Telangana High Court
Mr. Ch. Rakesh vs Ms. P. Mounika on 13 March, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL No.210 OF 2023
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. Pasham Mohith, learned counsel for the appellant
and Mr. Bh. Sai Vikas, learned counsel for the respondent.
2. The present appeal is filed by the appellant - husband under
Section - 19 of the Family Courts Act, 1984 (for short 'Act, 1984')
challenging the order dated 20.09.2023 in I.A. No.660 of 2023 in O.P.
No.524 of 2023 passed by learned Judge, I Additional Family Court -
cum - XIV Additional Metropolitan Sessions Judge, Hyderabad.
3. The appellant - husband had filed a petition vide G.W.O.P.
No.524 of 2023, under Sections - 7, 9, 10 and 17 of the Guardians and
Wards Act, 1890 (for 'Act, 1890'), to declare him as guardian of
minor children viz., Rudra and Sahasra and for their custody. Along
with the said O.P., he had filed a petition under Section - 12 of the
Act, 1890, to grant interim custody of the minor children every week
from Friday 12.00 P.M. to Monday 8.20 P.M.
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4. Vide the impugned order, dated 20.09.2023, learned Judge,
Family Court, dismissed the said petition, however, to create
emotional bond between the appellant herein and two minor children,
visitation rights were granted by permitting him to visit the minor
children on every Saturday and Sunday from 2.00 P.M. to 5.00 P.M. at
the place of choice of the respondent and the appellant was directed to
give prior intimation to the respondent by enabling her to mention her
place of choice and to bring the minor children along with her to the
place which was decided by her. Feeling aggrieved by the said order,
the husband preferred the present appeal.
5. Learned counsel for the respondent - wife raised an objection
with regard to maintainability of the present appeal under Section - 19
of the Act, 1984 on the ground that the impugned order is only an
Interlocutory Order and, therefore, the present appeal under Section -
19 of the Act, 1984 is not maintainable.
6. Mr. Pasham Mohith, learned counsel for the appellant,
would contend that the impugned order is trapping of finality. It is not
an interlocutory order. It is an intermediary order and it attained
finality. He has placed reliance on the decisions in Shah Babulal
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Khimji v. Jayaben D. Kania 1; Dr. Geetanjali Aggarwal v. Dr.
Manoj Aggarwal 2; and Jitendra Kumar Dewangan v. Smt. Neeti
Dewangan 3.
7. Whereas, Mr. Bh. Sai Vikas, learned counsel for the
respondent, would contend that the impugned order is an interlocutory
order, O.P. is still pending and, therefore, the present appeal filed
under Section - 19 of the Act, 1984 is not maintainable. He placed
reliance on the decisions in Dhanwanti Joshi v. Madhav Unde 4;
Vikram Vir Vohra v. Shalini Bhalla 5; Seema v. Sanjeev Godha 6
and Colonel Ramesh Pal Singh v. Sughandhi Aggarwal 7.
8. In the light of the above, it is relevant to note that similar
issue fell for consideration before a Full Bench of Allahabad at
Lucknow Bench in Kiran Bala Srivastava v. Jai Prakash
Srivastava 8. In the said case, husband filed a suit vide O.S. No.77 of
1987 against the wife under Section - 13 of the Hindu Marriage Act,
1955 in a Family Court at Lucknow. Wife moved an application
. (1981) 4 SCC 8
. MAT. App.(FC) 126 of 2019, decided on 22.10.2021
. FA (MAT) No.125 of 2022, decided on 21.09.2022
. (1998) 1 SCC 112
. (2010) 4 SCC 409
. 1993 SCC OnLine Raj.216
. 2019 LawSuit (Del.) 2957
. MANU/UP/2771/2004
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under Section - 24 of the Act, 1955 claiming to herself and to her
daughter pendent lite maintenance @ Rs.8,000/- a month and the
litigation expenses to the tune of Rs.11,000/-. The Family Court
therein had passed an order directing the husband to pay pendent lite
maintenance @ Rs.500/- a month from the date of application and also
to pay Rs.2,000/- in lump sum towards expenses of the litigation.
