A.V. Chandrashekara, J.@mdashRegistry has raised objection No. 3 regarding maintainability of the present appeal filed under Order XLIII Rule 1, C.P.C. The objection raised is as follows: ''Provision of law for M.F.A. to be stated correctly''
2. Appellant is the plaintiff in O.S. 14/15 pending on the file of VI Additional Family Court Judge, Bengaluru. The respondent is the sole defendant in the said suit and he is the legally wedded husband of the appellant. They have a female child named Khushi aged 3 years 6 months. The plaintiff-appellant has filed a suit for the relief of declaration to the effect that the judgment and decree dated 30.3.2012 passed by the Circuit Court for Fair Fax County, U.S.A. in case law No. 2011-506 is null and void and not binding on the plaintiff and the consequential relief of permanent injunction to restrain the defendant-respondent from taking the minor child, Khushi out of the jurisdiction of Bengaluru and India.
3. During the pendency of the suit, an interlocutory application under Order XXXIX Rules 1 and 2, C.P.C. came to be filed seeking temporary injunction against the defendant from removing the custody of the minor daughter, Khushi, out of Bengaluru and India. The application has been dismissed after contest vide order dated 7.2.2015.
4. The present appeal is filed under Order XLIII Rule 1(r), C.P.C. challenging the said interlocutory order under which the I.A. filed under Order XXXIX Rules 1 and 2, C.P.C. has been dismissed.
5. Office of this Court has raised objection about the maintainability of the appeal in the light of inhibition found under Section 19 of the Family Courts Act, 1984, (hereinafter referred to as the Act, for brevity).
6. Section 19(1) of the Family Courts Act 1984 provides for filing of an appeal against any judgment or order, not being an interlocutory order, of a family court to the High Court, both on facts and on law. Such appeal will have to be heard by a Bench consisting of two or more judges as found in sub-section (6) of Section 19 of the Act.
7. Sub-section (5) of Section 19 of the Act specifically mandates that ''except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.'' Though the order in question is an interlocutory order arising out of the rejection of an application filed under Order XXXIX Rules 1 and 2, C.P.C., there is an inhibition to entertain the present appeal filed under Order XLIII Rule 1(r), C.P.C. against an order rejecting injunction, in view of the specific mechanism found in the special Act, i.e. The Family Courts Act, 1984.
8. Learned counsel for the appellant has relied on the Division Bench decision of this court rendered in the case of
"....A perusal of the relevant provisions of the Act, unambiguously leads to the conclusion that no provision has been made for filing of an appeal or revision against an interlocutory order passed by the Family Court. In the absence of a provision to the contrary, no party acquires a right to approach the higher Court by way of appeal or revision. The appeals under the Act are maintainable only against the final orders. It is settled position of law that an appeal is a statutory right which may not be conferred upon a party unless special provision is made under law for filling of such an appeal."
In this view of the matter, the decision relied upon by the learned counsel for the appellant is of no help.
9. Learned counsel for the appellant has relied on another decision of the High Court of Delhi reported in 2012 (192) DLT 714 between Manish Aggarwal v. Seema Aggarwal and Others there the question was as to whether the appeal was maintainable against an interlocutory order passed by the Family Court.
10. Relying on the decision rendered in the case of
11. Learned counsel for the appellant has relied on yet another decision in the case of
12. The question of maintainability of the appeal was not raised in the said case and therefore this court had no occasion to deal with the said aspect. In the present case, the office has raised objections regarding maintainability of the appeal in the light of specific inhibition under Section 19 of the Family Courts Act. In the light of the Division Bench decision of this court in the case of SHASHI SHARMA @ SEEMA (supra), as found in paragraph 6 of the said judgment, the present appeal is not maintainable.
13. In the result, I pass the following order:
ORDER
Office objection is upheld. The appeal filed under Order XLIII Rule 1(r), C.P.C. challenging the interlocutory order passed by the Family Court, is not maintainable. Consequently the appeal is dismissed as not maintainable. Appellant to choose any other remedy available under law.
At this stage, the learned counsel for the appellant seeks permission of the Court convert this appeal as a writ petition.
The learned counsel for the appellant is permitted to convert this appeal to writ petition.
