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2019 DIGILAW 512 (MP)

ANUP KUMAR v. REENA @ RENU

2019-07-11

R.S.JHA, RAJEEV KUMAR DUBEY, VIJAY KUMAR SHUKLA

body2019
ORDER R. S. JHA, ACTG. C. J. : – This revision has been referred to the Full Bench for decision on the following questions, which are as follows : – “(i) Whether an order passed under section 24 of the Hindu Marriage Act, 1955 would be an interlocutory order so that it will not be covered under the meaning of section 19(1) of the Family Courts Act, 1984 ? (ii) Whether against an order passed under section 24 of the Hindu Marriage Act, 1955, a petition under Article 227 of the Constitution of India or an appeal under section 19(1) of the Family Courts Act, 1984, would be available ?” 2. Before we advert to the issues referred to us, it is briefly noted that the present proceeding arises from the order dated 5-12-2018 passed by the First Additional District Judge, Rehli, District Sagar, in H. M. No. 33/2017 whereby the application filed by the respondent wife under section 24 of the Hindu Marriage Act, has been allowed and a sum of Rs. 7,000/- has been ordered to be paid to her as maintenance pendente lite and expenses of proceedings. 3. The applicant husband, being aggrieved by the order passed by the First Additional District Judge, Rehli, District Sagar has filed Civil Revision No. 150/2019 under section 24 of the Hindu Marriage Act, 1955. The respondent wife has objected to the maintainability of the Revision on the ground that the order in question is interlocutory in nature and, therefore, no appeal or revision is maintainable against the same. 4. Noticing the conflict of opinion between the two Division Bench decisions of this Court in the case of Sailesh Mishra vs. Vibha Tiwari, F. A. No. 118/2015 dated 30-9-2015 and Prafull Kumar vs. Smt. Asha, F. A. No. 764/2015 dated 26-10-2016, the questions as stated above have been referred for being answered to this Full Bench. 5. Section 19 of the Family Court Act, 1984, provides for filing of an appeal and revision and is in the following terms : – “19. Appeal. 5. Section 19 of the Family Court Act, 1984, provides for filing of an appeal and revision and is in the following terms : – “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 or 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. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) : Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. (4) The High Court may, of its own motion or otherwise, call for an examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding. (5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.” 6. Section 24 of the Hindu Marriage Act, 1955, which deals with the maintenance pendente lite and expenses of proceedings, is in the following terms : – “24. Maintenance pendente lite and expenses of proceedings. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.” 6. Section 24 of the Hindu Marriage Act, 1955, which deals with the maintenance pendente lite and expenses of proceedings, is in the following terms : – “24. Maintenance pendente lite and expenses of proceedings. – Where in any proceedings under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.” 7. It is submitted by the learned counsel for the parties that an order passed under section 24 of the Hindu Marriage Act, granting maintenance pendente lite and expenses of proceedings is an order which is interlocutory in nature and, therefore, not being a judgment or order, is neither appealable nor revisable under the provisions of section 19 of the Family Courts Act, and the remedy available against such an order is to take up proceedings under Article 227 of the Constitution of India. 8. 8. The learned counsel for the parties have taken this Court through the decisions of Rahul Samrat Tandon vs. Smt. Neeru Tandon, AIR 2010 Utr 67; Kavita Vyas vs. Deepak Dave, AIR 2018 RAJ 72 (F.B.); Kiran Bala Srivastava vs. Jai Prakash Srivastava, 2005(23) LCD 1 and Raghvendra Singh Choudhary, Jabalpur vs. Seema Bai w/o Raghvendra Singh Choudhary, Narsinghpur, AIR 1989 MP 259 , wherein it has been held that an appeal against an order under section 24 of the Hindu Marriage Act, is maintainable under section 19 of the Family Courts Act, as the order passed under section 24 of the Hindu Marriage Act, is in the nature of final adjudication of the issues between the parties. The learned counsel for the parties have also taken this Court through the decisions of Neelam Kumari Sinha vs. Shree Prashant Kumar, AIR 2010 Pat 184 (F.B.), Durga Devi and etc. vs. Vijay Kumar Poddar and ors. Etc. AIR 2010 Pat 126 ; Captain Ramesh Chander Kaushal vs. Veena Kaushal and others, AIR 1978 SC 1807 ; and Aruna Chaudhary vs. Sudhakar Choudhary, 2004(2) M.P.L.J. 101 , wherein it has been held that orders passed under section 24 of the Hindu Marriage Act, are interlocutory in nature and, therefore, no appeal or revision is maintainable against the same under the provisions of section 19 of the Family Courts Act. 9. We have carefully