RANVIR KUMAR Vs. JUDGE FAMILY COURT

JUDGEMENT

(1.) Constant marital bickering dnd consequent stand off between the petitioner and the respondent appears to be the causative factors for institution of a petition by the petitioner under Section 13 of the Hindu Marriage Act. 1955, seeking dissolution of the marriage on the ground of 'wilful neglect' and 'desertion' by the wife-respondent herein. The learned Judge, Family Court passed an order on 29.9.1997 that the case would proceed exparte against the defendant. Thereafter, on the basis of exparte evidence, the matter escalated into a decree passed for dissolution of marriage vide judgment dated 16.10.1997, reinforced with the finding that "desertion and wilful neglect on the part of Smt. Rekha Gupta is proved". On coming to know of the exparte judgment, the respondent-wife moved an application with the prayer to set aside the order dated 29.9.1997 and the judgment and decree dated 16.10.1997. The reason ior non-appearance on material dates was that she was residing with her father at Pathankot and owing to her own ailments, she could not attend the court as a result of which the case proceeded exparte against her and ultimately, the matter culminated in exparte decree on the basis of exparte evidence adduced by the husband. It is also alleged that she was stymed in appearing on the dates fixed in the case through a lawyer in that the lawyers are not permitted to prosecute the cases in Family Courts. The learned Judge Family Court, deduced the cause for default and absence on the relevant dates to be 'sufficient' and resultantly, set aside the order dated 29.9.1997 and the ex-parte judgment and decree dated 16.10.1997 by means of the order dated 25.4.98. Despaired of the order, the pethioner-husband has filed the instant petition for quashing the order dated 25.4.1998.

(2.) Sri A.D. Prabhakar, learned counsel appearing for the respondent, to begin with, raised a preliminary objection as to the maintainability of the writ petition on the ground that the petitioner had an alternative remedy of appeal under Section. 19 of the Family Courts Act, 1984, Sri K.K. Arora, appearing for the petitioner, tried to meet and controvert the preliminary based on the submissions that the order impugned herein has the complexion of an 'interlocutory order' and therefore, no appeal lies against it. The learned counsel canvassed that as provided in sub-section (1), appeal lies against "every judgment or order, noi being an interlocutory order, of the Family Court". Dwelling on his submission, the learned counsel urged that an order allowing application under Order 9, Rule 13 CPC partakes of the nature of an 'interlocutory order' in that the suit stands revived. Sri Arora made a further submission that an appeal under Order 43, Rule 1 CPC lies against an order rejecting an application for setting aside an exparte decree arid not against an order allowing the application under order 9, Rule 13 CPC. I have scanned the submissions made at the bar, for its substance. Section 19 of the Family Courts Act, 1984, in so far as it is germane to the controversy involved in this petition, is excerpted below:

(3.) Expression 'interlocutory order' occurring in Section 397(2) of the Code of Criminal Procedure, 1973 came up for consideration before the Apex Court in the case of Madhu Limave v. State of Maharashtra in which the Apex. Court held as under: