Smt Kanupriya vs Ashutosh Agrawal on 5 July, 2017

Reserved Judgment


Appeal from Order No. 99 of 2017

Smt. Kanupriya ………… Appellant


Ashutosh Agrawal. …………. Respondent

Mr. J.C. Belwal, Advocate for the appellant.
Mr. Tapan Singh, Advocate for the respondent.


Coram: Hon’ble K.M. Joseph, C.J.

Hon’ble V.K. Bist, J.

Dated: 5th July, 2017


This appeal is filed under Section 19 of the Family Courts Act,
1984 (hereinafter referred to as the “Act”) against order dated
07.02.2017 passed by the Family Court, by which the Judge, Family
Court, has allowed the amendment of the plaint. This is an appeal,
which is maintained under
Section 19 of the Act, which reads as

“19. 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

(6) An appeal referred under sub-section (1) shall be
heard by a Bench consisting of two or more Judges.”

2. Therefore, it is clear that an appeal will not lie against an
interlocutory order. We requested the learned counsel to address us
on the issue whether the appeal is maintainable in view of the
embargo against entertaining appeals against interlocutory orders.

3. We heard Mr. J.C. Belwal, learned counsel for the appellant and
Mr. Tapan Singh, learned counsel for the respondent.

4. Learned counsel for the appellant relied on a Full Bench
judgment of the Allahabad High Court in Rama Shanker Tiwari vs.
Mahadeo others, reported in 1968 ALJ 109. Therein, the question
arose whether an order allowing an amendment application would
amount to a case decided. The judgment is dated 15.12.1967. The
court took the view that an order passed either allowing an
amendment or refusing to allow an amendment is a case decided. The
court, inter alia, took the view that, to hold otherwise, would be
denying the parties relief where it is most needed and in the
perpetuation of gross injustice as the parties will have to wait till the
suit is decided on merits. The court also reasoned that the word
“case” in
Section 115 is a word of comprehensive import. An
interlocutory order, which has a direct bearing on the rights of the
parties, was found to be a case decided within the meaning of
115, though it does not finally disposes of the matter. The word

“case” has received a liberal interpretation and it was found to have a
very wide import. We may, at once, notice that the court was
considering the scope of the word “case decided”.

5. In fact, learned counsel for the respondent also supported the
stand of the appellant that allowing an amendment gives rise to a right
of appeal under
Section 19 of the Act.

6. We may also notice the judgment of the Bench of this Court in
Rahul Samrat Tandon vs. Smt. Neeru Tandon, reported in 2010 (2)
UD 4. Therein, the appeal was filed under
Section 19 of the Act
against an order passed on an application under
Section 24 of the
Hindu Marriage Act, 1955. The court referred to the decisions in the
cases of
Sunil Hansraj Gupta vs. Payal Sunil Gupta, reported in AIR
1991 Bombay 423;
Radheshyam Gupta vs. Smt. Laxmi Bai, reported
in AIR 1977 Madhya Pradesh 271; and
Gurbaksh Singh vs. Smt.
Taran Jit, reported in AIR 1977 Himanchal Pradesh 66. The court
took the following view:

“11. A bare perusal of Section 19 (1) of 1984 Act shows
that an appeal is only maintainable in two cases. Firstly, it is
maintainable against a judgment. Secondly, it is also
maintainable against an order, if that order is not an
interlocutory order. Now even assuming for the sake of
argument that the order presently impugned is an order of an
interlocutory nature, then what has to be seen is as to whether
the order stands in the category of a “judgment”, as stated under
Section 19 of the 1984 Act. The word “judgment” has not been
defined in the
Family Court Act. It is defined under Section 2
(9) of the Code of Civil Procedure as follows:

“2. Definitions.-

(9) “judgment” means the statement given by the Judge
of the grounds of a decree or order ;”

