Karnataka High Court
Dr. Rohit Dandekar vs Dr. Raj Kavitha on 21 August, 2003
Equivalent citations: AIR2003KANT511, I(2004)DMC216, AIR 2003 KARNATAKA 511, 2003 AIR - KANT. H. C. R. 2579, (2004) 13 ALLINDCAS 932 (KAR), (2003) ILR (KANT) (4) 4431, (2004) 1 DMC 216, (2003) 12 INDLD 250, (2004) 1 HINDULR 116, (2003) 6 KANT LJ 427, (2004) 1 MARRILJ 598, (2003) 4 KCCR 3198, (2004) 1 CURCC 282
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT S.R. Nayak, J.
1. Both the Appeals are preferred by Dr. Rohit Dandekar, who is the father of the ward, Paranukush by name, being, aggrieved by the common Judgment and Order dated 6-2-2001 made on I.As 5 and 10 in M. C. No. 116 of 1999 on the file of the Court of the Principal Judge, Family Court, Bangalore, for short 'Family Court'. The marriage between Dr. Raj Kavitha, the respondent herein and Dr. Rohit Dandekar was annulled by the Family Court on the ground of cruelty by Judgment and Decree dated 27-10-2000 and the said decree was allowed to become final.
2. It appears when the proceedings were pending on the file of the Family Court, I.A. No. 5 was filed by the Appellant herein under Section 26 of the Hindu Marriage Act, 1955 seeking custody of the ward. The Family Court, however, did not pass any order on the application either during pendency of the proceedings or at the time of passing the final decree. After the decree was passed on 27-10-2000, the Respondent mother filed I. A. 10 under Section 26 of the Hindu Marriage Act, seeking custody of the ward. Both the applications were clubbed and heard together by the learned Family Judge and by the impugned common order, dismissed I.A. No.5 filed by the father and allowed I.A. No. 10 filed by the mother.
3. While doing so, the learned Family Court Judge, however, permitted the Appellant to visit the ward in Bangalore for a period of 15 days during summer vacation.
4. These two appeals are preferred by the Appellant under Section 19 of the Family Courts Act, 1984. Sri Babu Heddur Shetty, learned Counsel for the Respondent, at the threshold, raised a preliminary objection regarding maintainability of the appeals by contending that the impugned order is an "interlocutory order" within the meaning of that term and, therefore, no appeal would lie to this Court under Section 19 of the Family Courts Act. On the other hand, Sri R.B. Sadashivappa, learned counsel for the Appellant, would point out that the impugned order came to be made by the Family Court on an application filed by the mother, after passing of the final decree in Matrimonial Case No. 116 of 1999 on 27-10-2000 and, therefore, such order could not be regarded as an Interlocutory Order for the purpose of applying prohibition contained in Sub-section (1) of Section 19 of the Act. Having regard to these rival contentions urged by the learned counsel for the parties, and since the preliminary objection raised before us goes to the root of the matter, it is appropriate for us.
first, to decide the question of maintain ability of the appeals.
5. Sub-section (1) of Section 19 of the Family Courts Act, 1984 reads as follows :--
"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."
6. Sub-section (2) of Section 28 of the Hindu Marriage Act, 1955 reads as follows :--
"(2) Orders made by the Court in any proceedings under this Act under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction."
7. In our considered opinion, the provisions of Sub-section (1) of Section 19 of the Family Courts Act, 1984 as well as the provisions of Sub-section (2) of Section 28 of the Hindu Marriage Act, 1955, are plain, precise, unambiguous and clear in content and meaning, and they do not admit more than one meaning. The word 'every' as an adjective means "each one or single of a number or collection; omitting none; whole of it; all of it". The only meaning flowing from the provisions of Sub-section (1) of Section 19 of the Family Courts Act read with Sub-section (2) of Section 28 of the Hindu Marriage Act, is that an appeal will lie against every judgment and order and only exception is that no appeal will lie against an "interlocutory order".