Wife has filed an application seeking enhancement of the monthly
maintenance. Husband has filed an application under Order XLVII
read with 151 of CPC to review the said orders i.e., awarding an
amount of Rs.1,000/- towards pendent lite maintenance and
enhancement order dated 28.07.2022. The Family Court disposed of
the said application vide order dated 07.03.2002 directing the husband
to pay pendent lite maintenance in terms of earlier order dated
16.07.2001, but subject to adjustment of amount paid pursuant to the
orders passed under Section - 125 of Cr.P.C. Challenging the said
order, wife preferred an appeal. The said appeal was listed before a
Division Bench. Vide order dated 03.04.2002, a Division Bench
referred the matter to the full Bench to answer the following
reference:
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"Whether appeal under Section - 19 of the Family Act,
1984, would lie against order passed under Section - 24
of the Hindu Marriage Act for grant of interim
maintenance."
9. Full Bench of the Allahabad High Court at Lucknow Bench,
referring to the provisions of the Hindu Marriage Act, Section - 19 of
the Act, 1984 and the principle laid down in several judgments
including the judgment of the Apex Court in Shah Babulal Khimji1
held that since the orders under Section - 24 of the Hindu marriage
Act granting pendent lite maintenance is a judgment, so appeal will lie
under Section - 19 (1) of the Act, 1984.
10. A Full Bench of Rajasthan High Court at Jodhpur in
Kavita Vyas v. Deepak Dave 9 relying on the decision in Shah
Babulal Khimji1 and Kiran Bala Srivastava8 and also several other
judgments held that an appeal shall lie under Section - 19(1) of the
Act, 1984 against an order passed by Family Court under Section - 24
of Hindu Marriage Act.
. AIR 2018 Raj. 72
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11. Similar issue fell for consideration before a Division Bench
of Delhi High Court in Manish Aggarwal v. Seema Aggarwal 10.
The Division Bench considered provisions of the Hindu Marriage Act,
Section - 19 of the Act, 1984 and the principle laid down by the Apex
Court in Shah Babulal Khimji1, Amarnath v. State of Haryana 11,
Madhu Limaye v. State of Maharashtra 12 and V.C. Shukla v.
State 13 in paragraph No.25 and held as follows:
"25. We, thus, conclude as under:
i. In respect of orders passed under Sections 24 to
27 of the HM Act appeals would lie under Section
19 (1) of the said Act to the Division Bench of this
Court in view of the provisions of subsection (6) of
Section 19 of the said Act, such orders being in the
nature of intermediate orders. It must be noted that
sub-section (6) of Section 19 of the said Act is
applicable only in respect of sub-section (1) and
not sub-section (4) of Section 19 of the said Act.
ii. No appeal would lie under Section 19 (1) of the
said Act qua proceedings under Chapter 9 of the
Cr.P.C. (Sections 125 to 128) in view of the
mandate of sub-section (2) of Section 19 of the
said Act.
. MANU/DE/4612/2012
. AIR 1977 SC 2185
. AIR 1978 SC 47
. 1980 (2) SCR 380
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iii. The remedy of criminal revision would be
available qua both the interim and final order
under Sections 125 to 128 of the Cr.P.C. under
sub-section (4) of Section 19 of the said Act.
iv. As a measure of abundant caution we clarify
that all orders as may be passed by the Family
Court in exercise of its jurisdiction under Section 7
of the said Act, which have a character of an
intermediate order, and are not merely
interlocutory orders, would be amenable to the
appellate jurisdiction under sub-section (1) of
Section 19 of the said Act."
12. The Allahabad High Court in Isma Alam v. Irshad Alam 14
and Smt. Varsha Lakhmani v. Hitesh Wadhva 15 took the same
view.
13. In Shah Babulal Khimji1, paragraph Nos.113 to 120 are
relevant and the same are extracted hereunder:
113. Thus, under the Code of Civil Procedure, a
judgment consists of the reasons and grounds for a
decree passed by a court. As a judgment constitutes the
reasons for the decree it follows as a matter of course
that the judgment must be a formal adjudication which
conclusively determines the rights of the parties with
regard to all or any of the matters in controversy. The
. 2011 LawSuit (All) 149
. 2008 LawSuit (All) 476
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concept of a judgment as defined by the Code of Civil
Procedure seems to be rather narrow and the limitations
engrafted by sub-section (2) of Section 2 cannot be
physically imported into the definition of the word
"judgment" as used in clause 15 of the letters patent
because the letters patent has advisedly not used the
terms "order" or "decree" anywhere. The intention,
therefore, of the givers of the letters patent was that the
word "judgment" should receive a much wider and more
liberal interpretation than the word "judgment" used in
the Code of Civil Procedure. At the same time, it cannot
be said that any order passed by a trial Judge would
amount to a judgment; otherwise there will be no end to
the number of orders which would be appealable under
the letters patent. It seems to us that the word
"judgment" has undoubtedly a concept of finality in a
broader and not a narrower sense. In other words, a
judgment can be of three kinds:
(1) A final judgment.-- A judgment which decides
all the questions or issues in controversy so far as
the trial Judge is concerned and leaves nothing
else to be decided. This would mean that by
virtue of the judgment, the suit or action brought
by the plaintiff is dismissed or decreed in part or
in full. Such an order passed by the trial Judge
indisputably and unquestionably is a judgment
within the meaning of the letters patent and even
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amounts to a decree so that an appeal would lie
from such a judgment to a Division Bench.