This definition, referred above, is of no use to us as it
does not define either the wide or narrow parameters within
which the word “judgment” has to be construed nor does it state
as to what are the characteristics of a ‘judgment’. However,
there are a catena of decisions defining the parameters of what
would constitute a “judgment”. Leading case on this issue is
that of Shah Babulal Khimji Vs. Jayaben D. Kania and
another AIR 1981 SC 1786. The Supreme Court in this
seminal judgment had laid down the parameters within which
the Court must examine as to when an order or even an

interlocutory order has the trappings of a judgment. Though the
issue was as to what would constitute a “judgment” which
would be appealable in a letter patent appeal, all the same, the
broad principles laid down in the above case would equally
apply to the present case as well. As per the ratio laid down by
the Apex Court in the above judgment, an order or an
interlocutory order would be called a judgment, if it has the
quality of “finality” to it. The Apex Court laid down that there
can be three kinds of judgments. Relevant portion of the said
judgment to that effect is as follows:

“(1) A final judgment–A judgment which decides all
the questions or issues in controversy so far as the trial Judge is
concerned and leaves, nothing else to be decided. This would
mean that by virtue of the judgment, the suit or action brought
by the plaintiff is dismissed or decreed in part or in full. Such
an order passed by the trial Judge indisputably and
unquestionably is a judgment within the meaning of the Letters
Patent and even amounts to a decree so that an appeal would lie
from such a judgment to a Division Bench.

(2) A preliminary judgment–This kind of a judgment
may take two forms–(a) where the trial Judge by an order
dismisses the suit without going into the merits of the suit but
only on a preliminary objection raised by the defendant or the
party opposing on the ground that the suit is not maintainable.
Here also, as the suit is finally decided one way or the other, the
order passed by the trial Judge would be a judgment finally
deciding the cause so far as the trial Judge is concerned and,
therefore, appealable to the larger Bench. (b) Another shape
which a preliminary judgment may take is that where the trial
Judge passes an order after hearing the preliminary objections
raised by the defendant relating to maintainability of the suit,
e.g., bar of jurisdiction, res judicata, a manifest defect in the
suit. Absence of notice under Sec. 80 and the like, and these
objections are decided by the trial Judge against the defendant,
the suit is not terminated but continues and has to be tried on
merits but the order of the trial Judge rejecting the objections
doubtless adversely affects a valuable right of the defendant
who, if his objections are valid, is entitled to get the suit
dismissed on preliminary grounds. Thus, such an order even
though it keeps the suit alive, undoubtedly decides an important
aspect of the trial which affects a vital right of the defendant
and must, therefore, be construed to be a judgment so as to be
appealable to a larger Bench.

(3) Intermediary or interlocutory judgment: Most of
the interlocutory orders which contain the quality of finality are
clearly specified in clauses (a) to (w) of Order 43, Rule 1 and
have already been held by us to be judgments within the
meaning of the Letters Patent and, therefore, appealable. 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, the orders may adversely affect a
valuable right of the party or decide an important aspect of the

trial in an ancillary proceeding. Before such an order can be a
judgment the adverse affect on the party concerned must be
direct and immediate rather than indirect or remote…”

The court referred to the judgment of the Apex Court in Shah
Babulal Khimji vs. Jayaben D. Kania and another, reported in AIR
1981 SC 1786. Therein, the Apex Court had categorized the decisions
as final judgments, preliminary judgments and intermediary or
interlocutory judgments. Under the category of “intermediary or
interlocutory judgment”, the Apex Court observed as already referred
to above. The court also referred to the judgment of the Full Bench of
the Allahabad High Court in Smt. Kiran Bala Srivastava vs. Jai
Prakash Srivastava, reported in 2005 (23) LCD 1. The court further
appreciated the importance of an order passed under
Section 24 in the
light of the aforesaid judgment noting that the provision is important
from the point of view of the wife, as her survival during the
pendency of the proceedings under the Act and right to prosecute or
defend the proceedings depends on the outcome of the proceedings
Section 24. Agreeing with the Allahabad High Court judgment,
the court held that the appeal is maintainable as the impugned order
therein was in the nature of a judgment and is appealable under
Section 19 of the Act.

7. In Major Raja P. Singh vs. Smt. Surendra Kumari, reported
in AIR 1991 Rajasthan 133, a Division Bench of the Rajasthan High
Court was considering whether an order passed in an application for
comparing signature of the appellant on certain documents and of
adding certain new grounds in the petition would be appealable under
Section 19 of the Act. Finally, the court formulated the question as to
whether an order allowing or rejecting an amendment is appealable.
The court held as follows:

“11. The object of this Special Law of the Family
Courts Act is to decide the matrimonial cases in a speedy
manner. If, the order rejecting or allowing an amendment
application will be termed as the case decided for the purpose
of this Act and is appealable then, in ordinary course of law the
decision of such cases would take years to come to reach the

finality of the matter. In order to achieve the object of the Act
i.e. speedy settlement of dispute relating to marriage, the
purpose of expeditious trial is frustrated. That apart if the
legislature intended that all interlocutory order be appealable, it
should not have used the word in
S. 19 of the Act “not being an
interlocutory order” and that is why no appeal or revision has
been provided.”