gone through the aforesaid decisions that have been cited before us. 10. The Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) in para-6 has held as under : – “6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court. But here two factors make the principle inapplicable. Firstly, the direction by the civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication.” (underlined by us) 11. From the aforesaid decision of the Supreme Court, it is apparent that the Supreme Court, while analyzing the provisions of section 24 of the Hindu Marriage Act, has observed that the incidental directions issued under section 24 of the Hindu Marriage Act, does not amount to any kind of comprehensive adjudication. The aforesaid decision of the Supreme Court was relied upon by the Full Bench of the Orissa High Court in the case of Swarna Prava Tripathy and another vs. Dibyasingha Tripathy and another, AIR 1998 Ori 173 , to hold that orders passed under section 24 of the Hindu Marriage Act, are interlocutory in nature. 12. A Division Bench of this Court in the case of Aruna Choudhary vs. Sudhakar Choudhary, 2004(2) M.P.L.J. 101 , has taken note of the decision of the Supreme Court as well as the Full Bench decision of the Orissa High Court in the case of Swarna Prava Tripathy (supra) and has held as under : – “34. Under section 19(5) of the Act, order of interim maintenance under sections 24 and 25 of Hindu Marriage Act would be treated as interlocutory order, therefore, against such an order, neither appeal lies nor a Revision. The only remedy available to an aggrieved party against such an interlocutory order is to challenge the same by filing a writ petition under Article 227 of the Constitution of India. 35. The Supreme Court has already held that an order passed under section 24 or 26 of Hindu Marriage Act is an interlocutory order. Since section 19(5) creates a bar of filing an appeal against an interlocutory order of such a nature, thus no appeal or revision against such an order would be maintainable. This is what has been held by Full Bench of Orissa High Court in the matter of Swarna Prava Tripathy vs. Dibya Singha Tripathi, 1998 AIHC 4573. Thus, there should not be any doubt with regard to the orders which are passed exclusively by Family Court under section 125 of the Code and other orders which may be passed in pending matters or other matters under sections 24 and 26 of Hindu Marriage Act. Thus, there should not be any doubt with regard to the orders which are passed exclusively by Family Court under section 125 of the Code and other orders which may be passed in pending matters or other matters under sections 24 and 26 of Hindu Marriage Act. Even, though, purpose of both orders may be same, i.e. grant of maintenance for the spouse, but, they are passed in separate proceedings under different Act and Code. Apart from above, one order is termed as interlocutory in nature, whereas, another order passed under section 125 of the Code cannot be termed as an interlocutory order. For convenience and maintaining the records properly such Revisions can be nomenclatured as Civil Revision (Family Court). This position can further be clarified by making necessary amendments in High Court Rules and Orders so as to avoid any confusion in future.” 13. The decision of this Court in the case of Aruna Choudhary (supra) as far as it had held that a Civil Revision against the order passed under section 24 of the Hindu Marriage Act, was maintainable, has been subsequently over-ruled by a Full Bench decision of this Court in the case of Rajesh Shukla vs. Meena, 2005(2) M.P.L.J. (F.B.) 483 and it has been held that a Criminal Revision would lie against an order passed under section 24 of the Hindu Marriage Act and not a Civil Revision. The decision in the case of Aruna Choudhary (supra) has been overruled by the Full Bench of this Court in the case of Rajesh Shukla (supra) to this limited extent. 14. From the aforesaid it is apparent that the Supreme Court in the case of Captain Ramesh Chander Kaushal (supra) and this Court in the case of Aruna Choudhary (supra) has already held that incidental directions to pay maintenance pendente lite and expenses of proceedings does not amount to a comprehensive adjudication of any issue involved in the proceedings and relying upon the same, a Division Bench of this Court has held that orders passed under section 24 of the Hindu Marriage Act, are interlocutory orders and no appeal or revision against the same is maintainable under the provisions of section 19 of the Family Courts Act. 15. 