(2) A preliminary judgment.--This kind of a
judgment may take two forms--(a) where the
trial Judge by an order dismisses the suit without
going into the merits of the suit but only on a
preliminary objection raised by the defendant or
the party opposing on the ground that the suit is
not maintainable. Here also, as the suit is finally
decided one way or the other, the order passed by
the trial Judge would be a judgment finally
deciding the cause so far as the Trial Judge is
concerned and therefore appealable to the larger
Bench. (b) Another shape which a preliminary
judgment may take is that where the trial Judge
passes an order after hearing the preliminary
objections raised by the defendant relating to
maintainability of the suit, e.g., bar of
jurisdiction, res judicata, a manifest defect in the
suit, absence of notice under Section 80 and the
like, and these objections are decided by the trial
Judge against the defendant, the suit is not
terminated but continues and has to be tried on
merits but the order of the trial Judge rejecting
the objections doubtless adversely affects a
valuable right of the defendant who, if his
objections are valid, is entitled to get the suit
dismissed on preliminary grounds. Thus, such an
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order even though it keeps the suit alive,
undoubtedly decides an important aspect of the
trial which affects a vital right of the defendant
and must, therefore,be construed to be a
judgment so as to be appealable to a larger
Bench.
(3) Intermediary or interlocutory judgment.-- Most
of the interlocutory orders which contain the
quality of finality are clearly specified in clauses
(a) to (w) of Order 43 Rule 1 and have already
been held by us to be judgments within the
meaning of the letters patent and, therefore,
appealable. There may also be interlocutory
orders which are not covered by Order 43 Rule 1
but which also possess the characteristics and
trappings of finality in that, the orders may
adversely affect a valuable right of the party or
decide an important aspect of the trial in an
ancillary proceeding. Before such an order can be
a judgment the adverse effect on the party
concerned must be direct and immediate rather
than indirect or remote. For instance, where the
trial Judge in a suit under Order 37 of the Code of
Civil Procedure refuses the defendant leave to
defend the suit, the order directly affects the
defendant because he loses a valuable right to
defend the suit and his remedy is confined only to
contest the plaintiff's case on his own evidence
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without being given a chance to rebut that
evidence. As such an order vitally affects a
valuable right of the defendant it will
undoubtedly be treated as a judgment within the
meaning of the letters patent so as to be
appealable to a larger Bench. Take the converse
case in a similar suit where the trial Judge allows
the defendant to defend the suit in which case
although the plaintiff is adversely affected but the
damage or prejudice caused to him is not direct
or immediate but of a minimal nature and rather
too remote because the plaintiff still possesses his
full right to show that the defence is false and
succeed in the suit. Thus, such an order passed by
the trial Judge would not amount to a judgment
within the meaning of clause 15 of the letters
patent but will be purely an interlocutory order.
Similarly, suppose the trial Judge passes an order
setting aside an ex parte decree against the
defendant, which is not appealable under any of
the clauses of Order 43 Rule 1 though an order
rejecting an application to set aside the decree
passed ex parte falls within Order 43 Rule 1
clause (d) and is appealable, the serious question
that arises is whether or not the order first
mentioned is a judgment within the meaning of
letters patent. The fact, however, remains that the
order setting aside the ex parte decree puts the
defendant to a great advantage and works serious
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injustice to the plaintiff because as a consequence
of the order, the plaintiff has now to contest the
suit and is deprived of the fruits of the decree
passed in his favour. In these circumstances,
therefore, the order passed by the trial Judge
setting aside the ex parte decree vitally affects the
valuable rights of the plaintiff and hence amounts
to an interlocutory judgment and is therefore,
appealable to a larger Bench.