8. It is well recognised rule of interpretation that in construing statutes, grammatical and ordinary sense of the word is adhered to unless that would lead to some absurdity, or some repugnance or inconsistency in which case the grammatical and ordinary sense of words may be modified, so as to avoid that absurdity, and inconsistency, but no further. In the words of Viscount Simon. L.C. the golden rule of interpretation is that the words of a statute must prima facie be given their ordinary meaning and that natural and ordinary meaning of words should not be departed from unless it can be shown that the legal context in which the words are used requires a different meaning. If this rule is kept in mind, we should state, an appeal would lie under Sub-section (1) of Section 19 of the Family Courts Act against each and every judgment and order unless an impugned order can be regarded as an "interlocutory order" within the meaning of that term. Therefore, it becomes necessary for us to know what is the meaning of the term 'interlocutory order'. The term "interlocutory order" is not defined under the Family Courts Act. It is not the contention of Sri Bapu Heddurshetty that the impugned order is not an order. His only contention is that it is an 'interlocutory order'.
9. In Bouvier's Law Dictionary (Third Revision), the meaning of the words "interlocutory" and "interlocutor" is stated thus :
"INTERLOCUTORY. Something which is done between the commencement and end of a suit or action which decides some point, or matter, which, however, is not a final decision of the matter in issue : as, interlocutory judgments, or decrees, orders. The term seems to have originated with Lord Ellesmere; 1 Holdsw. Hist, E. L. 213."
"INTERLOCUTOR. Properly means a judgment or judicial order pronounced in the course of a suit, which does not finally determine the cause. But in Scotch practice, the term is extended to the judgments of the Court of Session or the Lord Ordinary, which exhaust the point at issue, and which if not appealed against will have the effect of finally deciding the case, Bell; Moz. &W."
10. As per Black's Law Dictionary, Seventh Edition, the word "interlocutory" as an adjective, means "Interim or temporary, not constituting a final resolution of the whole controversy".
11. In Venkataramaiya's Law Lexicon with Legal Maxims (Revised 2nd Edition) dealing with the word, 'interlocutory', it is stated thus;
"Interlocutory. Something intervening or happening between the commencement of law proceedings and their termination i.e., during the progress of an action of law or a suit in equity; thus, an interlocutory decree in a suit in equity signifies a decree that is not final and does not conclude the suit, for it seldom happens that the first decree can be final; for if any matter of fact is strongly controverted, the Court usually directs an inquiry in chambers to be made, after which the matter is to come on again for further consideration, and the final decree is therefore, suspended until the result of such inquiry is made known. An interlocutory Judgment in an action at law signifies a judgment that is not final, but which is given upon some plea, proceeding, or default, occurring in the course of the action, and which does not terminate the suit; such are Judgments on demurrer, or verdict for the defendant on certain dilatory pleas called pleas in abatement, or those which are given when although, the right of the plaintiff in the action is established, yet the amount of damages he has sustained is not ascertained, which cannot be done without the intervention of the jury. This happens when the defendant in an action suffers judgment by default, or confession, or upon a demurrer, in any of which cases, if the demand sued for the damages and not a specific sum, then a Jury must be called to assess them; therefore, the judgment given by the Court previous to such assessment by the jury is interlocutory and not final, because the Court knows not what damages the plaintiff has sustained. An interlocutory order is an order made during the progress of a suit upon some incidental matter which arises out of the proceedings, as an order for an injunction, for instance-Brown's Law Dictionary pp 192-93."
12. As per the Law Lexicon by P. Ramanatha Aiyer (Second Edition (Reprint), an interlocutory order is one which is made pending the cause and before a final hearing on the merits. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, and generally collateral to the issues formed by the pleadings and not connected with the final judgment. In Smith v. Cowell (1880) 6 QBD 75, it was held that interlocutory order is not necessarily confined to an order made between writ and final judgment but it means an order other than final order or judgment.
13. In the case of Amar Nath v. State of Haryana , Fazl Ali, J. speaking for the Supreme Court, has observed:
"It seems to us that the term 'interlocutory order' in Section 397(2) of the 1977 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the Important rights or the liabilities of the parties. Any order which substantially affects the lights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the Code of Criminal Procedure, 1973.