15. A Full Bench of this Court had an occasion to consider the scope and meaning of the term “interlocutory order” while considering the scope and applicability of the provisions of section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred to as the Adhiniyam of 2005’), which prohibits the filing of an intra-Court appeal against an interlocutory order in somewhat similar terms as section 19(1) of the Family Courts Act. The law in this regard was extensively analyzed by the Full Bench of this Court in the case of Arvind Kumar Jain vs. State of Madhya Pradesh and others, 2007(3) M.P.L.J. (F.B.) 565, and while quoting the decision of the Supreme Court in the case of Midnapore Peoples’ Co-operative Bank Ltd. and others vs. Chunilal Nanda and others, (2006) 5 SCC 399 , it has been held as under : – “25. In Midnapore Peoples’ Co-operative Bank Ltd. vs. Chunilal Nando, (2006) 5 SCC 399 , it has been held as under – “15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories : – (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. 16. The term “judgment” occurring in Clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9), Civil Procedure Code and orders enumerated in Order 43 Rule 1, Civil Procedure Code, but also other orders which though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, “judgment” for the purpose of filing appeals under the Letters Patent. On the other hand, orders failing under categories (iv) and (v) are not “judgments” for the purpose of filing appeals provided under the Letters Patent.” 26. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite the fact they are interlocutory in nature they can be put into the compartment of judgment if it affects the merits of the case between the parties by determining some rights or liabilities. There can be three categories of judgments, final judgment, preliminary judgment and intermediary judgment or interlocutory judgment. If the order finally decides the question and directly affects the decision in the main case or an order which decides the collateral issue or the question which is not the subject-matter of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable.” (underlined by us) 16. In view of the law laid down by the Supreme Court in the case of Capt. Ramesh Chandra Kaushal (supra) and Midnapore Peoples’ Co-operative Bank Ltd. (supra) and the Full Bench of this Court in Arvind Kumar Jain (supra), it is apparent that for an order to be a judgment or an order finally deciding any issue, it is necessary that such an order while not finally and conclusively 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 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. 17. 17. At this stage, it is pertinent to take into consideration the object and purpose of the provisions of section 24 of the Hindu Marriage Act to understand the nature of the order passed thereunder. From a bare perusal thereof, it is apparent that the purpose and object of section 24 of the Hindu Marriage Act, is to provide maintenance pendente lite and expenses of proceedings to either of the party to the proceeding which requires financial assistance during the pendency of any proceeding under the Act. Clearly the nature of the order under section 24 of the Hindu Marriage Act, is only to facilitate the proceedings. The order passed under section 24 of the Hindu Marriage Act, has no independent existence and ceases to have any kind of existence or effect with the culmination of the final proceedings. It is also apparent that section 24 of the Hindu Marriage Act, does not give any right to a party to initiate proceedings thereunder independent of any proceedings under the Act. It is also evident that any order passed under section 24 of the Hindu Marriage Act, has no effect or impact on the final adjudication of rights of the parties. In other words, the provisions of section 24 of the Hindu Marriage Act, can be invoked only in a case where proceedings have already been initiated for either divorce, restitution of conjugal rights or any other proceeding under the Hindu Marriage Act and the life of an order passed thereunder ends with the culmination of the proceeding under the Hindu Marriage Act. 18. It is further evident from a perusal of the provisions of the Hindu Marriage Act, and section 24 of the Act, in particular, that an order deciding an application under section 24 of the Hindu Marriage Act, is not an adjudication of any valuable right of the parties in perpetuity for all times to come. The right to claim alimony still remains alive and is decided under section 25 of the Hindu Marriage Act, at the time of culmination of the proceedings. The right to claim maintenance contained under section 125 of the Criminal Procedure Code, also remains alive and can be raised at any point of time in spite of and apart from any order passed under section 24 of the Hindu Marriage Act. The right to claim maintenance contained under section 125 of the Criminal Procedure Code, also remains alive and can be raised at any point of time in spite of and apart from any order passed under section 24 of the Hindu Marriage Act. Quite apart from the above, it is necessary to restate that no person is left remedy-less against an order passed under section 24 of the Hindu Marriage Act, and, therefore, even if an order passed thereunder is not appealable or revisable, the person aggrieved has a remedy of taking up proceedings under Article 227 of the Constitution of India. 