Smt. Varsha Lakhmani vs Hitesh Wadhva

Amitava Lala, J.—This appeal arises out of the order dated 09th January, 2008 passed by the Principal Judge, Family Court, Varanasi refusing to pass an interim order of injunction regarding custody of minor Daksha in favour of the plaintiff-appellant u/s 12 of the Guardians and Wards Act, 1890 (hereinafter called as ''Guardians and Wards Act'') fixing a date for conciliatory talks on 13th March, 2008.

Admittedly, minor Daksha, son of the defendant-respondent, is now staying with the plaintiff-appellant, who is maternal grandmother of the minor, at Varanasi, Uttar Pradesh. No order has been passed as yet by any Court in the State of Uttar Pradesh giving any custodial right in favour of the father, the defendant-respondent herein.

One Mrs. Dipika (since deceased), wife of the defendant-respondent and daogfiter of the plaintiff-appellant, expired on 24th/25th April, 2006 while she was residing with her parents at Varanasi. The plaintiff-appellant initiated a criminal proceeding of dowry death against the respondent husband of Mrs. Dipika, which was registered as Case Crime No. 13 of 2007, under Sections 304-B 498-A 504 506 of Indian Penal Code read with Section 3 4 of the Dowry Prohibition Act at Police Station Mahila Mahanagar, District Varanasi. However, after the police investigation in the said criminal case a final report has been filed in favour of the defendant-respondent. But the Court below has not come to a final conclusion on such report due to non-availability of certified copy of the final report. But from the photocopy of the first information report lodged against the defendant-respondent by the plaintiff-appellant the Court below observed that there is no allegation regarding the demand of dowry or any unnatural death. It is also observed by the Court below that defendant-respondent has filed photocopy of an application therein, being Paper (Page?) No. 28C/2, which was filed by Sri Dwarika Das, husband of the plaintiff-appellant, in the Nagar Nigam Varanasi informing death of his daughter, to establish that cremation was done in presence of in-laws of the deceased, Panches of Sindhi Samaj and relatives of plaintiff-appellant, and the cremation was done by Sri Avinash Badhya (Wadhva?), the younger brother of the defendant-respondent. It is also recorded by the Court below that after the death of the deceased, the defendant-respondent, being husband of deceased, took minor Daksha with him at his place of residence i.e. Bhopal, Madhya Pradesh. It is complained that one day the plaintiff-appellant and her husband in the pretext of taking minor Daksha for a walk took him to Varanasi. As a result whereof, the defendant-respondent has filed an application before the concerned Magistrate u/s 97 of the Code of Criminal Procedure, 1973 for search. Ultimately, considering all pros and cons i.e. prima facie case, balance of convenience and irreparable loss and injury, the Court below rejected the application for injunction and directed to place the matter on 13th March, 2008 for conciliatory talks.

According to us, in such type of proceedings a final decision could be reached weighing the balancing factors keeping in the mind the principle that right of the father, as a natural guardian, is unlimited but such right can not be provided at the cost of welfare of the child. However, such stage has not yet been reached nor the custody is directed to be given by the Family Court at an interlocutory stage. Therefore, no right of the plaintiff-appellant has been infringed as yet. Thus, apparently the attempt to get an order of injunction regarding custody of the child by the plaintiff-appellant is a futile attempt. However, at the invitation of the defendant-respondent we have entered into different context as discussed below.

Mr. K.S. Tiwari, learned Counsel appearing for the defendant-respondent, raised an objection about maintainability of the appeal from such order refusing grant of interim injunction at first, which has been strongly opposed by Mr. B.D. Mandhyan, learned Senior Counsel appearing in support of the plaintiff-appellant with the able assistance of Mr. Udai Chandani, learned Counsel for the plaintiff-appellant taking a plea that the order is appealable under Order XLIII Rule 1 of the CPC with the interpretation of Full Bench judgement of this Court reported in 2005 (23) LCD 1 (Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava). It appears to us that the objection on the part of Mr. Mandhyan is based on the well celebrated decision of the Supreme Court reported in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, Therefore, our endeavour would be consider appealability of the order impugned.