But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional Jurisdiction of the High Court."
14. Further, in the case of Manjoor Ahmad v. State of Bihar, 1978 BLJ 670 at pp 671, 672 : (1978 Cri LJ NOC 243), it was held that an order under Section 116(3) Cr. P. C. 1973, directing a party to execute ad interim bond affects the party concerned and, therefore, it cannot be said to be an interlocutory order so as to be outside the purview of revisional jurisdiction.
15. In Volume 22 of the 3rd Ed. of Halsbury's Laws of England in paras 1606, 1607 and 1608, it has been stated thus :
"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 of which it is required."
"1607. In general a judgment or order which determines the principal matter in question is termed final."
"1608. 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."
16. In S. Kuppaswami Rao v. King, AIR 1949 FC 1; 1947 FCR 180, Chief Justice Kania speaking for the Federal Court, having referred to some English decisions at pp. 185 and 186 including one of Lord Esher, M.R. in Salaman v. Warner (1891) 1 Q.B. 734 was pleased to quote the following observations of Lord Esher. M.R. with approval:
"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute. I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."
17. In Madhu Limaye v. State of Maharashtra, , the Supreme Court has opined that simply because an order cannot be regarded as final order, the Court cannot come to a conclusion that such order should be an "interlocutory order." In other words, an order though not a final order, nevertheless, need not necessarily be an "interlocutory order", but, will be an order for the purpose of availing further legal remedies in terms of the statute concerned. The thrust of the argument of Sri Bapu Heddurshetty that the impugned order should be regarded as an "interlocutory order", is based on the reasonings that the impugned order made by the Family Court under Section 26 of the Hindu Marriage Act, could not be regarded as a final order, in the sense that that order is liable to be altered, modified and even cancelled at the instance of a party, from time to time.
18. Generally speaking, an interlocutory order is made by the Judicial Forum or the Court from time to time during the pendency of the main proceedings In aid of the final order or decree to be made after adjudication of the dispute and to maintain status quo. If this object of Interim orders is kept in mind, it cannot be said that an order entrusting custody of a ward either in favour of mother or father, whether during pendency of the main proceeding or after termination of the same, is an order made in aid of the final order. The main proceedings initiated by the mother before the Family Court were for dissolution of the marriage oh the ground of cruelty and desertion. There is clear discernible object beyond the empowerment of the Family Court to pass appropriate order with regard to the custody of minor child during or after termination of the proceedings, and the intendment clearly reflects the paramount concern of the Court towards the welfare of the child. In other words, the intendment is that the dispute between the parents should not shatter or come in the healthy way of upbringing of the child.
19. In case of V.C. Shukla v. State through C.B.I., , the Supreme Court held that the 'interlocutory order' has to be construed in contradiction to or in contrast with final order; it means not a final order, but ,an intermediate order. It is made between, the commencement of an action and the entry of the judgment. Thus, it is quite clear an "interlocutory order", in law, means not that order which decides the cause but which only settles some intervening matters relating to the cause.
20. Further, it needs to be noticed that simply because an order made by the Family Court under Section 26 of the Hindu Marriage Act, in main proceedings, could be altered or modified subsequently at the behest of parties, only on that count, an order entrusting the custody of a child to a parent, cannot be regarded as an interlocutory measure. It is not as if the order made by the Family Court impugned in these appeals would come to an end without intervention of the parties on its own, such as expiry of a time limit or on the happening of an event prescribed by the Court. If the parties do not seek modification or alteration of such order, it is trite, the order will continue to be in operation. Looking from any angle, the order made by the Family Court under Section 26 particularly after the disposal of the main proceedings, entrusting the custody of the child to the mother, could not be considered to be an "interlocutory order" within the meaning of that term for the purpose of denying appeal remedy to the appellant under Sub-section (1) of Section 19 of the Family Courts Act, Therefore, we hold that the appeals are maintainable.
