ORDER
Kurdukar, J.
1. This First Appeal is directed against an order dated September 11, 1990 passed by the Family Court, Bombay, on Notice of Motion No. 5908 of 1989 in M. J. Petition No. 1036 of 1989. By this impugned order, the learned Judge of the Family Court directed the Appellant-petitioner (who is hereinafter referred to as the ‘husband’) to pay Rs. 10,000/ – per month towards maintenance to the respondent-original respondent (who is hereinafter referred to as the ‘wife) and Rs. 5,000/- to each of the two minor children from the date of the Notice of Motion. The learned Judge also directed the husband to pay Rs. 10,000/- to the wife toward costs for defending the M. J. Petition.
2. M. J. Petition No. 1036 of 1989 is filed by the husband claiming a decree for judicial separation and for custody of the two minor children viz. Shikha and Sneha. This petition was originally filed on 14th September, 1989 in the Bombay City Civil Court at Bombay. During the pendency of the M. J. Petition, the wife took out Notice of Motion for interim reliefs praying for pendente lite maintenance of Rs. 25,000/- per month from August, 1988 to herself and Rs. 20,000/- per month to two minor children. The wife also prayed for Rs. 20,000/- towards costs for defending the M. J. Petition. In addition to these principal interim reliefs, the wife also prayed for certain other interim reliefs. Parties in support of the rival claims filed affidavits. During pendency of the proceedings in the City Civil Court, Family Courts under the Family Courts Act, 1984 (for brevity ‘Family Courts Act’) came to be established for Greater Bombay some time in October, 1989 and pursuant thereto, present M. J. Petition along with ancillary proceedings were transferred to the Family Court.
3. The learned Judge after hearing both sides directed the husband to pay Rs. 10,000/-per month to the wife and Rs. 5000/- to each .
child towards maintenance from the date of the Notice of Motion. The learned Judge also directed the husband to pay Rs. 10,000/- to the wife towards costs for defending the petition. It is a common premise that as far as order of maintenance to the wife is concerned, it is passed under section 24 of the Hindu Marriage Act, 1955. The order of maintenance relating to two minor children appears to have been passed under section 26 of the H. M. Act, 1955.
4. In this appeal, the main question that falls for our consideration is as to whether the impugned order is appealable under section 19 of the Family Courts Act. Smt. S. D. Nanavati, learned Counsel appearing for the wife at the threshold urged that the present appeal is not maintainable under section 19 of the Family Courts Act.
5. Before we deal with the preliminary objection as regards maintainability of the appeal, we deem it necessary to refer to relevant provisions under Hindu Marriage Act, 1955 (hereinafter referred to as ‘H. M. Act’) which have got a vital bearing upon the issue of maintainability of the present appeal.
6. In this appeal, we are mainly concerned with the appeal provisions contained in section 28 of the H. M. Act. The H. M. Act is a special statute and section 28 as original stood underwent a substantial change in the year 1976. Unamended section 28 reads as under:
28. “All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in exercise of the original civil jurisdiction are enforced and may be appealed from under any law for the time being in force;
Provided that there shall be no appeal on the subject of costs only.”
Under this unamended provision, appeal was maintainable from all decrees and orders passed under the H. M. Act except against the order of costs. The result of this provision was that there used to be appeals against every order passed under the provisions of the
H. M. Act, except order of costs. This resulted into flooding of appeals in the Appellate Court. The Parliament, therefore, by Act No. 68 of 1976, which came into force on 27th May, 1976, substituted section 28 with substantial changes. In this appeal we are concerned with the amended provisions contained in section 28. We may, therefore, reproduce new section 28 of the H. M. Act. section 28 reads thus:
“S. 28. Appeals from decrees and orders: —
(1) All decrees made by the Court in any proceeding under this Act, shall be subject to the provisions of sub- section (3), be appealable as decrees of the Court made in exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily He from the decisions of the Court given in exercise of its original civil jurisdiction.
(2) Order made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub- section (3) be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.”