114. In the course of the trial, the trial Judge may
pass a number of orders whereby some of the various
steps to be taken by the parties in prosecution of the suit
may be of a routine nature while other orders may cause
some inconvenience to one party or the other, e.g., an
order refusing an adjournment, an order refusing to
summon an additional witness or documents, an order
refusing to condone delay in filing documents, after the
first date of hearing an order of costs to one of the
parties for its default or an order exercising discretion in
respect of a procedural matter against one party or the
other. Such orders are purely interlocutory and cannot
constitute judgments because it will always be open to
the aggrieved party to make a grievance of the order
passed against the party concerned in the appeal against
the final judgment passed by the trial Judge.
115. Thus, in other words every interlocutory order
cannot be regarded as a judgment but only those orders
would be judgments which decide matters of moment or
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affect vital and valuable rights of the parties and which
work serious injustice to the party concerned. Similarly,
orders passed by the trial Judge deciding question of
admissibility or relevancy of a document also cannot be
treated as judgments because the grievance on this score
can be corrected by the appellate court in appeal against
the final judgment.
116. We might give another instance of an
interlocutory order which amounts to an exercise of
discretion and which may yet amount to a judgment
within the meaning of the letters patent. Suppose the
trial Judge allows the plaintiff to amend his plaint or
include a cause of action or a relief as a result of which a
vested right of limitation accrued to the defendant is
taken away and rendered nugatory. It is manifest that in
such cases, although the order passed by the trial Judge
is purely discretionary and interlocutory, it causes gross
injustice to the defendant who is deprived of a valuable
right of defence to the suit. Such an order, therefore,
though interlocutory in nature contains the attributes and
characteristics of finality and must be treated as a
judgment within the meaning of the letters patent. This
is what was held by this Court in Shanti Kumar
case [(1974) 2 SCC 387:AIR 1974 SC 1719 : (1975) 1
SCR 550] , as discussed above.
117. Let us take another instance of a similar order
which may not amount to a judgment. Suppose, the trial
Judge allows the plaintiff to amend the plaint by adding
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a particular relief or taking an additional ground which
may be inconsistent with the pleas taken by him but is
not barred by limitation and does not work serious
injustice to the defendant who would have ample
opportunity to disprove the amended plea taken by
plaintiff at the trial. In such cases, the order of the trial
Judge would only be a simple interlocutory order
without containing any quality of finality and would
therefore not be a judgment within the meaning of
clause 15 of the letters patent.
118. The various instances given by us would
constitute sufficient guidelines to determine whether or
not an order passed by the trial Judge is a judgment
within the meaning of the letters patent. We must
however hasten to add that instances given by us are
illustrative and not exhaustive. We have already referred
to the various tests laid down by the Calcutta, Rangoon
and Madras High Courts. So far as the Rangoon High
Court is concerned we have already pointed out that the
strict test that an order passed by the trial Judge would
be a judgment only if it amounts to a decree under the
Code of Civil Procedure, is legally erroneous and
opposed to the very tenor and spirit of the language of
the letters patent. We, therefore, do not approve of the
test laid down by the Rangoon High Court and that
decision therefore has to be confined only to the facts of
that particular case because that being a case of transfer,
it is manifest that no question of any finality was
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involved in the order of transfer. We would like to adopt
and approve of generally the tests laid down by Sir
White, C.J., in Tuljaram Row case [ILR 35 Mad 1]
(which seems to have been followed by most of the
High Courts) minus the broader and the wider attributes
adumbrated by Sir White, C.J., or more explicitly by
Krishnaswamy Ayyar, J. as has been referred to above.
119. Apart from the tests laid down by Sir White,
C.J., the following considerations must prevail with the
court:
(1) That the trial Judge being a senior court with vast
experience of various branches of law occupying
a very high status should be trusted to pass
discretionary or interlocutory orders with due
regard to the well settled principles of civil
justice. Thus, any discretion exercised or routine
orders passed by the trial Judge in the course of
the suit which may cause some inconvenience or,
to some extent, prejudice to one party or the other
cannot be treated as a judgment otherwise the
appellate court (Division Bench) will be flooded
with appeals from all kinds of orders passed by
the trial Judge. The courts must give sufficient
allowance to the trial Judge and raise a
presumption that any discretionary order which
he passes must be presumed to be correct unless
it is ex facie legally erroneous or causes grave
and substantial injustice.
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(2) That the interlocutory order in order to be a
judgment must contain the traits and trappings of
finality either when the order decides the
questions in controversy in an ancillary
proceeding or in the suit itself or in a part of the
proceedings.
(3) The tests laid down by Sir White, C.J. as also by
Sir Couch, C.J. as modified by later decisions of
the Calcutta High Court itself which have been
dealt with by us elaborately should be borne in
mind."
