Rajni Gupta v. Vikas Gupta

NAVIN CHAWLA, J NOVEMBER 14, 2019/Arya

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 31.10.2019 Date of Decision : 14.11.2019 + CM(M) 1361/2019 & CM No. 41114/2019 RAJNI GUPTA ..... Petitioner Through: Mr.Ashish Aggarwal, Ms.Reena Jain, Mr.Vineet Malhotra and Ms.Shefali Kishore, Advs. versus VIKAS GUPTA ..... Respondent Through: Ms.Geeta Luthra, Sr. Adv.with Mr.Altmish Siddiki and Ms.Kamakshi Gupta, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. By the present petition the petitioner challenges the order dated 21.08.2019 passed by the learned Judge Family Court, District Shahdara, Karkardooma, Delhi in HMA No.166/2017, titled Dr.Vikas Gupta v. Dr.Rajni Gupta. The Impugned Order dismisses the application filed by the petitioner seeking to produce additional documents as also examine various witnesses. The Impugned Order also appoints a Local Commissioner to record the evidence of the petitioner. 2. The learned senior counsel for the respondent has raised a preliminary objection on the maintainability of the present petition. She contends that against the Impugned order an appeal under Section 19(1) Page 2 of the Family Courts Act, 1984 (hereinafter referred to as the 'Act') is maintainable. This is disputed by the learned counsel for the petitioner. 3. Section 19 of the Act is reproduced hereinbelow: "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 or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (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) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding. (5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges." Page 3 4. Sub-Section 1 of Section 19 of the Act provides that an appeal shall lie from every judgment or order, not being an interlocutory order, passed by a Family Court to the High Court, both on facts and law. Therefore, what is to be determined is whether the Impugned Order challenged in the present petition can be termed as an interlocutory order within the meaning of Section 19(1) of the Act. 5. A Division Bench of this Court in its judgment dated 13.09.2012 passed in FAO 388/2012, titled Manish Aggarwal v. Seema Aggarwal & Ors., has considered the scope and ambit of Section 19 of the Act and has held as under: "26. We, thus, conclude as under: i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub- section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-se