As indicated earlier, the impugned order of maintenance pendente lite and costs is made under section 24 of the H. M. Act. As far as order of maintenance of two minor children is concerned, it is made under section 26 of the H. M. Act. From sub- section (2) of section 28 of the H. M. Act it is noticed that no appeal shall lie against the order passed under section 24 of the Act. Appeal under this sub section lay only against the order made under section 25 or 26 of the H. M. Act not being as interlocutory order. It is, therefore, clear that under unamended provisions of sub- section (2) of section 28, right of appeal against
interim orders under sections 24, 25 and 26 of the H. M. Act is expressly taken away. Mr. Rane, learned Counsel appearing for the appellant could not dispute that under Sub section (2) of section 28 of the H. M. Act no appeal shall lie against the interim orders passed under sections 24, 25 and 26 of the H. M. Act. Various High Courts have also interpreted the scope and ambit of section 28(2) of the H. M. Act in the like manner. Just to complete the judgment, we may usefully refer to a judgment of this Court in Dinesh C. Mehta v. Usha D. Mehta . In para. 8, the Division Bench has observed as follows:–
“………………
section 28 of the Hindu Marriage Act provides for appeal. It contemplates appeals against decrees or orders under section 25 or 26 of the Act. The impugned order is neither a decree nor an order under section 25 or 26 of the Act. This order, therefore, does not appear to be appealable.”
Mrs. Nanavati, learned Counsel appearing for the respondent-wife drew our attention to judgments of various other High Courts on this topic. We may only refer to these authorities without adding anything more.
Rajpal v. Dharmavati ; Narendra Kumar Metwas v. Suraj Mehta ; Dilipbhai Patel v. State of Maharashtra .
Thus the legal position that emerges is that under sub- section (2) of section 28 no appeal shall He to the High Court against interim orders passed under sections 24, 25 or 26 of the Act. Under this sub- section reference to section 24 is purposely omitted and this is a pointer to hold that legislature wanted to expressly bar an appeal against any order passed under section 24 of the H. M. Act.
In this appeal, we are called upon to interpret the provisions of section 19 of the Family Courts Act which deals with appeal provisions. Mr. Rane for the Appellant urged that this is a procedural Act. There does not seem to be any dispute that the Family Courts
Act cannot be called a self-contained Code. It is also well settled that an appeal is a creation of statute and whether an appeal lies from a final order or an interlocutory order depend on the provision in that behalf. Provisions of Family Courts Act are made applicable to the metropolitan city of Bombay sometime in October, 1989. Pursuant thereto, Family Courts came to be established some time in October, 1989.
7. We may now advert to the scheme and various relevant provisions contained in the Family Courts Act.
section 2(a) reads thus:
“All other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.”
Chapter II of the Family Courts Act deals with establishment of the Family Courts. Since there is no dispute as regards establishment of the Family Courts in this appeal, it is
unnecessary to set out these provisions.
Chapter III deals with jurisdiction. section 7 reads as under:
7. Jurisdiction (I) subject to the provisions of this Act, a Family Court shall —
(a) have and exercise all the jurisdiction exercisable by any district or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or as the case may be, such subordinate civil court for the area to which jurisdiction of the Family Court extends.
Explanation– The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely–
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the
marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage);
(b) a suit or proceeding for a declaration as . to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a matrimonial relationship;
(e) a suit or a proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise–
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) and
(b) such other jurisdiction as may be conferred on it by any other enactment.”
section 8 deals with exclusion of jurisdiction arid pending proceedings. section 8(a) provides that where a Family Court is established under the Act, no district court or any subordinate civil court referred to in sub section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub section .
As regards proceedings under Chapter IX of the Criminal Procedure Code, section 8(b) provides that no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973.
Clause (c) of section 8 deals with pending
proceedings and it provides that every suit or proceeding of the nature referred to in the explanation to sub- section (1) of section 7 and every proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) which is pending immediately before establishment of such Family Court before any district Court or subordinate Court referred to in that sub- section or as the case may be, before any Magistrate under the said Code, shall stand transferred to the Family Court on the date on which it is established.
