JAMEELA Vs. NAZER KOTTARATH

JUDGEMENT

(1.) Challenge in the above appeal is against an order passed by the Family Court in an interlocutory application filed seeking interim custody of a minor child, in an original petition instituted under the Guardian and Wards Act. While disposing the interlocutory application, the court below directed the appellant herein, who is the respondent before the court below, to hand over interim custody of the minor to the other party on alternate Sundays from 10 a.m. to till 4.30 p.m. with a change in the timing after two such occasions.

(2.) Question is whether an appeal is maintainable against the said order, under Sec. 19 of the Family Courts Act, 1984. Sub-sec. (1) of Sec. 19 of the Family Courts Act, 1984 bars appeal from any interlocutory orders. It is held by this court in Manga Lakshmi V. Basanth Kumar (2016 (2) KLT 776) that, no appeal will lie under Sec. 19 (1) of the Family Courts Act from an interlocutory order and also elaborated the parameters for deciding as to whether an order is interlocutory or not. It is held that, an order which does not terminate the proceedings or finally decides the right of the parties, is only an interlocutory order. It is found that, in ordinary sense, interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial, but which does not conclude the trial. It was observed that, the main question which would be borne in mind is whether the order is deciding the cause itself or whether it only settles some intervening matters relating to the cause. If the order does not terminate the proceedings or finally decides the right of the parties or decides the cause itself, then it is only an interlocutory order, is the finding.

(3.) The above principle was reiterated in subsequent decision in Vivek Joy V. Chinchu Grace Lukose (2018 (4) KLJ 127). It is held that, the answer to the question as to whether the order is final or not, will not depend upon whether the controversy is finally decided or not by such an order. An order is not a final order unless it finally decides the right of the parties. To judge whether the order is final in that sense, it is not always necessary to correlate the decision in every case with the facts in controversy. The answer to the question as to whether the order is final or not, will not depend upon whether the controversy is finally decided or not by such an order. In the above cited ruling this court held that, an order allowing or dismissing an application for setting aside an ex-parte decree is not an interlocutory order within the ambit of Sec. 19 (1) of the Act and it is appealable under the said provision.