120. Thus, these are some of the principles which
might guide a Division Bench in deciding whether an
order passed by the trial Judge amounts to a judgment
within the meaning of the letters patent. We might,
however, at the risk of repetition give illustrations of
interlocutory orders which may be treated as judgments:
(1) An order granting leave to amend the plaint by
introducing a new cause of action which completely
alters the nature of the suit and takes away a vested
right of limitation or any other valuable right
accrued to the defendant.
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an
action under Order 37, of the Code of Civil
Procedure.
(4) An order rescinding leave of the trial Judge granted
by him under clause 12 of the letters patent.
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(5) An order deciding a preliminary objection to the
maintainability of the suit on the ground of
limitation, absence of notice under Section 80, bar
against competency of the suit against the defendant
even though the suit is kept alive.
(6) An order rejecting an application for a judgment on
admission under Order 12 Rule 6.
(7) An order refusing to add necessary parties in a suit
under Section 92 of the Code of Civil Procedure.
(8) An order varying or amending a decree.
(9) An order refusing leave to sue in forma pauperis.
(10) An order granting review.
(11) An order allowing withdrawal of the suit with
liberty to file a fresh one.
(12) An order holding that the defendants are not
agriculturists within the meaning of the special law.
(13) An order staying or refusing to stay a suit under
Section 10 of the Code of Civil Procedure.
(14) An order granting or refusing to stay execution of
the decree.
(15) An order deciding payment of court fees against the
plaintiff."
Thus, the Apex Court ruled out that the order or interlocutory
possessing the characteristics and trappings of finality are affecting
valuable right of the party or decide an important aspect of the trial in
main or in an ancillary proceeding will be judgment.
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14. In Amarnath11 and Madhu Limaye12, the expression
'interlocutory order' appearing in Section - 397 (2) of Cr.P.C. fell for
consideration. In Amarnath11 relying on its earlier judgment in
Mohan Lal Magan Lal Thacker v. State of Gujarat 16, the Apex
court held as under:
"The term "interlocutory order" is a term of well-
known legal significance and does not present any
serious difficulty. It has been used in various
statutes including the Code of Civil Procedure,
Letters Patent of the High Courts and other like
statutes. In Webster's New World Dictionary
"interlocutory" has been defined as an order other
than final decision. Decided cases have laid down
that interlocutory orders to be appealable must be
those which decide the right? and liabilities of the
parties concerning a particular aspect. It seems to
us that the term "interlocutory order" in Section
397(2) of the 1973 Code has been used in a
restricted sense and not in any broad or artistic
sense. It merely denotes orders of a purely interim
or temporary nature which do not decide or touch
the important rights or the liabilities of the parties.
Any order which substantially affects the rights of
the accused, or decides certain rights of the parties
cannot be said to be an interlocutory order so as to
. AIR 1968 SC 733
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bar a revision to the High Court against that order,
because that would be against the very object
which formed the basis for insertion of this
particular provision in Section 397 of the 1973
Code. Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for
bail, calling for reports and such other steps in aid
of the pending proceeding may no doubt amount to
interlocutory orders against which no revision
would lie under Section 397(2) of the 1973 Code.
But orders which are matters of moment and which
affect or adjudicate the rights of the accused or a
particular aspect of the trial cannot be said to be
interlocutory order so as to be outside the purview
of the revisional jurisdiction of the High Court."
15. In Madhu Limaye12, the Apex Court observed that some
kinds of order may fall in between 'final order' and 'interlocutory
order' and the bar in Section - 397 (2) of Cr.P.C. was not meant to be
attracted to such kind of 'intermediary orders'. What was not final
was not necessarily for purposes of sub-section (2) of Section 397 of
Cr.P.C.
16. In Kiran Bala Srivastava8, a Full Bench of Allahabad
High Court held that order of pendent lite maintenance has all the
characteristics and trappings as it decides the valuable rights and
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liabilities of the parties to the proceedings. Insofar as those rights and
liabilities are concerned, the order is final.
