Case Note & Summary
The Bombay High Court, before a Division Bench of R.M.S. Khandeparkar and Anoop V. Mohta, JJ., considered a preliminary objection to the maintainability of a Family Court appeal under Section 19 of the Family Courts Act, 1984. The appeal was filed by the wife against an order dated 4th October 2004 passed by the Family Court, which directed her not to prevent the husband and his family from having access to and using a flat (B-13, Jessica Building, Borivali West, Mumbai) during the pendency of divorce proceedings. The divorce petition had been originally filed by the wife on 24th July 2000 under the Hindu Marriage Act, 1955. The husband contested and also filed a counter claim seeking divorce on the ground of cruelty. While those proceedings were pending, the husband applied for restraint orders against the wife regarding the flat, claiming his mother had purchased it. The wife opposed, asserting she had paid for the flat. The Family Court allowed the husband's application and issued the impugned directions. The wife appealed, contending the order finally determined the right to use the flat pending the proceedings and was not an interlocutory order. The husband raised a preliminary objection that the order was interlocutory, merely preserving status quo, and therefore no appeal lay under Section 19, which allows appeals only from judgments or orders that are not interlocutory. The Court examined the scheme of the Family Courts Act, noting that Section 7(1) extends jurisdiction to property disputes between spouses, and Section 10 applies the Code of Civil Procedure except Chapter IX. Relying on the Supreme Court decisions in Madhu Limaye v. State of Maharashtra (AIR 1978 SC 47) and B.C. Shukla v. State (AIR 2000 SC 964), and the Bombay High Court decision in Sunil Hansraj Gupta v. Payal Gupta (1991 Mh.L.J. 737), as well as the Orissa High Court Full Bench decision in Swarna Prava Tripathy v. Dibyasingha Tripathy (AIR 1998 Orissa 173), the Court held that an order which does not finally decide the rights of parties but is passed during the pendency of proceedings to maintain status quo or facilitate progress is an interlocutory order. The impugned order was such an order; it did not determine ownership or possession conclusively but only made a temporary arrangement pending the divorce proceedings. The Court therefore upheld the preliminary objection and dismissed the appeal as not maintainable. The decision clarified the law on appealability of interlocutory orders under the Family Courts Act and reiterated the circumscribed remedy available under that legislation.
Headnote
A) Civil Procedure - Interlocutory Order - Appealability - Family Courts Act, 1984, Section 19 - An order passed during the pendency of main proceedings that does not finally decide rights of parties but merely preserves status quo or facilitates progress is an interlocutory order and not appealable. Held, the impugned order of the Family Court permitting respondent to use the suit flat was such an interlocutory order, and the appeal was not maintainable under Section 19(1) of the Family Courts Act, 1984 (Paras 4-11).
Issue of Consideration
Whether the appeal against the order of the Family Court directing the appellant not to prevent the respondent and his family from using the suit flat is maintainable under Section 19 of the Family Courts Act, 1984, given that the order is interlocutory in nature
Final Decision
The High Court held that the impugned order was an interlocutory order as it did not finally decide the rights of the parties and was passed to maintain status quo and facilitate the disposal of the main proceedings. Consequently, the appeal was not maintainable under Section 19(1) of the Family Courts Act, 1984. The preliminary objection was upheld and the appeal dismissed.
Law Points
- An interlocutory order under Section 19 of the Family Courts Act
- 1984
- is one that does not finally decide the rights of parties but is passed during the pendency of proceedings to maintain status quo or facilitate progress
- and no appeal lies against such order
- Family Court has jurisdiction over property disputes between parties to a marriage under Section 7(1) Explanations (c) and (d) of the Family Courts Act
- the expression 'interlocutory order' denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties
- an order which cannot have existence or does not subsist on conclusion of the main proceedings unless specifically protected is interlocutory
