An ex parte divorce decree is not an interlocutory order, hence appealable under S. 19 of Family Courts Act

Orissa High Court: While deciding upon the challenge to the maintainability of the present matrimonial appeal as per Section 19 of the Family Courts Act, 1984, the Division Bench of B.K. Nayak and K.R. Mohapatra, JJ., held that an ex parte divorce decree is not an interlocutory order, hence an appeal against the same is maintainable under Section 19(1) of the Family Courts Act.

As per the facts of the present case, the appellant filed for decree of divorce in the Family Court, Cuttack under Section 13 of the Hindu Marriage Act, 1955. However due to non-appearance of the respondent wife, an ex parte decree of divorce was passed. The counsel for the appellant N.K. Sahu contended before the court that Section 19(1) of the Family Courts Act starts with a non-obstante clause, thus Section 10 (general appeal) of the same Act is not applicable to the appeals made under Section 19, therefore making the present appeal maintainable. The counsel for the respondent, Prabhat Kumar Mohanty however argued that Section 10 of the 1984 Act provides that procedure laid down in the CPC is applicable to a proceeding under the 1984 Act, and Family Courts shall be deemed to be civil court and for that purpose. Thus provision under Order 43 Rule 1(d) CPC is squarely applicable to the proceedings in a Family Court. Since Order 43 does not provide for appeal against allowing an application under Order 9 Rule 13 CPC, no appeal in the eye of law shall lie under Section 19(1) of the Act.

Perusing the contentions, the Court referred to the provisions in question, namely, Sections 10, 19 and 20 of the Family Courts Act and observed that Section 10 confers a substantive right of appeal to the parties; Section 19 in turn overrides the provisions of appeal under Section 96 or Section 104 CPC; and Section 20 clarifies that the provisions of the Family Courts Act will have an overriding effect, which is inconsistent with the provisions of any other law for the time being in force. The Court further observed that interlocutory orders are in the nature of temporary or interim order which does not touch the important rights and liabilities of the parties. An interlocutory order is only made to secure some end and purpose necessary and essential to the progress of the suit. By no stretch of imagination can the impugned order be said to be an interlocutory order. [Gyanasis Jena v. Rekha Swain2016 SCC OnLine Ori 560, decided on September 8, 2016]

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