- (1.) THESE Miscellaneous Appeals under S. 19 (1) of the Family Courts Act, 1984 (for short 'the Act') are directed against the order dated April 7, 1992 of the learned Judge, Family Court, Ajmer. A common question of law has been raised in all these appeals, hence they are disposed of by a common order. The learned Family Court Judge has awarded interim maintenance at the rate of Rs. 250/ - p. m. to the Minors Anu @ Atul and Manu @ Abhijit in the proceedings under S. 125, Cr. P. C. Appeals No. 431 and 389 have been filed by the minors seeking to increase the maintenance allowance, while Appeals No. 351 and 366 are filed by the father Ratan Lal challenging the order of interim maintenance allowance.
(2.) THE facts leading to the appeals may be narrated in short. THE appellant Ratan Lal was married to Smt. Padamja on May 2, 1982. From their wed -lock two sons viz. , the appellant Manu @ Abhijit and Anu @ Atul were born on 27. 01. 1984 and 27. 06. 1985 respectively. Both minors are living with their mother Smt. Padmja Sharma. Proceedings under S. 125, Cr. P. C. were initiated on their behalf in the Family Court, Jaipur. It appears that Smt. Padamja has also moved a petition under S. 13 of the Hindu Marriage Act for the dissolution of the marriage. One more petition under S. 26 of the Hindu Marriage Act has been filed by her. All these petitions are now pending in the Family Court, Ajmer after they were transferred by this Court. On September 17, 1990, the learned Judge Family Court had granted interim maintenance allowance @ Rs. 500/ - p. m. to each of the minors from the date of the application. This order was challenged by Ratan Lal before this Court and this Court vide order dated February 27, 1991, sent the case back to the Family Court after setting aside the order of interim maintenance allowance. Thereafter, the learned Judge Family Court has awarded Rs. 250/ -p. m. as interim maintenance allowance to the appellants Anu @ Atul and Manu @ Abhijit from the date of application by the impugned order which is under challenge in the appeals. We are not concerned with other part of the order as these appeals are related with the order awarding interim maintenance allowance. During the course of arguments a question arose for our determination as to whether the present appeals are maintainable under S. 19 (1) of the Act. We, therefore, heard arguments on this preliminary question without going into the merits of the case. Before we deal with the question of the maintainability of the appeals, we deem it necessary to refer the relevant provisions of the Act which have vital bearing on the question involved. The Family Courts Act, 1984 was enacted by Parliament and it received the assent of the President on September 14, 1984. The Act was enforced in Rajasthan from November 19, 1985. The Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Chapter III deals with the jurisdiction. Sub -s. (2) of S. 7 provides that a Family Court shall also have and exercise the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973 relating to order for maintenance of wife, children and parents. S. 8 excludes the jurisdiction of a Magistrate under Chapter IX of the Code of Criminal Procedure in relation to such area where a Family Court is established. S. 17 defines 'judgment' as under : - "17. Judgment - Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. " S. 18 provides the procedure of execution of decrees and orders. Then Chapter V provides only S. 19 which deals with the appeals. The entire controversy relating to the maintainability of appeals centres around S. 19 and its interpretation. This Section is, therefore, reproduced in extenso : - "19. 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. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. (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) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. (5) An appeal preferred under sub -section (1) shall be heard by a Bench consisting of two or more Judges. " The question which falls for consideration is the interpretation of sub -s. (1) of S. 19 of the Act. The question may be formulated : - "whether an appeal lies to the High Court under S. 19 (1) of the Family Courts Act from an interim order of maintenance passed by the Judge Family Court on an application under S. 125, Cr. P. C. - The expression 'interlocutory -order' is not defined either in the Cr. P. C. or in the Act. Ordinarily and generally the expression ' interlocutory order' is understood and taken to mean as converse to the term 'final order'. In the book Corpus Juris Secundum, Volume 47, at Page 85 this term has been defined as 'something intervening between commencement and the end of a suit which decides some point or matter but which is not a final decision of the whole controversy". In Webster's Third International Dictionary, the expression 'interlocutory' has been defined: "not final or definite; made or done during the progress of an action, intermediate, provisional. " In Halsbury's Laws of England, Third Edition, Volume 22 pp. 743 - 744 describes an interlocutory and final order thus: "interlocutory judgment or order: An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed, 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals. " "final judgments are such as to once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. Four different tests for ascertaining the finality of a judgment or order have been suggested : - (1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute. (2) Was it made upon an application upon which the main dispute could have been decided. (3) Does the order, as made, determine the dispute. (4) If the order in question is reversed, would the action have to go on. "
(3.) WHAT constitutes an interlocutory order, a test has been laid down in S. Kuppuswami Rao vs. The King (1 ). It was stated: - "to constitute a final order, it is not sufficient merely to decide an important or even vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. " In Mohan Lal Magan Lal Thakkar vs. State of Rajasthan (2), the Supreme Court held as under: - "the question as to whether a judgment or an order is final or not has been the subject matter of a number of decisions, yet not single general test for finality has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. The meaning of the two words 'final' and 'interlocutory' has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves the right to apply. In some of the English decisions where this question arose, one or the other of the following four tests as applied: - 1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute? 2. Was it made upon an application upon which the main dispute would have been decided? 3. Does the order as made determines the dispute? 4. If the order in question is reversed, would the action have to go on. " In Madhu Limaye vs. State of Maharashtra (3), it has been observed: - "ordinarily and generally, the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England, at page 742, however, it has been stated in para 1606: - . . . . . . a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part -The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required. In para 1607 it is stated: "in general, a judgment or order which determines the principal matter in question is termed "final" - In para 1608 at pages 744 and 745, we find the words: "an order which does not deal with final rights of the parties, but either (1) is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment and merely directs how the declaration of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. " ;