21. With the consent of the learned counsel for the parties, we heard the appeals on merits. A lengthy affidavit and counter affidavits were filed before the Family Court with regard to their respective case. There is no need for us to dilute much on that aspect, except to state that the parents of the minor child are Doctors, both earning handsome salary and they are not staying alone, but with the family members. It is quite often said and reiterated by the Courts that while deciding the question of the custody of minor child, the paramount consideration is the welfare of the child. Therefore, the question to be considered is whether the learned Family Judge, in entrusting the custody of the child to the mother, has achieved this objective. It is not that the income of the parent is the sole consideration to decide on the custody of the child. The minor child should be allowed to grow as a healthy human being. It is pointed out by the learned Family Court Judge that the child has been staying with the mother from October, 1998 and the child has been admitted to one of the best schools in Bangalore City run by a well known society called 'Bharathiya Vidya Bhavan'. It is also stated by the learned Family Court Judge that the mother of the child's mother is a socialist and a politician who earlier adorned the office of Deputy Mayor of the City of Corporation of Bangalore. The factors stated by the learned Family Judge, by no stretch of imagination, could be condemned as irrelevant considerations for decision-making. On the other hand, these factors are quite germane in the decision-making. It is quite often said and reiterated by the Courts that if more than one view is possible on the basis of evidence and learned trial Judge accepts one of such possible views, his decision should not be altered by the Appellate Court only on the ground that another view is also possible on the basis of the same evidence.
22. Sri R.B. Sadashlvappa, learned counsel for the Appellant, would also contend that the failure of the Family Court to conduct any enquiry, having regard to the pleadings of the parties, vitiates the impugned order. In that regard, learned counsel would cite two decisions of this Court in S.R. Sanna Shetty v. Shanthamma, , and Prakash v. Smt. Akkamahadevi, ILR 2001 Kant 448 : 2001 (4) Kant LJ 239. In the case of Section R. Sanna Shetty v. Shanthamma (supra), an application was made under the provisions of Guardians and Wards Act, 1890 (Central Act No. 8 of 1890) and Hindu Minority and Guardianship Act, 1956 and, therefore, the observation made in that judgment is not applicable to the facts of the present case. The custody of the child has been entrusted to the mother as a measure till further orders after termination of the main proceeding instituted by the mother for dissolution of the marriage. As pointed out supra, the order made under Section 26 of the Hindu Marriage Act, could be altered and modified if there is any change of circumstances, by the Family Court at the behest of a party. Therefore, such an order could not be compared to a decree that may be passed by the Court under the provisions of the Minority and Guardianship Act.
23. Section 26 of the Hindu Marriage Act or any other provisions of that Act or the Rules framed thereunder, do not prescribe any specific procedure to be followed by the Family Court while deciding an application for custody of a minor child. In the absence of such prescribed procedure under the statute, the only thing to be considered by us is whether the procedure adopted by the learned Family Judge is unfair and in violation of the principles of natural justice. Both the parties were given fair opportunity of being represented and to state their cases. It is also pertinent to notice that the Appellant did not seek any opportunity before the Family Court either to lead evidence in addition to what he has stated in his pleading or to cross-examine the respondent. Having failed to seek such opportunity before the Family Court, it should not He in the mouth of the Appellant now to contend that the Family Court suo motu ought to have given him an opportunity and called upon him to adduce evidence. Having heard the learned counsel for the both the parties for considerable time, we are fully satisfied that the Family Court has not committed any Irregularity or illegality in entrusting the custody of the minor child to the mother. The learned Family Court Judge has pointed out that the child has been staying with the mother from October, 1998, and the appellant father never bothered to extend any support, financially or otherwise, to take care of the child till date.
24. Sri R.B. Sadashivappa nextly contended that in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is lawful natural guardian of the child and if the Family Court wants to deny that right to the father, it should have strong and weighty reasons. We fully agree with the submission of the learned counsel for the Appellant. But, we find that the Family Court has stated weighty reasons, to which, reference is made supra, for entrusting the custody of the child to the mother, keeping in mind the paramount welfare of the child.
We are also quite satisfied that the entrustment of the custody of the minor child to the mother would be in the better interest of the minor. In the result and for the fore going reasons, we dismiss the appeals with no order as to costs.