JUDGMENT
Balakrishnan, J.
1. The respondent in O. P. No. 343/96 on the file of the Family Court, Ernakulam is the appellant. The respondent herein filed a petition before the Family Court for a declaration of her right over one item of immovable property and also for partition and separate possession of a share in another item of immovable property. The respondent alleged that her marriage with the appellant was on 3-1-1988 and two children were born in the wed-lock. The respondent alleged that the appellant acquired 9 cents of land mentioned as ‘A’ schedule in the petition in his name with the funds provided by the respondent. The respondent also contended that ‘B’ Schedule property was purchased by the appellant with the funds raised by him by selling the gold ornaments of the respondent. The appellant is working in a Gulf country. It is admitted that the appellant divorced the respondent on 1-11-1995 in accordance with the Muslim rites.
2. The appellant filed a counter statement before the Family Court denying the allegations contained in the petition. He had also raised a contention that at the time of filing of the petition by the respondent, she was no longer the wife of the appellant and there was no valid subsisting marriage between the appellant and the respondent and, therefore, the petition for declaration of her right over the properly and partition and separate possession of a share in another item of immovable property held by the appellant was not maintainable and the Family Court has no jurisdiction to entertain such a petition.
3. The Family Court Judge considered the objections and held that under Clause (c) of Explanation to Section 7(1) of the Family Courts Act, the petition filed by the respondent herein
was maintainable. This finding of the Family Court is challenged in the appeal.
4. We heard the appellant’s counsel and counsel for the respondent. According to the appellant’s counsel, a petition for declaration and partition of the properly could he filed by a person who is the party to the subsisting marriage and once the marriage is dissolved, the respondent could not be taken as a party to the marriage and it is argued that the Family Court Judge went wrong in holding that the petition was maintainable. The respondent, on the other hand, contended that she was the wife of the appellant and the petition of this nature is maintainable under Section 7(1)(c) of the Family Courts Act. The respondent has also raised a contention that the appeal is not maintainable, as an appeal under Section 19(1) of the Family Court Act would lie only against the final order and not against an interlocutory order.
4A. We shall first consider the maintainability of the appeal. An issue was framed by the Family Court regarding the maintainability of the petition and the issue was considered as a preliminary issue and an order was passed by the Family Court. The finding of the Family Court that it has got jurisdiction to entertain the petition will certainly affect the rights of the parties. An appeal may not lie against an interlocutory order which does not affect the rights of the parties. The expression “interlocutory order” has to be understood in the context of the meaning of the expression “case decider!” in Section 115 of the Code of Civil Procedure. It was held by a Division Bench of this Court consisting of one of us (Patnaik, J.) in Union of India v. India Cements Ltd., (1996 (1) Ker LT SN at page 40– Case No. 52): (1996 A.I.H.C. 3047) that:
“Where during the proceeding some order is passed which adjudicates for the purpose of the suit some rights or obligations of the parties in controversy, it can be construed as a case decided. An interlocutory order which did not adjudicate upon or determine any question relating to the rights of the parties does not amount to a case decided. The expression “case decided” is not limited in its import to the entirety of the matter in dispute in an action. Case includes a part of the case. The expression case does not always mean the whole suit.”
In the instant case also the question of
jurisdiction was considered as a preliminary issue and that was held against the appellant.
5. Learned counsel for the respondent made a reference to the decision reported in Major Raja P. Singh v. Surendra Kumari, (1993) 1 D.M.C. 285 : (AIR 1991 Rajasthan 133) wherein it was held that the order rejecting or allowing an amendment application could only be construed as an interlocutory order and no appeal is maintainable under Section 19(1) of the Family Courts Act. The said decision has no application to the facts of this case as the appellant therein had effective remedy of challenging the order in an appeal to be filed, if any, against the final judgment in the case. The Supreme Court also had occasion to consider the question of interlocutory order in V.C. Shukla v. State, AIR 1980 SC 962 therein it was held that:
“Ordinarily speaking, the expression interlocutory in legal parlance is understood in contra distinction to what is styled as final. In the course of a judicial proceeding before a court, for judicially determining the main dispute brought to the court for its resolution, a number of situations arise, when that court goes on disposing of ancillary disputes raised by parties to the proceeding by making orders and unless the order finally disposes of a proceeding in a court all such orders during the course of a trial would be broadly designated “interlocutory” orders. Such interlocutory orders are steps, taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings.”
We do not think that the impugned order is an order passed like that. It has finally decided the rights of the parties as regards the maintainability of the petition. Therefore, we hold that an appeal would lie against such an order under Section 19(1) of the Family Courts Act.
6. Coming to the question of maintainability of a proceeding before the Family Court, the question to be considered is whether a divorced wife or husband can maintain a petition before the Family Court in respect of the property of any of the parties. Learned counsel for the appellant drew our attention to the Objects and Reasons given to this Act. In the Objects and Reasons it is stated that:
“Several associations of woman, other organisations and individuals have urged, from
time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.”
The nature of the proceedings that may come up for consideration before the Family Court are also indicated in the Objects and Reasons. It is stated that the Family Court is intended to provide an exclusive jurisdiction of the matters relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person, the property of the spouses or of either of them, the declaration as to the legitimacy of any person, guardianship of a person or the custody of any minor, maintenance including proceedings under Chapter IX of the C.P.C. Relying on the Objects and Reasons, it was contended by the appellant’s counsel that once the marriage is dissolved, they are independent persons and if any dispute arose between them, it should be decided by an ordinary civil Court. Learned counsel also contended that if such proceedings arc dragged to Family Court for determination of their right, the defending party will have the benefit of adversary litigation. It is also contended that in respect of the proceedings in the Family Court there is a marked difference, in the sense that summary procedure is prescribed for the trial of the petition. It is also pointed out that the Family Court is competent to consider any statement or report as an item of evidence, even if it is not strictly admissible under the provisions of the Indian Evidence Act. Reference was made to Sections 14and 15 of the Act.
7. Section 7 of the Family Courts Act gives the various types of proceeding sover which the Family Court has jurisdiction to try. Section 7 (l)(c) is one such proceedings which reads as follows :
“a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of either of them.”
We are unable to accept the contention of the appellant that the parties to a marriage referred to therein shall only confine to the parties to the subsisting marriage. The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only by a forum like the Family Court. The expression “parties to a marriage” used under Section 7( 1 )(c) of the Family Courts Act is to be construed having due regard to the objects and reasons of the Family Courts Act. It has been observed in the book “Craies on Statue Law” 7th Edition at page 102 that:
“a court of justice- will take into consideration the spirit and meaning of the Act apart from the words; in other words, there is still, as Jessel M.R. said, in Re Bethlem Hospital, such a thing as construing an Act according to its intent, though not according to its words.”
The Family Court Judge was perfectly right in holding that the disputes between the appellant and the respondent are to be decided by the Family Court and it has got jurisdiction under Section 7″ (1) (c) of the Family Courts Act, even though the appellant and the respondent are no longer parties to a subsisting marriage.
8. Accordingly, we uphold the finding of the’ Family Court and dismiss this appeal.
