NATHMAL Vs. MANJU DEVI

JUDGEMENT

(1.) THIS appeal filed under Section 19 of the Family Court Act, 1984 (hereinafter referred to the Act) has been directed against the order of the learned Judge, Family Court, Udaipur dated 23.2.1993, whereby appellants application filed under Order 16 Rule 10 and 12 C.P.C. for issuing summons or bailable warrant for enforcement of attendance on witness Babu Lal Lohia resident of Jodhpur was dismissed and another application filed under Order 26 Rule 4 C.P.C. for issuing commission for examining the statement of minor Arjuh @ Komal was rejected.

(2.) SUCCINCTLY stated the relevant facts are that Smt. Manju Devi was married to late Shri Shyam Sunder Bhattad, the son and brother of appellants No. s 1 and 2 Nath Mal and Satya Narain respectively and the brother -in -law of appellant No. 3 Smt. Kamla. Out of wed lock of Shyam sunder and Smt. Manju a son namely Arjun @ Komal was born on 16.3.1989. Unfortunately Shyam Sunder died in an accident on 11.2.1990. It is alleged that after the death of Shyam Sunder Smt. Manju Stayed with the minor son at appellants' house in Jodhpur and thereafter she went away to her parents house at Udaipur allegedly to contract a second marriage. It appears that on 7.2.1992, Smt. Manju lodged a First Information Report at Police Station, Suraj Pol, Udaipur against the appellants No. s 2 and 3 alleging that they kidnapped her minor son Arjun from her custody from Udaipur and took over him to Jodhpur. A case was registered and after investigation, it is alleged, that a Final Report was given on 30.3.1992. Thereafter Smt. Manju filed an application on 8.6.1992 under Section 25 of the Guardianship and Wards Act, 1890 for the custody of her minor son before the learned Judge, Family Court, Udaipur. She also prayed for Arjun's ad -interim custody in her favour. This application was holly contested by the appellants. The learned trial Judge framed two issues on 2.9.1992. The first issue pertained to the controversy as to whether the respondent was entitled to get back the custody of her minor son and whether it would be in the welfare and interest of the minor? The second issue related to the objection raised by the appellants about the jurisdiction of the Family Court to hear that application. Since the learned Judge thought that it was necessary to expeditiously dispose the said application, he did not pass any order on respondent's application for the interim custody of the minor. The learned Judge fixed 22.9.1992 for recording the evidence of the parties. On 22.9.1992, the appellants filed an application for the production of the case diary from the police station pertaining the F.I.R. lodged by the respondent. That application was rejected. Immediately thereafter the appellants filed another application for granting time to file a revision against the said order, which was also rejected. Thereupon the appellants filed yet another application seeking time for filing transfer application in the High Court, which was also rejected. On that day the respondent examined her four witnesses. However, the appellants did not cross examine them. It appears that the appellants filed a transfer petition in this Court, which was rejected. The appellants also filed civil Misc. Appeal No. 377/92 in this Court, wherein it was ordered that if the appellants file an application before the Family Court then they be allowed to cross -examine the witnesses of the respondent. It was further ordered that the appellants shall produce the minor Komal in the Family Court. On 8.1.1993, the application filed by the appellants for cross -examining the respondent's witnesses was allowed on a cost of Rs. 251/ -. However, the appellants did not produce the minor in the court and informed the court vide their application dated 12.1.1993 that minor Arjun was not prepared to come to Udaipur and that respondent Smt. Manju could meet him at Jodhpur. The appellants crossed -examined respondent's witnesses on 12.1.1993 and 1.2.1993. They also examined their three witnesses on 1.2.1993 and 2.2.1993. At the request of the appellants summons for their two witnesses namely Babu lal and Prakash Jain, who are residents of Jodhpur, were issued and given dasti. On the next date i.e. on 18.2.1993, the appellants informed that the summon of those witnesses were got served on them through the court and that those summons will be returned by the Jodhpur Court through post. They also informed that Babu Lal was feeling indisposed and as such his summon be again issued. This request was turned down by the Family Court and appellants were directed to produce their witnesses themselves on the next date. On 23.2.1993, appellants' witness Kashi Ram was examined. On that day appellants filed an application and submitted that their witness Babu Lal Lohia resident of Jodhpur was suffering from fever and he may either be summoned or a warrant be issued against him. The learned Judge, Family Court rejected that application on the ground that Jodhpur was situated at a distance of more than 300 kms. from Udaipur and that the witness was residing beyond the territorial jurisdiction of the court, therefore, it was not proper to issue warrant for his arrest and this is why appellants were directed to produce their witnesses residing at Jodhpur themselves. It was also observed that many opportunities were already granted to the appellants to adduce their evidence and that it was not in the interest of justice to give further opportunity to them and fixed the case for final arguments. On 23.2.1993, appellants also filed another application to the effect that it will be conducive to examine the minor, who is not in a mental condition to come to Udaipur and prayed that his statement may be recorded before any Judge in Jodhpur or he may be examined by appointing a commission. This application was rejected on the ground that the statements of the minor are not to be recorded, on the other hand the Family Court has to ascertain his sentiments, mental condition, capability of thinking and understanding the things, his nearness of kin, his inclination towards other persons and many other psychological factors and as such it will not be proper and justified to order for the examination of the said minor by any Presiding Officer of any other court or by a commissioner. The learned Judge further ordered the appellants to produce the minor son Komal in his court on the next date. Hence aggrieved by the impugned order the appellants have filed this appeal.

(3.) SHRI Dinesh Maheshwari has raised a preliminary objection that the impugned orders are interlocutory orders, this appeal is not maintainable. For this he has relied on case of Major Raja P. Singh v. Smt. Surendra Kumari 1990(2) R.L.R. 246, wherein it has been held that an order of a family court allowing or rejecting amendment in the pleadings does not amount to 'a case decided' and that such an order is an inter locutory order against which no appeal lies under Section 19 of the Act.