Dr. Smt. Bindu Shukla vs Dr. Arvind Dubey

Present first appeal from order has been filed u/s 19(1) of Family Court Act against the orders dated 30.7.2009 and 23.3.2009 passed by the Principal Judge, Family Court, Lucknow in Matrimonial Petition No. 718 of 1996 ( Dr. Arvind Dubey v. Dr. Bindu Shukla).

Brief background of the case is that Matrimonial Petition No. 718 of 1996 has been filed by Dr. Arvind Dubey u/s 13 of Hindu Marriage Act. Said petition had been on going and there has been direction of this Court to decide the matter without granting any adjournment to either of the parties concerned except in exceptional circumstances with reasons to be recorded by it. In the said matrimonial proceeding, application was moved by the appellant for summing of witness including the respondent''s mother as witness, said application was rejected. Against the same, First Appeal From Order No. 382 of 2009 had been filed wherein this Court on 1.4.2009 passed following order, which is being extracted below:

In a pending divorce suit, an application moved by the appellant for summoning the respondent''s mother aged about 70 years as witness, has been rejected by the family court, Lucknow. Feeling aggrieved, the present appeal has been preferred.

It has been submitted that the respondent''s mother is aged about 70 years and she is not willing to appear in Court as witness to make statement from either side. Learned trial court rejected the application on the ground that the appellant is adopting dilatory tactics to delay the proceedings. In pursuance to the order passed by this Court, suit is to be decided at an early date. Whether the respondent''s mother wants to appear as witness or not is a question of fact which can be decided only after getting the statement of her recorded. Keeping in view in fact that the mother of respondent is aged about 70 years, it is open for the trial court to issue a Commission for her examination under Order XXVI Rule 4 of the Code of Civil Procedure.

We allow the present appeal partly and the order passed by the family court is modified permitting the family court to examine the mother of respondent under provisions of Order XXVI Rule 4 of the Code of Civil Procedure. The family court shall appoint the Advocate Commissioner to record the statement of the mother of respondent in presence of the parties counsel within one month from the date a certified copy of this order is produced and thereafter shall decide the pending suit expeditiously in terms of the earlier judgment of this Court. Family Court is further directed that no adjournment shall be granted to either of the parties except in exceptional circumstances with the reasons to be recorded by it.

Pursuant to order passed by this Court, Advocate Commissioner was authorized to record statement of DW-2 mother of respondent. Contention of the appellant is that on the said date on account of the conduct of the respondents, statement of said witness could not be recorded and further large scale of manipulation and maneuvering had been made in recording the said statement. From the side of the respondents, it has been contended that statement of said lady had already been recorded. After report of Advocate Commissioner was submitted, objection has been filed by the appellant, requesting therein that entire proceeding of the Commission held on 9.5.2009 be quashed and further statement of DW-2 may be recorded before the Family Judge in the interest of justice. The Principal Judge, Family Court, Lucknow on 30.7.2009 has proceeded to pass order mentioning therein that said objection would be considered at the time of final hearing, at this juncture present first appeal from order has been filed.

On the presentation of the matter, this Court on 11.8.2009 passed following order, which is being extracted below:

Vide a consensus order dated 1.4.2009, a Division Bench of this Court had directed the Family Court, Raebareli, to appoint a Court Commissioner for recording statement of one Smt. Shakuntala Devi (aged 70 years), mother of the respondent. However, from subsequent proceedings of the Family Court as well as the report of Court Commissioner, it appears that at the time of recording statement the witness was put under tremendous pressure by both the parties and the atmosphere stood vitiated to the extent that it was not possible for witness to give her statement independently.

In view of all the aforesaid and to instill the public faith in judicial system, it is felt necessary to ensure that the recording of statement of said witness is done without any pressure. Hence we direct the Director General of Police, U.P. at depute a lady police officer with adequate police force to facilitate the recording of statement of Smt. Shakuntala Devi in terms of directions to be given by the Presiding Officer, Family Court, Raebareli within a period of two weeks from the date of receiving a copy of this order. The police officer shall report to the Presiding Officer, Family Court, Raebareli, who shall fix the date and time for recording of the statement by Court Commissioner, who has submitted the earlier report.

Let the copy of this order issued to the Director General of Police, U.P. and the Presiding Officer, Family Court, Raebareli forthwith for strict compliance.

List the matter with the statement of Smt. Shyakuntala Devi after two weeks.

Thereafter, application has been moved for vacation of the stay order. The matter has come up before this Court and thereafter with the consent of the parties, first appeal from order is being heard and finally decided.

Sri. L.M. Khare, learned Counsel for the appellant contended with vehemence that in the present case Principal Judge, Family Court, Lucknow has failed to exercise jurisdiction vested in it by not deciding the objection and proceeding to mention that it would be decided after the judgment is delivered and further evidence has been arbitrarily closed and as such judgments and orders passed are vitiated under law, and as such appeal is liable to be allowed.

Countering the said submission, Sri Amit Arora, Advocate on the other hand contended that present appeal is not maintainable, as order dated 30.7.2009 is an interlocutory order, as nothing has been adjudicated. Further it has been stated that it was typographical error that said application would be decided after judgment is delivered, rather it is to be decided at the point of delivery of judgment, as such in the present case order dated 11.8.2009 by no stretch of imagination could have been passed by this Court and it is clearly case of over stepping of its jurisdiction, as such present appeal is liable to be dismissed and directions issued are liable to be vacated.