19. In such circumstances it cannot be said that an order under section 24 of the Hindu Marriage Act, finally decides any issue which materially and directly affects the final decision in the main case or finally decides a collateral issue which is not the subject matter of the main case for all times to come leaving the affected party remedy-less in perpetuity. 20. It is in such circumstances that the Supreme Court in the case of Capt. Ramesh Chandra Kaushal (supra) has observed that incidental observations made while deciding proceedings under section 24 of the Hindu Marriage Act, have no comprehensive adjudication. 21. At this stage, it is pertinent to take into consideration the decision of this Court rendered in the case of Raghvendra Singh Choudhary, Jabalpur vs. Seema Bai w/o Raghvendra Singh Choudhary, Narsinghpur, AIR 1989 MP 259 , wherein it has been held that the order passed under section 24 of the Hindu Marriage Act, amounts to final adjudication of that particular issue between the parties and, is therefore, appealable under the provisions of Letters Patent. 22. From a perusal of the aforesaid decision, it is apparent that the Division Bench of this Court, while holding that an order passed under section 24 of the Hindu Marriage Act, was appealable, was only dealing with the question as to whether an order passed under section 24 of the Hindu Marriage Act, was appealable under the Letters Patent and not the Family Courts Act. It is also apparent that the decision of the Supreme Court rendered in the case of Capt. Ramesh Chandra Kaushal (supra) was not placed before the Division Bench while deciding the matter nor was the provisions of section 28 of the Hindu Marriage Act and its effect and impact considered. 23. It is also apparent that the decision of the Supreme Court rendered in the case of Capt. Ramesh Chandra Kaushal (supra) was not placed before the Division Bench while deciding the matter nor was the provisions of section 28 of the Hindu Marriage Act and its effect and impact considered. 23. Quite apart from the above, the Letters Patent has been repealed and replaced by the Adhiniyam of 2005, which now prohibits filing of an intra-Court appeal against an interlocutory order, the scope and applicability of which provision has been laid down by the Full Bench decision of this Court rendered in the case of Arvind Kumar Jain (supra) and, therefore, the decision in the case of Raghvendra Singh Choudhary (supra) is no longer relevant for deciding the issue. 24. Pursuant to the law analyzed and summarized by the Supreme Court in the case of Capt. Ramesh Chandra Kaushal (supra); Midnapore Peoples’ Co-operative Bank Ltd. (supra) and Arvind Kumar Jain (supra), wherein the nature of interlocutory orders have been categorized and analyzed, we are of the considered opinion that an order passed under section 24 of the Hindu Marriage Act, is interlocutory in nature and no appeal or revision lies against the same. We may hasten to add that this does not mean that the applicant is left remedy-less as the remedy of taking up proceedings under Article 227 of the Constitution of India, are available to any person aggrieved by the order. 25. There is yet another reason for arriving at the aforesaid conclusion. The provisions relating to nullity of marriage, judicial separation, divorce, restitution of conjugal rights and all other matters relating to Hindu Marriage are governed by the provisions of the Hindu Marriage Act, 1955. The provisions of section 24 contained therein provides for granting maintenance pendente lite and expenses of proceedings. The provisions of section 28 of the Hindu Marriage Act, provides for remedy of appeal against decrees as well as orders passed under sections 25 and 26 of the Hindu Marriage Act. Apparently, the legislature in its wisdom has not provided any provision for filing an appeal against an order passed under section 24 of the Hindu Marriage Act, by treating the order passed thereunder as interlocutory in nature. 26. Apparently, the legislature in its wisdom has not provided any provision for filing an appeal against an order passed under section 24 of the Hindu Marriage Act, by treating the order passed thereunder as interlocutory in nature. 26. The object and purpose for enacting the Family Courts Act, 1984, which is evident from the statement of object and reasons, is for the limited purpose of establishing Family Courts for the purposes of speedy settlement of family disputes. As per the provisions of section 3 of the Family Courts Act, a Family Court has to be notified for a particular area and it is only on notification of the Family Court that the provisions of the Family Courts Act, apply. Section 19 of the Family Courts Act, provides for remedy of appeal and revision against orders passed under the Family Courts Act. Section 19(1) of the Family Courts Act itself provides that an appeal against an order, which is interlocutory in nature, would not be maintainable. 