It may be stated that Chapter IX of Criminal Procedure Code deals with maintenance
applications under sections 125, 126 and 127 of the Criminal Procedure Code.
Chapter IV deals with procedure, section 17 of the Family Courts Act contains the meaning of the word ‘judgment’. section 17 reads thus:
“Judgment of a Family Court shall contain a concise statement of the case, the point for consideration, the decision thereon and the reasons for such decision.”
section 18 provides procedure for execution of decrees and orders.
Chapter V contains only one section i.e. 19, dealing with appeal provision. Entire controversy centres around section 19 and it reads as under :–
“19. Appeals.– (1) save as provided in sub- section (2) 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 arid law.
(2) No appeal shall lie from a decree of order passed by the Family Court with the consent of the parties.
(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) Except as aforesaid, no appeal or
revision shall lie to any Court from any judgment, order or decree of a Family Court.
(5) An appeal preferred under sub- section (1) shall be heard by a Bench consisting of two or more Judges.”
Chapter VI deals with miscellaneous provisions. In the present case, we are not concerned with any of these provisions and, therefore, we do not reproduce the same.
7A. As stated earlier, the vital question which falls for our consideration in this appeal is as regards interpretation of section 19(1) of the Family Courts Act. More precisely, the interpretation of sub- section (1) of section 19 is a subject-matter of controversy in this appeal. We may, therefore, formulate two questions in that behalf: (1) Whether an appeal lie to the High Court under section 19(1) of the Family Courts Act from an order of maintenance pendente lite passed by the Judge of the Family Court on an application under section 24 of the H. M. Act in a matrimonial petition? and (2) Whether such an order is an interlocutory order?
8. Under the impugned order, the husband-appellant has been directed to pay maintenance pendente lite to his wife and two minor children. This order was made on Notice of Motion taken out by the wife in the Hindu Marriage Petition filed by the husband. Mr. Rane urged that the impugned order is a judgment as it answers the description of word ‘judgment’ described in section 17 of the Family Courts Act and, therefore, it is appealable. Counsel urged that whether it is an interlocutory stage or otherwise, the real test, according to him, is whether there is adjudication/determination of vital issues arising out of Notice of Motion i.e. application under section 24 of the parties. Mr. Rane then urged that under section 19 of the Family Courts Act, the word ‘decree’ has not been included and very advisely because legislature wanted to cover all judgments and orders except interlocutory orders. In the view of the matter, impugned order is judgment. In order to emphasise this submission, Mr. Rane drew our attention to the judgment of the Supreme Court in Shah Babulal Khimji
v. Jayaban . Mr. Rane strongly relied upon certain passages from the said judgment. Para 106 of the said judgment reads as under :
“Thus the only point which emerges from this decision is that whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent.”
Para 112:
“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 affect vital and valuable rights of the parties and which work serious injustice to the party concerned.”
Para 119:
“………….
(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 question in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.”
As far as the decision in Shah Babuial Khimji (supra) is concerned, at the outset, it must be stated that the controversy arose before the Supreme Court was as regards the word ‘judgment’ used in clause 15 of the Letters Patent. In this very judgment in para 113 the Supreme Court ruled:
“the 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 Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the term ‘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.”
After going through this decision we are of the opinion that the meaning assigned to the word ‘judgment’ in this decision is much wider having regard to the ambit of Clause 15 of the Letters Patent. However, word ‘judgment’ has not been defined therein. Family Courts Act gives description of word judgment in S. 17. Having regard to the scheme of the Family Courts Act and in particular section 19(1) thereof, it would not be appropriate to assign such wide meaning to the word ‘judgment’ and include interlocutory orders. The above decision of the Supreme Court will not assist the appellant.