8. In Raj Kumar Shivhare vs. Assistant Director, Directorate
of Enforcement and another, reported in (2010) 4 SCC 772, dealing
with a case under
Section 35 of the Foreign Exchange Management
Act, 1999, which provided for appeal from any decision or order of
the appellate authority, the court took the view that the word “any”
would mean “all” and there was no reason, in the absence of a
contrary statutory intent, to give it a restrictive meaning.

9. In the judgment of the High Court of Kerala in the case of
Thankappan Nair vs. Prasannakumari others in M.F.A. No.
1760/1994-B, decided on 30.06.1995, a Bench considered the
question whether an order attaching the salary for failure to pay
maintenance as ordered by the court was interlocutory. The court
concluded that the order was interlocutory. The court, inter alia, held
as follows and dismissed the appeal finally:

“6. In Webster’s “New World Dictionary” the word
“interlocutory order” has been defined as an order other than
final decision. This expression “interlocutory order” has
appeared differently in different statutes and received different
construction by the courts depending upon the contexts and
setting in which the expression has been used. Under
397(2) of the Code of Criminal Procedure, revisional
jurisdiction is excluded in relation to an interlocutory order.
However, the expression “interlocutory order” appearing in the
said section has received wider meaning in a number of
decisions (vide Amar Nath v. State of Hariyana
MANU/SC/0068/1977 : 1977 (4) SCC 137,
Madhu Limaye v.
State of Maharashtra MANU/SC/0103/1977 : (1977) 4 SCC
551 and Hariyana Land Reclamation and Development
Corporation Ltd. v. State of Hariyana MANU/SC/0473/1990 :
(1990) 3 SCC 588.

8. With the help of legal principles discussed in the
above decisions we can gauge the amplitude of the expression
“interlocutory order” in
Section 19 of the Act. We bear in mind
that what is banned under the said Chapter is not only appeals

against interlocutory orders but even the revisional jurisdiction
is also foreclosed in the sweep. Of course, it is unusual that in a
statute wherein appellate jurisdiction is closed then revisional
jurisdiction is also closed in respect of the same category of
orders. What would have been the legislative intent in
providing such a ban. The parties in Family Courts very often
include destitute and orphaned wives and or children and
perhaps poor widows also. If appeal or revision is provided
against interlocutory orders the proceedings in the Family Court
could successfully be scuttled by rich and contumacious
opposite parties by taking the matter to the High Court against
any order passed during interlocutory stages. Legislature would
have intended to prevent it. In that perspective it can be
construed that the interlocutory order envisaged in Chapter V of
the Act is an order other than final orders. Hence the meaning
of interlocutory order in
Section 19 shall be understood as an
order which is not a final order.”

10. In K.A. Abdul Jaleel vs. T.A. Sahida, reported in AIR 1997
Kerala 269, a Division Bench of the Kerala High Court was dealing
with an appeal under
Section 19 of the Act, wherein the appeal was
filed against an order by which the petition filed by the respondent
was held to be maintainable in terms of clause (c) of the Explanation
Section 7(1) of the Act. The Family Court took the view that it had
jurisdiction to entertain the petition and, therefore, the appellate court
took the view that it would affect the rights of the parties. The court
took the view that the expression “interlocutory order” has to be
understood in the context of the meaning of the expression “case
decided” in Section 115 of the Code of Civil Procedure. The court in
this regard referred to the judgment in
Union of India vs. India
Cements Ltd., reported in 1996 AIHC 3047. Referring to the decision
in AIR 1991 Rajasthan 133, which we have already adverted to,
where the specific issue was as to whether an order rejecting or
allowing an application for amendment is appealable, the Division
Bench held as follows:

