B.C. Saksena, J - (1.) This is an appeal against order dated November 17, 1989 passed by the Family Court, Lucknow allowing an application of the respondent under Section 26 of the Hindu Marriage Act for the custody of his minor son and daughter, Master Rahul Koorichh and Km. Monika Koorichh.
(2.) The respondent has filed a petition under Section 13 of the above mentioned Act for divorce against the appellant. During pendency of that case, an application for custody of the minor children was moved by the respondent. The application was contested by the appellant and after hearing the same, the Family Court proceeded to allow it by the order under appeal. The very first question which arises for consideration is whether the appeal is maintainable.
(3.) Section 19(1) of the Family Court Act, 1984 provides: "Save as provided in sub-section (2), and notwithstanding anything contained in the Civil Procedure Code, 1908 or in the Criminal Procedure Code, 1973 or in any order law, an appeal shall lie every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law." Sub- section (2) of Section 19 says that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. The proceedings arising our of the petition under Section 13 of the Hindu Marriage Act are said to have been transferred to and pending before the Family Court by virtue of Section 8 of the Family Court Act. Therefore, an appeal will lie against order dated November 17, 1989 only if it can be shown that is not an interlocutory order.;