Next question is what is the scope and ambit of word ‘judgment’ used in section 19(1) of the Family Courts Act. To decide this issue we will have to construe provisions of sections 24 and 28 of the H. M. Act and section 19 of the Family Courts Act harmoniously. section 24 of the H. M. Act makes provision for maintenance pendente lite and expenses of proceedings. Application under this section proceeds on the assumption that the relationship between the parties to the Hindu Marriage Petition, as husband and wife legally subsists. If husband or wife is unable to maintain himself or herself, as the case may be, in terms of section 24 of the H. , M. Act, the Court may make an order of maintenance as also the order of costs which may appear to it reasonable. On plain reading of section 24 of the H. M. Act, it appears to us that it is a statutory obligation upon a husband or wife, as the case may be, to provide such maintenance and costs to defend the proceedings, and Court is under obligation to make appropriate order in favour of complaining spouse. Such order does not decide any issue of controversy in the main petition filed and pending under the H. M. Act. It is this character of order passed under section 24 of the H. M. Act being decisive to interpret the word ‘judgment’ or ‘order’ but not an interlocutory order used in section 19 of the Family Courts Act. The object of section 24 of the H. M. Act is to protect the weaker spouse and particularly if it is a wife to protect her from vagrancy. Moreover, life of such order is for a limited period namely during the pendency of substantive petition
under the H. M. Act. To emphasise the object of section 24 of the H. M. Act, Smt. Nanavati drew our attention to the decision of this Court in Dilipbhai Chaganlal Patel v. State of Maharashtra , wherein this Court observed thus (at page 130 of AIR):
“The object behind section 24 appears to be two-fold, firstly to prevent vagrancy resulting from the strained relationship between the husband and the wife and secondly to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the Case for want of money. This is why Courts have always insisted that whenever an application is made under section 24 it must be disposed of before any further steps are taken in the main case.”
We are in agreement with these observations. Order under section 24 of the H. M. Act, does not decide any issue, either in the substantive petition or in the application under section 24 of the H. M. Act except the quantum of maintenance and costs.
Substantive petition is still alive. In these circumstances, it is difficult to hold that such order answers the description of judgment under section 17 of the Family Courts Act. It must, therefore, follow that it is an order. The next question that needs to be considered is whether it is an order “not being an interlocutory order” in terms of section 19(1) of the Family Courts Act.
Thus, having regard to the object of section 24 of the H. M. Act, the wife of such order and the fact that such order does not decide any issue arising between the parties in the H. M. Petition one way or the other, and that the lis continues, an order under section 24 of the H. M. Act is not a ‘judgment’ in terms of section 17 of the Family Courts Act but it is an order in the nature of interlocutory order falling outside the scope of section 19(1) of the Family Courts Act.
This conclusion of ours may also be viewed in the light of section 28(2) of the H. M. Act. Under this sub- section appeal is expressly barred from every order under section 24 of the H. M. Act. Can it, therefore, be said that
legislature while enacting section 19(1) of the Family Courts Act wanted to give right of appeal against an order passed under section 24 of the H. M. Act? If we look at the preamble of the Family Courts Act, answer must be in the negative. Mr. Rane drew our attention to a decision of this Court in Dinesh Gijubhai Mehta v. Smt. Usha Dinesh Mehta , rendered by a Division Bench of this Court in L.P.A. and urged that order under section 24 of the H. M. Act was held to be ajudgment. Facts of this reported judgment were that the trial Court granted maintenance pendente lite and costs under section 24 of the H. M. Act to the wife. She being partly aggrieved filed First Appeal praying for enhancement. This appeal was allowed and on both counts amount was enhanced. Husband (appellant) filed L.P.A. before Division Bench and this Court held that the L.P.A. is maintainable. Mr. Rane drawing support from para 9 of thisjudgment urged that section 24 of the H. M. Act is an independent provision de hors any other provisions under the H. M. Act and in effect, order under section 24 of the H. M. Act concludes the controvery finally. If this be so, such decision is a judgment. Ratio of this judgment is found in para 9. These observations are made in the context of Clause 15 of the Letters Patent. The Division Bench then observed (at page 176 of AIR):
“The impugned order is neither a decree nor an order under section 25 or of the Act. This order, therefore, does not appear to be appealable.”
This decision, therefore, does not assist Mr. Rane.