“5. Learned counsel for the respondent made a reference
to the decision reported in
Major Raja P. Singh v. Surendra
Kumari, (1993) 1 D.M.C. 285 : (AIR 1991 Rajasthan 133)
wherein it was held that the order rejecting or allowing an
amendment application could only be construed as an
interlocutory order and no appeal is maintainable under

19(1) of the Family Courts Act. The said decision has no
application to the facts of this case as the appellant therein had
effective remedy of challenging the order in an appeal to be
filed, if any, against the final judgment in the case. The
Supreme Court also had occasion to consider the question of
interlocutory order in
V.C. Shukla v. State, AIR 1980 SC 962
therein it was held that:

“Ordinarily speaking, the expression interlocutory
in legal parlance is understood in contra distinction to
what is styled as final. In the course of a judicial
proceeding before a court, for judicially determining the
main dispute brought to the court for its resolution, a
number of situations arise, when that court goes on
disposing of ancillary disputes raised by parties to the
proceeding by making orders and unless the order finally
disposes of a proceeding in a court all such orders during
the course of a trial would be broadly designated
“interlocutory” orders. Such interlocutory orders are
steps, taken towards the final adjudication and for
assisting the parties in the prosecution of their case in the
pending proceedings.”

We do not think that the impugned order is an order
passed like that. It has finally decided the rights of the parties as
regards the maintainability of the petition. Therefore, we hold
that an appeal would lie against such an order under
19(1) of the Family Courts Act.”

11. We may notice the judgment of the Apex Court in the case of
Shanti Kumar R. Canji vs. The Home Insurance Co. of New
York, reported in (1974) 2 SCC 387. Therein, the Apex Court was
considering the question whether an order of amendment would
constitute a judgment within the meaning of Clause 15 of the Letters
Patent of the Bombay High Court. The court, inter alia, held as

“10. The locus classicus is the decision of the High
Court of Calcutta in Justice of the Peace for Calcutta v. Oriental
Gas Company, (1872) 8 Bengal L.R. 433 where Sir Richard
Couch, C. J. said:

“We think that ‘judgment’ means a decision which
affects the merits of the question between the parties by
determining some right or liability. It may be either final or
preliminary, or interlocutory, the difference between them
being that a final judgment determines the whole cause or suit,

and a preliminary or interlocutory judgment determines only a
part of it, leaving other matters to be determined.”

14. In finding out whether any decision is a judgment
within the meaning of clause 15 of the Letters Patent each case
must be looked into, in order to find out as to whether there is a
decision determining the right or liability of the parties
affecting the merits of the controversy between the parties. It is
in that light that this Court in Asrumati Debi’s case (supra)
described the order refusing to rescind leave to be within the
category of a judgment as laid down in the Calcutta cases
though no final opinion was expressed as to the propriety of
that view.

17. The right to claim that an introduction of a cause
of action by amendment is barred by limitation is founded on
immunity from a liability. A right is an averment of entitlement
arising out of legal rules. A legal right may be defined as an
advantage or benefit conferred upon a person by a rule of law.
Immunity in short is no liability. It is an immunity from the
legal power of some other person. The correlative of immunity
is disability. Disability means the absence of power. The
appellant in the present case because of the limitation of the
cause of action has no power to render the respondent liable for
the alleged claim. The respondent has acquired by reason of
limitation immunity from any liability.

18. The views of the High Courts at Calcutta and
Madras with regard to the meaning of ‘judgment’ are with
respect preferred to the meaning of ‘judgment’ given by the
Rangoon and Nagpur High Courts. We are in agreement with
the view expressed by the High Court at Calcutta in the M. B.
Sirkar case (supra) as to when an order on an application for
amendment can become a judgment with in the meaning of
clause 15 of the Letters Patent. If an amendment merely allows
the plaintiff to state a new cause of action or to ask a new relief
or to include a new ground of relief all that happens is that it is
possible for the plaintiff to raise farther contentions in the suit,
but it is not decided whether the contentions are right. Such an
amendment does nothing more than regulate the procedure
applicable to the suit. it does not decide any question which
touches the merits of the controversy between the parties.
Where, on the other hand, an amendment takes away from the
defendant the defence of immunity from any liability by reason
of limitation, it is a judgment within the meaning of clause 15
of the Letters Patent. The reason why it becomes a judgment is
that it is a decision affecting the merits of the question between
the parties by determining the right or liability based on
limitation. It is the final decision as far as the trial court is

19. In finding out whether the order is a judgment
within the meaning of clause 15 of the Letters Patent it has to
be found out that the order affects the merits of the action
between the parties by determining some right or liability. The
right or liability is to be found out by the court. The nature of

the order will have to be examined in order to ascertain whether
there has been a determination of any right or liability.”