27. Apparently, though section 19 of the Family Courts Act, has been given over-riding effect over the provisions of any other law, there is nothing to indicate that there is a conflict between the provisions of the Hindu Marriage Act or the Family Courts Act. 28. In such circumstances, in case an order under section 24 of the Hindu Marriage Act, is not treated to be an interlocutory order and is held to be appealable under the provisions of section 19 of the Family Courts Act, then in those areas where a Family Court has been notified the orders passed under section 24 of the Hindu Marriage Act, would be appealable whereas in those areas of the State where a Family Court has not been notified as is alleged to be the situation in the present case, the orders passed under section 24 of the Hindu Marriage Act, would not be appealable in view of the provisions of section 28 of the Hindu Marriage Act, leading to a situation where different remedies would be available against the same kind of orders. 29. 29. In such cases it is the duty of the Courts to harmonize the provisions of the two Acts to ensure that there is parity and uniformity in respect of the procedure prescribed by law and, therefore, we are of the considered opinion that when the provisions of the two statutes are harmoniously construed, no appeal against an order passed under section 24 of the Hindu Marriage Act, can be held to be maintainable under the provisions of the Family Courts Act. 30. The view taken by us is strengthened by the fact that the legislature, in spite of making substantial amendment in the Hindu Marriage Act after 1984, has chosen to retain the provisions of section 28 of the Act as it is and has not amended the provisions of section 28 of the Act, providing for an appeal against an order passed under section 24 of the Hindu Marriage Act. 31. When the provisions of section 19 of the Family Courts Act, are interpreted keeping the aforesaid principles in mind, it is clear that no appeal against an order passed under section 24 of the Hindu Marriage Act, can be filed under section 19 of the Family Courts Act. 32. As a result of the aforesaid discussion, we are in respectful disagreement with the decision of the Uttarakhand High Court rendered in the case of Rahul Samrat Tandon (supra), the Full Bench decision of the Rajasthan High Court in the case of Kavita Vyas (supra) and the Full Bench decision of the Allahabad High Court in the case of Kiran Bala Srivastava vs. Jai Prakash Srivastava, 2005(23) LCD 1, as the said decisions have not taken into consideration the decision of the Supreme Court rendered in the case of Capt. Ramesh Chandra Kaushal (supra), and respectfully agree with the view taken by the Full Bench of the Orissa High Court in the case of Swarna Prava Tripathy (supra) and the Full Bench decision of the Patna High Court in the case of Neelam Kumari Sinha (supra). 33. Ramesh Chandra Kaushal (supra), and respectfully agree with the view taken by the Full Bench of the Orissa High Court in the case of Swarna Prava Tripathy (supra) and the Full Bench decision of the Patna High Court in the case of Neelam Kumari Sinha (supra). 33. In view of the aforesaid discussion, we are of the considered opinion that the Division Bench decision of this Court rendered in the case of Shailesh Mishra (supra) relying on the Division Bench decision of this Court rendered in the case of Aruna Choudhary (supra) lays down the correct law, whereas the decision of the Division Bench in the case of Prafful Kumar (supra) relying on the decision of the Division Bench of this Court rendered in the case of Raghvendra Singh Choudhary (supra) does not lay down the correct law. 34. We are also of the considered opinion that the decision in the case of Raghvendra Singh Choudhary (supra) has lost significance and does not lay down the correct law as it was passed in ignorance of the decision of the Supreme Court rendered in the case of Capt. Ramesh Chandra Kaushal (supra) and related to interpretation of the Letters Patent which has since been repealed and replaced by the Adhiniyam of 2005, which specifically prohibits filing of an appeal against an interlocutory order and that provision has been separately interpreted by the Full Bench decision in the case of Arvind Kumar Jain (supra). 35. The decision in the case of Prafful Kumar (supra) and Raghvendra Singh Choudhary (supra) are accordingly over-ruled. 36. The questions, as referred to this Full Bench, are answered accordingly. The matter is now directed to be placed before the Single Bench for adjudication on merits. 37. It is made clear that the issue as to whether the provisions of the Family Courts Act, would apply to the facts of the present case or not or whether proceedings have to be taken up by the party under the provisions of the Hindu Marriage Act and whether the Court passing the impugned order was a Court duly notified as a Family Court under the provisions of the Family Courts Act, etc., are all kept open for adjudication and the parties would be at liberty to raise the same before the learned Single Bench.