9. Mr. Rane then alternatively urged that the order under section 24 of the H. M. Act is not an interlocutory order but a final order and, therefore, appeal under section 19(1) of the Family Courts Act is maintainable. Counsel urged that section 24 of the H. M. Act is an independent provision not being controlled by either section 23-A, 24 or 26 of the H. M. Act. He further urged that order under section 24 of the H. M. Act is a final order conclusively deciding rights and liabilities between the parties. Such order cannot be
challenged in a substantive H. M. Petition at any time. Counsel, therefore, urged that every order under section 24 of the H. M. Act is an order to be more precise, final order and not an interlocutory order and resultantly, appeal under section 19(1) of the Family Courts Act is maintainable.
It cannot be disputed that section 24 of the H. M. Act is an independent provision. It is also true that order under this section is final and remains in force during the pendency of substantive H. M. Petition. But by virtue of such restricted finality it is called an interlocutory order.
Mr. Rane Vehemently urged that notwithstanding such a limited span of life of such order since it vitially affects the rights of the party who has suffered it and creates liabilities upon such party, it must fall outside the ambit of interlocutory order. In support of this contention Mr. Rane relied upon the decision of the Supreme Court in Shah Babulal Khimji (supra). It was a case from this Court wherein Division Bench of this Court held that Letters Patent Appeal was not maintainable from the order of the single Judge rejecting the prayer of the appellant (plaintiff) for interim receiver and injunction. Supreme Court ruled that such an order is a judgment within the meaning of Clause 15 of the Letters Patent. While laying down this proposition, Supreme Court succinctly laid down what is the meaning of ‘final judgment’, a ‘preliminary judgment’ and ‘intermediary or interlocutory judgment’. In para 107, Supreme Court held:
“In finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affect the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.”
In para 113, the Supreme Court held:
“(3) ….. 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 proceedings. 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.”
In our opinion, this decision essentially on the point as to what is the meaning of judgment under Clause 15 of the Letters Patent. As indicated earlier, Supreme Court in this very judgment held that the word ‘judgment’ used in Clause 15 of the Letters Patent is wider in ambit than definition of judgment in section 2(9) of the Code of Civil Procedure. In the context of section 17 of the Family Courts Act any adjudication under section 24 of the. H. M. Act will be an order for the purposes of section 19(1) of the Family Courts Act. While deciding whether an order under section 24 of the H. M. Act is an interlocutory order or not, and attracting bar of appeal under section 19(1) of the Family Courts Act, Court will have to consider various other relevant provisions connected therewith bearing in mind the object of the statute.
10. Smt. Nanavati ufged that the decision of the Supreme Court in Shah Babulal Khimji is clearly distinguishable on facts and ratio laid down therein has no application. Smt. Nanavati urged that consistent with the scheme of sections 24 and 28(2) of the H. M. Act and statement of object of Family Courts Act, it must be held that every order under section 24 of the Family Courts Act is an interlocutory order. She also relied upon wording of section 28(2) of the H. M. Act to contend that no appeal lay against interlocutory order passed under sections 24, 25 and 26 of the H. M. Act. Smt. Nanavati contended that the tests determining whether or not an order is interlocutory one laid down in various decisions of the Supreme Court and the Federal Court. The decisions relied upon by Smt. Nanavati are as under:
What constitutes an interlocutory order, the test has been laid down in S. Kuppuswami Rao v. The King . The learned Chief Justice Sir Kania
citing with approval the decision of the Judicial Committee of the Privy Council in the case of Ramchand Manjmal v. Govardhandas, observed as follows:
“Viscount Cave, in delivering the judgment
of the Board, observed as follows: The question as to what is a final order was considered by the Court of Appeal in the cases of Salavan v. Warner, Dozson v. Altriachom Urvan District Council, and Issacs v. Salbstein. The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties….. The Judicial
Committee further held that when the effect Of the order was to leave the rights to be determined by the Court in the ordinary way, the order was not a final order.”
The Federal Court after considering other English decisions on this issue held thus:
“In Abdul Rehman v. D. K. Cassim and Sons, Sir George Lowndes, in delivering the judgment of the Judicial Committee stated that the test of finality was whether the order finally disposed of the rights of the parties…..
