984, is maintainable against an order passed under Section 24 of the Hindu Marriage Act, 1955.

2. Whether the High Court can exercise its extraordinary jurisdiction under Article 226 of the Constitution to ensure the expeditious disposal of these cases pending the resolution of a legal reference to a Larger Bench.

Section 24 of the Hindu Marriage Act, 1955, regarding maintenance pendente lite.

Section 19 of the Family Courts Act, 1984, which restricts appeals against interlocutory orders.

The doctrine of per incuriam as summarized in Roger Shashoua v. Mukesh Sharma.

Supreme Court’s characterization of Section 24 orders as interlocutory in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal.

The Court relied on its plenary powers under Article 226 of the Constitution of India to prevent a failure of justice due to procedural delays.

The Court observed that the current legal landscape regarding the maintainability of Section 24 appeals is in a state of "uncertainty" due to the pending reference to a Larger Bench.

Judicial discipline prevents the Division Bench from deciding the merits or the maintainability while the reference is sub judice, as any ruling might conflict with the eventual Larger Bench decision.

Noting that Section 19(4) of the Family Courts Act excludes Section 24 orders from revisional jurisdiction, the Court determined that leaving the appeals in limbo would violate the principle that "justice delayed is justice denied".

To provide a "workable solution," the Court invoked its wide powers under Article 226 of the Constitution to convert and treat these matters as writ petitions, thereby bypassing the jurisdictional deadlock created by the technical definition of "interlocutory orders" under Section 19.

The Court disposed of the appeals by remanding them to the Registry with directions to re-register them as Single Bench writ petitions to be heard on their merits under Article 226.

The Court further directed the Registrar (Judicial) to bring the pending 2022 reference to the attention of the Acting Chief Justice for the constitution of a Larger Bench.