Shri Kartik Uniyal vs Smt. Sugandha Sharma

V.K. Bist, J.

On the previous occasion, case was fixed for mediation, but the parties did not appear before the Court. Today, counsel for the appellant informed the

Court that the appellant is not able to appear before the Court as he is living abroad and is presently getting treatment of pancreatic ailment, however,

on behalf of the appellant, appellant’s father is present in person. Respondent-wife is also present. This Court had an interaction with

appellant’s father and the respondent but they are not amenable to participate in mediation session. On denial by the parties for mediation, this

matter is being taken up for hearing today itself.

Supplementary affidavit is taken on record.

Misc. application, made therefore, stands disposed of.

This appeal is directed against the order dated 12.06.2018 passed by Additional Family Judge, Dehradun in O.S. No.318 of 2016 Smt. Sugandha vs.

Shri Kartik, whereby the court below has effected the order dated 18.04.2017 vide which the opportunity of defence of the opposite party/appellant

has been struck off.

Factual matrix of the case is that respondent-wife filed a suit being O.S. No.318 of 2016 in the court of Additional Judge, Family Court, Dehradun for

a decree of divorce. During the pendency of the suit, respondent â€"wife moved an application u/s 24 of Hindu Marriage Act for grant of interim

maintenance. The Principal Judge, Family Court, Dehradun, vide order dated 08.11.2016, partly allowed the application and granted interim

maintenance to the tune of Rs. 10,000/- per month to respondent wife and Rs. 15,000/- per month to his minor son against the opposite party/appellant

w.e.f. the date of filing the application i.e. 19.04.2016. Appellant did not comply with the said order; hence, the respondent moved an application to

strike off the defence of the appellant. Opportunity was granted to the appellant to file objections, but he did not file any objections, whereafter

Principal Judge, Family Court, Dehradun, vide order dated 18.04.2017, struck off the defence of the appellant. Thereafter, the appellant moved an

application for setting aside the order of striking off the defence, which was allowed by the court below, vide its order dated 13.10.2017, on the

condition that the appellant shall pay a sum of Rs.1,00,000/- to the respondent wife within a month and till the time remaining arrears are not paid, the

appellant will continue to pay Rs50,000/- to the respondent. The court below also directed that in case of failure of any of condition; order dated

18.04.2017 shall automatically come into force. Order dated 13.10.2017 was also not complied with by the appellant and after

passing of seven months of the order, the appellant again moved an application for modification of order dated 08.11.2016 and 13.10.2017. After

hearing the parties, learned Additional Judge, Family Court, Dehradun, did not find favour to the appellant and effected the order dated 18.04.2017,

vide order dated 12.06.2018.

I have heard learned counsel for the parties and perused the material available on record.

An appeal is provided under Section 19 of the Family Courts Act, 1984 before the Division Bench against the final judgment or order. For ready

reference, Section 19 of Family Courts Act, 1984 is reproduced hereunder:

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. -(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].

(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.] 2[(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. 3[(6)] An appeal preferred under sub-

section (1) shall be heard by a Bench consisting of two or more Judges.

The appeal is maintainable against the final decision made on the application moved u/s 24 of the Hindu Marriage Act, as it is termed as a final order

as it adjudicates the rights of the parties to some extent and it has trappings of final judgment. However, in the present case, on perusal of the

impugned order, it would reveal that the impugned order has no trappings of the final judgment or order, the same is an interlocutory order. This being

the position, the appeal against the interim order is not maintainable.

Furthermore, on perusal of the impugned order as well as the earlier orders passed by the court below, what reveals is that order dated 08.11.2016

was modified on the application of the appellant, but thereafter also, the order was not complied with by the appellant. Initial order of granting the

maintenance to the respondent and child, which is dated 08.11.2016, has not been challenged in the present appeal. Impugned order is a subsequent

order which has been passed in the absence of making compliance of earlier orders by the appellant. We find no illegality or perversity in the

impugned order.

As observed above, we are of the considered view that order impugned has no trappings of the final judgment or decree. As such, the appeal is not

maintainable. Appeal is, accordingly, dismissed.

Interim order stands vacated.

No order as to costs.