The finality must be a finality in relation to the suit. If, after the order, the suit is still alive suit in which the rights of the parties have still to be determined, no appeal lies against it under S. 109(a) of the Code.”
While determining the appeal Federal Court concluded thus:
“….. to constitute a final order, it is not
sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way.”
In Mohanlal Maganlal Thakkar v. State of Gujarat, , the Supreme Court held as under (at page 735 of AIR):
“4. The question as to whether a Judgment or an order is final or not has been the subject-matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that ajudgment or order may be final for one purpose and interlocutory for another or final as to part
and interlocutory as to part. The meaning of the two words “final” and “interlocutory” has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves the right to apply, in some of the English decisions where this question arose, one or the other of the following four tests was applied.
1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute?
2. Was it made upon an application upon which the main dispute would have been decided?
3. Does the order as made determines the dispute?
4. If the order in question is reversed would the main action have to go on?”
While considering the nature of an interlocutory orders and the tests used to decide whether an order was interlocutory or not, the Supreme Court in Madhu Limaye v. State of Maharashtra,
“12. Ordinarily and generally, the expression ‘interlocutory order’ has been understood and taken to mean as a converse of the term ‘final order’. In volume 22 of the third edition of Halsbury’s Laws of England, at page 742, however, it has been stated in para 1606:–
….. ajudgment or order may be final for
one purpose and interlocutory for another, or final as to part and interlocutory as to part –The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required. In para 1607 it is stated :
‘In general, a judgment or order which determines the principal matter in question is termed “final”.’ In para 1608 at pages 744 and 745, we find the words :
‘An order which does not deal with final rights of the parties, but either (I)is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment and merely directs how the declarations of right already given in the final judgment are to be worked out is termed “interlocutory”. An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.’ ”
In a later decision, the Supreme Court after taking resume of various decisions on this topic in V. C. Shukla v. State
“Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself or has not, to recover the remedy he guess for….. Four
different tests for ascertaining the finality of judgment or order have been suggested :
(1) was the order made upon an application such that a decision in favour of either party would determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided? (3) Does the order as made determines the dispute? (4) If the order in question is reversed would the dispute have to go on?”
In paragraph 23 at page 978 it was held :
“23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the. parties is only an interlocutory order. In other words, in ordinary sense of the term, no particular matter in a proceeding, suit or trial, but which does not, however, conclude the trial at all.”
After reviewing various authorities, Fazal Ali, J. then held, at page 982, paragraph 304 :
“Thus, the Federal Court, in its decisions, seems to have accepted two principles, namely:–
(1) that a final order has to be interpreted in
contradistinction to an interlocutory order; and
(2) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties.”
The Court later, in paragraph 33, amplified these observations, saying:
“(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order.”
Discussion in V. C. Shukla’s case (supra) came to be approved in a later decision of the Supreme Court in Usmanbhai v. State of Gujarat,
“The expression ‘interlocutory order’ has been used…… in contradistinction to what is
known as final order and denotes an order of
purely interim or temporary nature. The
essential test to distinguish one from the other
has been discussed and formulated in several
decisions of the Judicial Committee of the
Privy Council, the Federal Court and this
Court, One of the tests generally accepted by
the English Courts and the Federal Court is to
see if the order is decided in one way, it may
terminate the proceedings, but if decided in
another way, then the proceedings would
continue. In V. C. Shukla v. State through
C.B.I. Fazal Ali, J. in
delivering the majority judgment reviewed the
entire case law on the subject and deduced
therefrom the following two principles,
namely (1) that a final order has to be inter
preted in contradistinction to an interlocu
tory order; and (ii) that the test for deter
mining the finality of an order is whether the
judgment or order finally disposed of the
rights of the parties.”
Upon review of various decisions of the Supreme Court we may sum up that the
essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought, but not a final decision or judgment in the matter in issue. It is true that most of the Supreme Court judgments are under the Criminal Procedure Code but the tests and true meaning of the interlocutory order could not be different. Smt. Nanavati also drew our attention to the definition of the word ‘interlocuotory order’ from Wharton’s Law Lexicon (14th Edition, p. 529). it reads as under :
“An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.”