12. In fact, in Shah Babulal Khimji vs. Jayaben D. Kania
another, reported in (1981) 4 SCC 8, the Apex Court, inter alia, held
as follows:

“120. Thus, these are some of the principles which might
guide a Division Bench in deciding whether an order passed by
the Trial Judge amounts to a judgment within the meaning of
the Letters Patent. We might, however, at the risk of repetition
give illustrations of interlocutory orders which may be treated
as judgments:

(1) An order granting leave to amend the plaint by
introducing a new cause of action which
completely alters the nature of the suit and takes
away a vested right of limitation or any other
valuable right accrued to the defendant.”

13. In the case of Amar Nath and others vs. State of Haryana
another, reported in (1977) 4 SCC 137, the court considered the
concept of interlocutory order found in
Section 397 of the Code of
Criminal Procedure. The court, inter alia, held as follows:

“(3) The term “interlocutory order” in Section 397(2)
of the 1973 Code has been used in a restricted sense and not in
any broad or artistic sense. It merely denotes orders of a purely
interim or temporary nature which do not decide or touch the
important rights or the liabilities of the parties. Any order
which substantially affects the right of the accused, or decides
certain rights of the parties cannot be said to be an interlocutory
order so as to bar a revision to the High Court against that
order, because that would be against the very object which
formed the basis for insertion of this particular provision in
Section 397 of the 1973 Code. Thus, for instance, orders
summoning witnesses, adjourning cases, passing orders for bail,
calling for reports and such other steps in aid of the pending
proceeding, may no doubt amount to interlocutory orders
against which no revision would lie under
Section 397(2) of the
1973 Code. But orders which are matters of moment and which
affect or adjudicate the rights of the accused on a particular
aspect of the trial cannot be said to be interlocutory so as to be
outside the purview of the revisional jurisdiction of the High


14. However, in V.C. Shukla vs. State through CBI, reported in
AIR 1980 SC 962, the Apex Court was dealing with the connotation
of the word “interlocutory order” in
Section 11 of the Special Courts
Act. The revision was sought to be maintained against an order
directing framing of charge against the appellant. The attempt of the
appellant was to establish that the word “interlocutory order” figuring
Section 11 of the Special Courts Act must receive the same
interpretation as was given to the word “interlocutory order” in
Section 397 of the Code of Criminal Procedure. The majority,
however, repelled the said contention. The court took the view that,
having regard to the purpose of the
Special Courts Act, the words
“interlocutory and intermediary order” would be in contra-distinction
to a final order. The court also took the view that the purpose of
incorporating sub-section (2) in
Section 397 was to avoid unnecessary
litigation over orders and it was to actually benefit the accused in the
ordinary criminal cases. The court, inter alia, held as follows:

“The dominant purpose of the Act is to achieve not only
speedy determination but a determination with the utmost
dispatch. Therefore, the provisions of the Act must be
interpreted so as to eliminate all possible avenues of delay or
means of adopting dilatory tactics by plugging every possible
loophole in the Act through which the disposal of the case may
be delayed. It was for this purpose that a non obstante clause
was put in S.11 of the Act so as to bar appeals against any
interlocutory order whether it is of an intermediate nature or is
quasi final.

As the non obstante clause expressly excludes the
of the Code of Criminal Procedure, Courts cannot
call into aid the provisions of
S. 397(2) of the Code which
would amount to frustrating the very object which S.11 seeks to
advance. The absence of revision is more than compensated by
giving the accused a right of an appeal against any judgment or
order of the Special Judge as of right and open on facts and law.
The trial is held by a sitting High Court Judge who also would
have the power of revision if he was sitting in a High Court.
Therefore, it would not be in keeping with the dignity, decorum
and status of the Special Judge to provide for an appeal even
against such an order which he is supposed to pass with full
application of mind and due deliberation.