According to Mr. Tiwari, the order, which was passed u/s 12 of the Guardians and Wards Act, is interlocutory in nature from which no appeal could lie as per the provisions of Order XLIII Rule 1 of the Code of Civil Procedure, 1908. This appeal is arising out of an order of the Family Court, hence the scope of appeal will be guided by the Family Courts Act, 1984 (hereinafter called as ''Family Courts Act'') but not by the Code of Civil Procedure.

Chapter V of the Family Courts Act speaks about the appeal u/s 19 of such Act. The heading of this chapter is "Appeals and Revisions". The scope of appeals has been substituted by the Act 59 of 1991 with effect from 28th December, 1991. Section 19 of such Act speaks as follows:

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.

Section 47 of the Guardians and Wards Act being subjective law also provides scope of appeal, as quoted hereunder:

Orders appealable.- An appeal shall lie to the High Court from an order made by a Court,-

(a) u/s 7, appointing or declaring or refusing to appoint or declare a guardian; or

(b) u/s 9, Sub-section (3), returning an application; or

(c) u/s 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or

(d) u/s 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or

(e) u/s 28 or Section 29, refusing permission to a guardian to do an act referred to in the section; or

(f) u/s 32, defining, restricting or extending the powers of a guardian; or

(g) u/s 39, removing a guardian; or

(h) u/s 40, refusing to discharge a guardian; or

(i) u/s 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or

(j) u/s 44 or Section 45, imposing a penalty.

According to us, the special derogates from the general as per the maxim generalibus specialia derogant. On the other hand, general things do not derogate from the special things following the maxim generalia specialibus non derogant. The Guardians and Wards Act and Family Courts Act are special Acts, when the Guardians and Wards Act is the subjective law then the Family Courts Act is procedural law. But both have made certain provisions for preferring an appeal. Neither of the Acts provides remedy of appeal from such type of order. Characteristics and trappings of finality of an order as under Order XLIII Rule 1 of the CPC read with the interpretation of guidelines of Shah Babulal Khimji (supra) can not be applicable herein. It is to be remembered that any subsequent general law or interpretation thereof can not override the enactments of the special statute in relation to the matters dealt with by such subsequent laying down general principle of law. In other words, it can not derogate from the earlier special law in spite of the maxim leges posteriores priores conterarias abrogant i.e. later laws abrogate earlier contrary laws applying the rule of construction. In cases of conflict between the special provision and general provision, the special provision prevails over general provision and the general provision applies only to such cases, which are not covered by the special provision. Lot of discussions are available with regard thereto in the judgement of the Supreme Court as reported in The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, One other special feature is that legislature introduced the Family Courts Act, 1984 with effect from 14th September, 1984 with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith, much after the judgement of Shah Babulal Khimji (supra) delivered on 10th August, 1981. Therefore, when such Family Courts Act clearly debars scope of appeal from any interlocutory order in its provisions, it can be construed that the legislature deliberately done so keeping in its mind ratio of such judgement. Hence, such special statute being posterior to the applicability of general law and its interpretation can not override the intention of the legislature. We are all aware that after the judgement of Shah Babulal Khimji (supra) there is a sea change with regard to wideness of scope of appeal from the interlocutory orders particularly in the cases of injunction and receiver. By such judgement it is declared that such type of orders are judgements in the wider sense. Therefore, as per the ratio of the judgement, refusal of appointment of receiver and/or grant of ad interim injunction both are also undoubtedly judgement within the meaning of the Clause 15 Letters Patent. Order XLIII Rule 1 of the CPC applies to internal appeals in the High Court and apart from it such an order if on merit contains the quality of finality and would, therefore, be a judgement within the meaning of the Clause 15 of the Letters Patent. However, such judgement expressly or impliedly either by the majority view or by the minority view held that the expression has necessarily to be considered and interpreted in each particular case. According to us, this judgement has extended the scope because of disparity between the scope of appeal in the original side of the Chartered High Courts and the scope of appeal in the appellate side of the other High Courts. In the Chartered High Courts, where Letters Patent and Original Side Rules are applicable, the provision of appeal is available from almost all the similarly placed orders, when right of appeal is restricted under the CPC made for the High Courts where Letters Patent and Original Side Rules are not available. Therefore, to remove the disparity the Supreme Court extended the scope to have the right of appeal for all the High Courts where the characteristics and trappings of final order are available. Mr. Mandhyan contended that since the application is in the nature of injunction, it is squarely covered under Order XXXIX Rule (2) of the CPC when injury is complained, which can not be compensated by any manner whatsoever, moreover the right can not be interfered with. We are of the view that nomenclature "injunction" can not be read in isolation but in the context of the appropriate case. Here, the Court has to ultimately come to final finding about the welfare of the child upon weighing various evidences. The Court has not reached to such stage as yet in a situation when the plaintiff-appellant herself and her husband are keeping the custody of the child with them. We are not on that issue now but on the issue of genesis of special Act vis-�-vis general Act and its applicability in this case.