As indicated earlier, an order under section 24 of the H.M. Act does not decide in any manner rights and liabilities of the parties, raised in the H.M. petition. Lis in M.J. Petition continues. The very object of relief under section 24 of the H.M. Act is to enable indigent weaker spouse to resist such action and prevent from vagrancy and afford maintenance. Such order cannot be even called an intermediate order.
The phraseology used in section 28 of the H.M. Act unmistakably emphasises that no appeal from an order under section 26 of the Act is competent. Appeal provision is made more stringent in section 19 of the Family Courts Act by incorporating non obstante clause therein. Even revision against an interlocutory order is barred under section 19(4) of the Family Courts Act. The legislature in its wisdom thoughtfully enacted section 19 of the Family Courts Act with a view to dispose of matrimonial cases as expeditiously as possible. To give any other interpretation to Sec. 19 of the Family Courts Act would defeat the social and laudible object thereof.
11. Mr. Rane drew our attention to a judgment of the Supreme Court in Amarnath v. State of Haryana, and in particular Head Note ‘B’ to contend that the orders which are matters of moment and which affect or
adjudicate the rights of the parties cannot be interlocutory orders. The Supreme Court in this case was considering scope of sections
397 and 482 of the Criminal Procedure Code, Head Note B reads as under :
“The term “interlocutory order” in section 397(2) 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 the rights of the parties cannot be said to be an interlocutory order so as to 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 S. 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under section 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a paticular 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.”
We have gone through the judgment and in our opinion, this judgment is clearly distinguishable on facts. We are conscious of the facts that proceeding under Chapter IX of the Criminal Procedure Code are also entertained and disposed of by the Family Courts where such courts are established. On the same analogy if order is interlocutory, the appeal is not tenable.
12. At this stage, we may refer to another aspect of the impugned order. The trial Court has awarded Rs. 5,000 / – to each of two minor daughters as maintenance. This order is referable to section 26 of the H.M. Act. . Under section 26 of the H.M. Act, the Court is empowered to make interim order of maintenance to a child/children during the pendency of proceedings under H.M. Act and make such provision in the decree as it may
deem just and proper as regards custody, maintenance, and education of minor children. Viewed in the light of section 26 of the H.M. Act, the order as regards maintenance of two daughters, the same does not stand on any different footing. It is purely an interlocutory order subject to making such final order in terms of section 26 of the H.M. Act at the time of disposal of the petition filed under section 10 of the H.M. Act. The husband (father) has also claimed custody of the two minor daughters (see prayer (b) of para 25 of the petition). Issue as regards custody of the minor children is sub judice and pending disposal before the Family Court. In this view of the matter, we are of the opinion that the impugned order of maintenance made by the learned trial Judge in respect of two minor daughters is an interlocutory order against which no appeal lies under Sec. 19(1) of the Family Courts Act.
12A. We may now test the submission of Mr. Rane in the light of the statement of objects and reasons of the Family Courts Act. Relevant portion therein reads as under :
“Several associations of women, 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 the 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) has also stressed that in dealing with disputes concerning the family the Family 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 Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Court in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt in the
pubic interest, to establish Family Courts for the speedy settlement of family disputes.”
