Goutam Bhaduri J. 11.10.2023

1. This appeal is against the order dated 16.01.2023 and order dated 14.07.2022 passed by the Family Court, Rajnandgaon in Case No.59/2022, wherein, limited visitation right has been given to the father (appellant) to meet the child. In the initial order dated 14.07.2022, the Family Court has observed that the father can meet the child in the Meditation Centre situated at concerned District Court premises. Subsequently, another application was filed, wherein, it was prayed that the grandfather of the children, who is aged about 80 years, and is of ripened age, may also be allowed to meet the grandchildren, the said application too has been dismissed.

2. Learned counsel for the appellant would submit that the order passed is not fruitful for the reason that the meeting of the child in the Court premises defeats the entire purpose. He submits that the grandfather of the children may also be allowed to meet the children and the order of visitation right may be modified accordingly until the custody battles are decided.

3. Per contra, learned counsel for the respondent opposes the submission made by counsel for the appellant and would submit that there is no such prayer made in the appeal and an affidavit of grand father has also not been filed. He would further submit that the father can meet the children in the Office of DLSA, which would serve the purpose. He would submit that the order passed by the Family Court allows the visiting rights, hence, it does not require any modification. He would further submit that the Court premises is a safer place, where the children can meet their father as it also touches upon their security and safety. In support of his contention, he would place reliance on the judgment passed by Division Bench of this Court in the matter of Prabhat Vs. Minor Lomesh and Anr, 2022 CGHC 29679-DB

4. We have heard learned counsel for the parties.

5. The present appeal has been filed against the interlocutory orders. Reading of sub section (1) of Section 19 of the Family Court Act, 1984 speaks “save as provided under sub section (2) of Section 19”. Meaning thereby, the appeal would not lie and interlocutory order cannot be challenged. To put it otherwise, the right of appeal comes with a limitation except with the interlocutory order. A question thus arises as to what would be the effect of the order though it is in the nature of interlocutory.

6. The Supreme Court in the matter of Shah Babulal Khimji vs. Jayaben D. Kania & Anr. reported in (1981) 4 SCC 8 had an occasion to deal with the meaning of the interlocutory or intermediary judgment. The Supreme Court laid down that most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 of CPC. The right of interlocutory order which contained the quality of finality would be the judgment and therefore would be appealable. It further held that there may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that. Such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding and before such an order can be a judgment, and the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Therefore, when order vitally affects the valuable right of the defendant it would be undoubtedly treated as judgment to make it appealable.

7. The Delhi High Court in the matter of Manish Aggarwal Vs. Seema Agrawal, 2013 (7) RCR (Civ) 2109 has observed while interpreting Sections 25 and 26 of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) along with the interim maintenance which is determined under Section 24 of the Act, 1955, that the order of such nature of interim maintenance would be final in its nature till the decision on the main matter as it would have a finality attached to them