After respective arguments have been advanced, factual position, which is emerging in the present case is that petition u/s 13 of Hindu Marriage Act has been pending since last 13 years and in the said proceeding application was moved for summoning of respondent''s mother as witness and other witnesses and said claim was turned down. Against the said order, First Appeal From Order No. 382 of 2009 had been filed and this Court passed order by partly allowing the appeal and the order passed by the Family Court was modified by permitting the family court to examine the mother of respondent under the provision of Order XXVI Rule-4 of the Code of Civil Procedure. The family court was asked to appoint the Advocate Commissioner to record the statement of the mother of the respondent in presence of the parties counsel within one month from the date of a certified copy of this order was produced and thereafter decide the pending suit expeditiously in terms of the earlier judgment of this Court. Family court was further directed to see and ensure that no adjournment be granted to either of the parties except in exceptional circumstances with the reasons to be recorded by it.

Pursuant to order passed by this Court, Advocate Commissioner was appointed for recording statement of DW-2 mother of respondent and Advocate Commissioner was asked to submit its report. The date fixed for recording of statement by Advocate Commissioner was 1.5.2009. It has been stated by the appellant that Advocate Commissioner completed all the proceeding of Commission and thereafter legal representative of defendant/appellant started chief examination of DW-2, but he was prevented. It has been stated that on account of this hindrance, Chief Examination of DW-2 could not be recorded. Report was submitted by the Advocate Commissioner on 4.5.2009. On 4.5.2009 order was passed to record the statement in the light of the order passed by this Court on 9.5.2009 and produce the same before the Principal Judge, Family Court, Lucknow on 11.5.2009. It has been stated on behalf of appellant that on 9.5.2009 Advocate Commissioner asked the DW-2 as to whether she intends to give her statement or not and on the said date legal representative of defendant-appellant stated to the Advocate Commissioner that if she is not intending to give her statement, commission be closed. It has been further stated that Advocate Commissioner was forced to record statement as per their wish, then Videography had been done and thereafter Advocate Commissioner submitted its report on 21.5.2009. To the said report, objection has been filed and fact of the matter is that till date said objection has not been decided. From the perusal of the order dated 30.7.2009, it is reflected that Principal Judge, Family Court, Lucknow has proceeded to mention that said objection would be considered after the judgment is delivered. This is glaring case of typographical error, in place of word "saath word "paad" has been mentioned. Once it was typographical error, then application ought to have been given for rectification of the same. It has been conceded by the respondents that at the time of hearing of the matter, said objection would be considered. Once this is factual position that no decision has been taken on the objection so filed by the appellant and till date said objection still remains un decided and only date for hearing has been fixed, then by no stretch of imagination it can be said that any final decision has been taken in the matter, which will amount to final order. Order dated 30.7.2009 is in the nature of interlocutory order, inasmuch as, by means of said order, hearing on objection has been deferred and directed to be decided when the final decision is to be taken. u/s 19(1) of Family Court Act, 1984 appeal is maintainable against every judgment and order not being in interlocutory nature. Here sequence of event, which has been disclosed clearly reflects that as nothing has been decided by the order dated 30.7.2009 except for the fact that Principal Judge, Family Court, Lucknow in his wisdom has chosen to differ the hearing of the matter in respect of the objection preferred by the appellant at the point of time when he would proceed to take final decision, as such order dated 30.7.2009 is an interlocutory order, as such present first appeal from order is not at all competent and maintainable.

Next it has been sought to be contended that this appeal preferred against the order dated 23.3.2009 also and by means of the same evidence of the appellant has been closed and as such this amounts to final order, in this background, against said order appeal is competent and maintainable.

In the present case earlier two orders dated 3.2.2009 and 2.3.2009 have been passed refusing to summon witnesses and other request. In paragraph 18 of affidavit filed in support of the stay application, categorical mention has been made that against the orders dated 3.2.2009 and 2.3.2009 defendant-appellant filed first appeal from order and this Court passed order on 1.4.2009. Once validity of the orders dated 3.2.2009 and 2.3.2009 had already been questioned before this Court and this Court had proceeded to grant limited relief on 1.4.2009, then validity of orders dated 3.2.2009 and 2.3.2009 which has merely been reiterated by order dated 23.3.2009, cannot be permitted to be assailed collaterally specially when order dated 23.3.2009 does not decide anything independently but reiterates orders dated 3.2.2009 and 2.3.2009. Once this is factual scenario, which has emerged, then against the order dated 23.3.2009 present first appeal from order cannot be entertained, inasmuch as, it is nothing but reiteration of orders dated 3.2.2009 and 2.3.2009.

On factual position, which has been noted above, it is clear that order dated 30.7.2009 is an interlocutory order and appeal against the same is not competent and maintainable as objections are yet to be adjudicated in accordance with law. Order dated 23.3.2009 is nothing but reiteration of orders dated 3.2.2009 and 2.3.2009, as such present first appeal from order is being dismissed as not maintainable.

Once view has been taken that present first appeal from order is not competent and maintainable, then by no stretch of imagination this Court could have issued direction dated 11.8.2009, as it would amounting to usurping the jurisdiction of trial court, which is yet to take decision in the matter.

Consequently, present first appeal from order is dismissed as not maintainable. Interim direction dated 11.8.2009 stands discharged.

No order as to costs.