17. In the light of the principle laid down in the aforesaid
judgments, coming to the facts of the case on hand, the appellant -
husband preferred the present appeal challenging the order dated
20.09.2023 in I.A. No.660 of 2023 in O.P. No.524 of 2023. The said
application vide I.A. No.660 of 2023 was filed by the appellant -
husband against the respondent - wife seeking interim custody of the
minor children. Vide impugned order dated 20.09.2023, learned
Family Court dismissed the said application, however, granted
visitation rights to the appellant - husband. It was an application filed
under Section - 12 of the Act, 1890. The learned Family Court
considered the pleadings of the parties, rival contentions and framed
the following point for consideration:
"Whether the present petition filed by Petitioner
seeking under Sec.12 of guardian and wards Act with a
prayer to grant interim custody of the minor children
i.e., Baby Chilaka Rudra and Chilaka Sahasra to the
petitioner every week from now on from Friday
12p.m., to Monday 8.20 p.m., otherwise the petitioner
as well as the minor child would be put to grave
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irreparable loss injury and hardships which cannot be
compensated at any further point of time, can be
allowed?
On consideration of the above point, learned Family Court dismissed
the said application, however, granted visitation rights to the
appellant.
18. It is also relevant to extract Section - 12 of the Act, 1890
and the same is as under:
"12. Power to make interlocutory order for
production of minor and interim protection of
person and property - (1)The Court may direct
that the person, if any, having the custody of the
minor, shall produce him or cause him to be
produced at such place and time and before such
person as it appoints, and may make such order for
the temporary custody and protection of the person
or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be
compelled to appear in public, the direction under
sub-section (1) for her production shall require her
to be produced in accordance with the customs and
manners of the country.
(3) Nothing in this section shall authorize
a) the Court to place a female minor in the
temporary custody of a person claiming to
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be her guardian on the ground of his being
her husband, unless she is already in his
custody with the consent of her parents, if
any, or
b) any person to whom the temporary custody
and protection of the property of a minor is
entrusted to dispossess otherwise than by
due course of law any person in possession
of any of the property."
19. It is relevant to extract Section - 19 of the Act, 1984 and the
same is as under:
"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 of 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 (59 of 1991).
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(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 and 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."
20. Learned counsel for the respondent relied upon the
principle laid down by the Apex Court in Colonel Ramesh Pal
Singh7 wherein an appeal under Section - 19 of the Act, 1984 was
filed challenging the order dated 16.10.2017 relates to an application
which was brought under Section - 12 of the Act, 1890. Vide the said
order, custody of both the children was handed over to the wife.
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While the proceedings before the Family Court were pending,
impugned order dated 16.10.2017 was passed. Therefore, on
examination of the facts therein and also considering the fact that the
Family Court came into force in the year 1984 i.e., three (03) years
after pronouncement of judgment in Shah Babulal Khimji1 and that
the impugned order dated 16.10.2017 was passed which is pending
disposal, the Delhi High Court held that it is an interlocutory order
and an appeal under Section - 19 of the Act, 1984 would not lie
against the said order being barred under Section - 19 (1) of the Act,
1984. In view of the same, the facts in Kiran Bala Srivastava8,
Kavita Vyas9 and Manish Aggarwal10 are different to the facts of the
present case.
21. In the light of the aforesaid legal position, coming to the
facts of the present case, as discussed above, husband had filed the
said GWOP No.524 of 2023 to declare him as guardian of the minor
children. Along with the said petition, he had filed a petition under
Section - 12 of the Act, 1890, to grant interim custody of the minor
children. The same was allowed in part. Thus, the rights of the
parties were affected substantially and there is trapping of finality in
the impugned order. The impugned order is not an interlocutory
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order and it is intermediary order. Therefore, the present appeal filed
by the appellant is maintainable.
22. Mr. Pasham Mohith, learned counsel for the appellant and
Mr. Bh. Sai Vikas, learned counsel for the respondent, made their
submissions extensively. Admittedly, the minor children are twins
and they are aged 4 years. It is a tender age. They need welfare and
protection of the mother. The appellant is the Chief Public Relations
Officer in Indian Railway Traffic Service (IRTS). Though in the
cause title, it is mentioned that the respondent is a private employee
and during interaction, she has informed that she is not working in any
Company. On consideration of the said aspects only, learned Family
Court dismissed the aforesaid I.A., however, granted visitation rights
to create emotional bond between the appellant and the minor
children. It is a reasoned order. There is no error in it. The appellant
herein failed to make out any case to interfere with the said reasoned
order. Therefore, the present appeal fails and the same is liable to be
dismissed.
23. The present Appeal is accordingly dismissed. However,
after some time, once emotional bond between the appellant and the
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minor children is created, the appellant herein is at liberty to file a
fresh application seeking interim custody of the minor children, and it
is for the Family Court to decide the same in accordance with law. In
the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending in the
appeal shall stand closed.
___________________
K. LAKSHMAN, J
___________________
P. SREE SUDHA, J
13th March, 2024
Mgr
