Virendra Singh (Indra) vs Smt. Meena Devi

The present appeal arises from order dated 18th May 2016 dismissing S.B. Civil Writ Petition No.5450/2016 declining to interfere with the order for maintenance pendente lite granted by the Family Judge under section 24 of the Hindu Marriage Act, 1955 along with litigation and travel expenses.

The Family Judge exercises civil powers under the Family Courts Act, 1984. The powers under the Family Courts Act as defined under section 7 are exercised by a civil court in like manner as a suit or proceeding.

The fact that the writ petition have been described as instituted under Articles 226 and 227 of the Constitution will not change the essential nature of the jurisdiction under which it was instituted and exercised by this Court exclusively under Article 227.

In Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors., (2015) 9 SCC 1 after considering precedents it have been held as follows:-

"18. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three Judge Bench in Radhey Shyam, which is a binding precedent. Needless to emphasise that once it is exclusively assailable under Article 227 of the Constitution of India, no intra-court appeal is maintainable.

45.2 The order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam, no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable."

The appeal is therefore held to be not maintainable. The appellant is at liberty to pursue his remedies in accordance with law.

The appeal is dismissed as not maintainable.