Interlocutory Maintenance Order Can Be Challenged Under Article 227, Not U/S 19 Of Family Courts Act: Jharkhand High Court

The Jharkhand High Court has held that a petition under Article 227 of the Constitution of India is maintainable against an interlocutory order granting interim maintenance, as no appeal can be filed under Section 19 of the Family Courts Act, 1984, against such orders.

Justice Sanjay Kumar Dwivedi, presiding over the case, observed, “In view of above discussions when the provisions of Section 19 of the Family Court's Act are interpreted keeping the aforesaid principles in mind, it is clear that no appeal against an order passed as an interlocutory order can be filed under Section 19 of the Family Court's Act and in view of that the petition under Article 227 of the Constitution of India is maintainable.”

The ruling was delivered in Civil Miscellaneous Petition where the petitioner had challenged the Family Court's order, passed in an Original Suit. The Family Court had directed the petitioner to pay Rs. 2,000/- per month as pendente lite maintenance.

The petitioner contended that the maintenance order was unsustainable since the petitioner's daughter had earlier filed a petition under Section 23 of the Protection of Women from Domestic Violence Act, 2005. That petition had been rejected by the Judicial Magistrate, First Class, Bokaro, who held that the petitioner's daughter was educated, employed, and capable of supporting herself. Since this order had attained finality, the petitioner argued that the subsequent maintenance order under the Hindu Adoption and Maintenance Act, 1956 was unwarranted.

The Court accepted the petitioner's contention and emphasized, “once the party chosen his remedy under the particular statute, he is required to take remedy under that statute and at early stage the remedy cannot be altered,” while placing reliance on the Supreme Court's judgement in the case of Nivedita Sharma v. Cellular Operators Association of India and others, reported in [(2011) 14 SCC 337] which held that the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds in the field.

The Court observed that, “An order to be a judgment or an order finally deciding any issue it is necessary that such an order while not final and conclusive deciding or determining the rights of the parties with regard to all or any matter in controversy may still have the ring of finality in the case it affects the vital and valuable rights and obligations of the parties involved in the proceedings.”“To put it differently, if any order passed by the Family Court decides any question between the parties which directly affects the decision in the main case or which finally decides any collateral issue in perpetuity, it would be a judgment or order which is appealable but if an order, though deciding an issue between the parties finally, is temporary and interim in nature and has no bearing or effect on the rights of the parties or the main issue involved in the case, it would fall within the parameters of an interlocutory order,” the Court added.

Looking into the Family Court's Act, the Court stated that it clearly bars appeal if the order is interlocutory in nature and the only test of the order is interlocutory or final it has to be looked into whether the proceeding has come to an end or it is still alive.

The Court further said that it was crystal clear that the said order was interlocutory in nature as the maintenance case is still alive and if the order is interlocutory in nature a party cannot be left remediless as in view of the fact that under Section 19 of the Family Court's Act, 1984 appeal will lie, however at the same time the appeal is barred if the order is interlocutory in nature and in light of that Article 227 of the Constitution of India are available to any person aggrieved by the order.

The Court also observed that since the Family Court's order directing the petitioner to pay Rs. 2,000/- per month as pendente lite maintenance did not conclusively determine the maintenance claim, it was interlocutory in nature.

Consequently, the Court held, “when the provisions of Section 19 of the Family Court's Act are interpreted keeping the aforesaid principles in mind, it is clear that no appeal against an order passed as an interlocutory order can be filed under Section 19 of the Family Court's Act and in view of that the petition under Article 227 of the Constitution of India is maintainable.”

On these grounds, the Court set aside the Family Court's order and directed it to reconsider the application pending under the Hindu Adoption and Maintenance Act, 1956. The Court further directed the Family Court to examine whether a party can alter their remedy by switching statutes after pursuing an initial claim.

Case Title: Mukund Murari Mahto vs Karishma Singh @ Kumari Mubi

LL Citation: 2025 LiveLaw (Jha) 21

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