So far as Smt. Kiran Bala Srivastava (supra) is concerned, it deals with following question:

Whether an appeal u/s 19 of the Family Courts Act, 1984 would lie against an order passed u/s 24 of the Hindu Marriage Act, for grant of interim maintenance?

Therefore, we have to see the scope and ambit of such Act particularly the Section referred in the question.

Section 24 of the Hindu Marriage Act, 1955 deals with maintenance pendente lite and expenses of proceedings. Section 25 deals with permanent alimony and maintenance. Therefore, both the above Sections have no face value in the present proceeding. Section 26 deals with custody of children. Therefore, it is nearer to Section 12 of the Guardians and Wards Act, which is applicable in the present case. Section 28 of said Act deals with question of appeals from the decrees and orders. Section 28 of the Act is as follows:

Appeals from decrees and orders.- (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act u/s 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 sha11 lie to the Court to which appeals ordinarily he from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this Section on the subject of costs only.

(4) Every appeal under this Section shall be preferred within a period of ninety days from the date of the decree or order.

From the provision of Section 28 of the Hindu Marriage Act it is crystal clear that all decrees are appealable in nature. Therefore, a necessity arose to consider the cause of Section 24 of such Act, which itself could exist for pendente lite period and can not exist after decree. Hence, it has to have the characteristics and trappings of final order. In any proceeding there are two stages i.e. interim and final. But an order u/s 24 itself exists at an interim stage till final decision. Therefore, in that way the order under such Section seems to be both interim and final. Hence, characteristics and trappings of finality is available under such section. Thus, the Full Bench has rightly accepted the ratio of Shah Babulal Khimji (supra) with regard to the Section under anterior Act. But such decision by no means is applicable under the Section of the Act applicable herein. Therefore, this case is to be considered only on that background being relevant for the purpose.

Hence, we conclude by saying that the procedural law i.e. The Family Courts Act, 1984 promulgated about three years after the judgement of the Supreme Court in Shah Babulal Khimji (supra), does not give any room for the purpose of appeal from any interlocutory order. Secondly, neither the subjective law i.e. The Guardians and Wards Act, 1890, under which the application was made, provides any scope of appeal from such type of order nor any similar provision under different Act i.e. Section 26 of the Hindu Marriage Act, 1955 provides any scope of appeal from an interim order. Lastly, express intention of the legislature is to be understood from its plain reading at first and in case any vacuum arose, the same is to be understood by the implied intention from such Act as well as parallel Act, if any. In this case neither the express intention nor the implied intention of the legislature speaks that an appeal can be preferred from the order impugned.

Therefore, in totality we can not admit the appeal. Hence, the appeal is dismissed upon being heard on the basis of informal papers and on exchange of affidavits, as agreed upon, without imposing any cost.

Shishir Kumar, J.

I agree.