In order to construe the term ‘interlocutory’, it has to be
construed in contradistinction to or in contrast with a final
order. In other words, the words ‘not a final order’ must
necessarily mean an interlocutory order or an intermediate

order. Thus, the expression ‘interlocutory order’ is to be
understood and taken to mean converse of the term ‘final

An interlocutory order merely decides some point or
matter essential to the progress of the suit or collateral to the
issues sought but not a final decision or judgment on the matter
in issue. An intermediate order is one which is made between
the commencement of an action and the entry of the judgment.
An order framing of the charge being an intermediate order falls
squarely within the ordinary and natural meaning of the term
‘interlocutory order’ as used in
S. 11(1) of the Act.”

15. Therefore, it can be seen that there is no uniform understanding
of the word “interlocutory order”. The word assumes the meaning
from the context of the statute and the purpose of the statute. We
have already noticed that the Apex Court in (1974) 2 SCC 387 took
the view that an order of amendment can, in certain situations, be
treated as a judgment. The court took the view that, if the amendment
merely allows the plaintiff to state a new cause of action or ask a new
relief or include a new ground of relief, all that happens is that it is
possible for the plaintiff to make further contentions. The court does
not decide the correctness of the contentions at that stage. It was
found that such amendment merely regulates the procedure
applicable. It does not decide any question touching the merit of the
controversy. In a case, where, however, the defence of immunity
available to the defendant is taken away in the matter of limitation, it
becomes a judgment. That case, as already noticed, related to an
intra-court appeal. Here, we are concerned with the
Family Courts
Act. Amendments of pleadings are of different kinds. If an appeal is
allowed against amendments ordered, one way to look at it is that the
matter would be decided at that stage and he does not have to wait for
an opportunity, which he, undoubtedly, has to challenge the order of
amendment in the course of the appeal against the final order, which
would be passed. It could be that, at that stage, if the appellate court
finds that the amendment was wholly unjustifiably allowed, the matter
may merit a remand. If the intention of the Legislature in excluding
interlocutory orders is to expedite the proceedings in the matrimonial
causes, will not such a view hamper the object sought to be achieved
by the Legislature? Even when a court allows an application for

amendment, it is settled law that the court does not sit in judgment
over the correctness or the merit of the pleadings. The amended
proceedings only will provide the framework within which the trial
would proceed, evidence adduced, arguments canvassed and decision
rendered. Further, the party has always a right to challenge the order
of amendment in the appeal from the main judgment. Also, it is not
irrelevant to notice that the party can, in appropriate cases, invoke the
jurisdiction under
Article 226 of 227. The advantage of taking the
view that an order of amendment will not be treated as a judgment and
will be treated only as interlocutory order is that the purpose of the
Family Courts would, in one sense, be advanced, inasmuch as, the
delay which attends the challenge of proceedings and before the
appellate court would stand obviated. Ordinarily, amendments are to
be allowed liberally. Therefore, an order allowing an amendment is
rarely interfered with.

16. Coming to the facts, this is not a case, where any vested right
by way of limitation or any other right as such, which is accrued to the
defendant, is being taken away. Two paragraphs are added by way of
amendment. In fact, in the original plaint itself, it is stated that the
marriage took place on 21.05.2013 and that the appellant left on
28.05.2013 for her paternal house. English translation of paragraph 4
of the original plaint reads as follows:

“4. That the intention of the respondent was always to stay
away from the petitioner and, on one pretext or the other,
she never gave matrimonial pleasure to the petitioner and
always tried to escape from cohabitation and, after one
week, on 28.05.2013, she went to her paternal house
along with her jewelry and clothes.”

17. The amended paragraphs appear to suggest that the marriage
was not consummated. As already noticed, the court does not sit in
judgment over the correctness of the pleadings at the stage when
amendment is allowed. Certainly, the burden is on the petitioner to
establish his case with convincing evidence. We cannot even treat
this as a case, even applying the tests applied in (1981) 4 SCC 8 or

(1974) 2 SCC 387, which would qualify as a decision, which is
amenable to appellate jurisdiction under
Section 19 of the Act.

18. In such circumstances, we hold that the present appeal is not
maintainable and it is dismissed as not maintainable. This would be
without prejudice to any other remedies open to the appellant. There
will be no order as to costs.

(V.K. Bist, J.) (K.M. Joseph, C. J.)
05.07.2017 05.07.2017

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