It needs no further comments. Bearing in mind the above objects, the Family Courts Act came to be passed and it is now being enforced in stages. Jurisdiction of the Family Court in the present social and economic background and in particular to make the living of the wife and children in true sense living of human beings’, when they are unable to maintain themselves, needs to be extended by establishing Family Courts throughout the country as expeditiously as possible. Parties to the H.M. Petition are required to wait for years together. This undue delay could be effectively arrested if Family Courts are established. The object of the Family Courts Act is to provide speedy disposal of matrimonial disputes. With this object in mind, right of appeal against an interlocutory order is taken away. Mr. Rane does not dispute the object being laudible but in the second breath urged that impugned order is not an interlocutory order. We are unable to agree with the later part of submission. This provision in our opinion is also on par with Sec. 28(2) of the H.M. Act. Unamended provision of S. 28 of the H.M. Act barred any appeal against award of costs only but every judgment and/or order passed under H.M. Act was appealable. This resulted into filing of an appeal against every order except order of costs. Result thereof was that proceeding under the H.M. Act could not see the end within a reasonable time. The Parliament, therefore, in the year 1976 amended Sec. 28 by substituting new provision. Amended section 28(2) totally bars an appeal against an order passed under Sec. 24 of the H.M. Act, This sub- section bars an appeal against an interim order passed under Ss. 25 and 26 of the H.M. Act. Exclusion of section 24 from sub- section (2) of S. 28 of the H.M. Act is very significant. If Mr. Rane’s argument is to be accepted it must follow that an order passed under Sec. 24 of the Act is a final adjudication of rights and liabilities and not an interlocutory order and appeal would lie against such order under Sec. 19(1) of the Family Courts Act. What has been denied under section 28(2) of the H.M. Act will stand
revived under section 19(1) of the Family Courts Act. This submission, in our opinion, would, therefore, clearly defeat the object of the Family Courts Act. In this view of the matter, we are of the opinion that the view which we have taken, in respect of an interlocutory order under sections 24, 25 and 26 of the H.M. Act is the only correct interpretation of section 19(1) of the Family Courts Act and consequently, no appeal would lie to the High Court under Sec. 19(1) of the Act, against such interlocutory orders. Our above conclusion would be in consonance with the objects of the Family Courts Act and equally consistent with S. 28(2) of the H.M. Act.
13. Mr. Rane made a grievance that even revision under section 19 of the Family Courts Act is barred against an interlocutory order passed under Ss. 24, 25 and 26 of the H.M. Act. Mr. Rane then urged that the Act must contain a provision giving one right of appeal or revision to a litigant against such interlocutory orders to vindicate his grievance. He, therefore, urged that it would be reasonable to construe the statute harmoniously keeping in mind the object of the Act and resultantly it would be appropriate to entertain appeal against orders though interlocutory made under Ss. 24, 25 and 26 of the H.M. Act. We are unable to accept this contention. In this behalf, we may reproduce clause (i) of para 2 of the Statements of Objects and Reasons of the Family Courts Act:
(i) provide for only one right of appeal which shall lie to the High Court.
It is, therefore, apparent that the Parliament wanted to give only one right of appeal to the High Court against final judgment/order passed under H.M. Act and Chapter IX of the Criminal Procedure Code. If Mr. Rane’s contention is accepted, then it will amount to providing not only one right of appeal but right of appeal against the interlocutory order passed under sections 24, 25 and 26 of the H.M. Act as also under Chapter IX of the Criminal Procedure Code. Anomaly is writ large. The litigants who are covered by the Family Courts Act would get better ad-
vantage of appeal remedy than those who are still governed by the procedure prescribed under H.M. Act.
The object of Cl. (i) in our opinion is to provide only one right of appeal against the judgment and final order passed by the Family Courts and not against interlocutory orders passed by the said Courts.
Before we part with the judgment we must keep on record our deep appreciation of valuable assistance given by Mr. Rane and Mrs. Nanavati in resolving complicated issue of public importance.
13A. To sum up, we hold that the present appeal filed under section 19(1) of the Family Courts Act against the interlocutory order is not maintainable.
Mr. Rane tenders an application for additional evidence in this appeal. Copy of the said Civil Application along with annexures was already served upon the respondents. Respondent-wife has also filed her reply to this Civil Application. Mr. Rane also tenders rejoinder. All these documents are taken on record. Since we have held that the appeal under section 19(1) is not maintainable, question of considering merits of this Application does not survive. Application is taken on record as filed.
Mr. Rane orally applies for leave to appeal to the Supreme Court. This, in our opinion; is not a fit case, where leave should be granted. Moreover, we have followed the law laid down by the Supreme Court. Leave refused.
As far as costs of this appeal are concerned, having regard to the question of vital importance involved therein, we direct the parties to bear their own costs.
Appellant, who is present in Court, through his Advocate assures the Court that in the event if he moves the Supreme Court, he will give one week’s notice to the Advocate for the respondent.
Order accordingly.
