# Ishita Agarwal v. Gopal Krishna Mittal

- **Citation:** (2026) 2 ILRA 1265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-17
- **Case number:** First Appeal No. 1137 of 2026
- **Bench:** Arindam Sinha, Satya Veer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishita-agarwal-v-gopal-krishna-mittal-54157
- **Pages:** 5

## Text

2 All. Ishita Agarwal Vs. Gopal Krishna Mittal
1265
petition invoking section 13-B, it was not passed on consent and it matters little that parties
supported each other before us in the appeal.

12. The appeal is allowed and disposed of. Registry to communicate the judgment to the
Family Court.
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(2026) 2 ILRA 1265
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2026

BEFORE

THE HON'BLE ARINDAM SINHA, J.
THE HON'BLE SATYA VEER SINGH, J.

First Appeal No. 1137 of 2026

Ishita Agarwal ...Appellant
Versus
Gopal Krishna Mittal ...Respondent

Issue for Consideration
Issue pertains to the determination of whether an appeal u/s 19 of Family Courts Act, 1984 is maintainable
against an interlocutory order passed by the Family Court u/s 26 of Hindu Marriage Act, 1955, particularly
where such order merely grants interim visitation rights to a parent in respect of a minor child during the
pendency of matrimonial proceedings.

Headnotes
Family Courts Act, 1984 - s. 19 - Hindu Marriage Act, 1955 - ss. 13, 26, 28(2) - Appeal -
Maintainability - Interlocutory order - Custody of minor child - Scope - The appellant, being the
mother of a minor child aged about five years, assailed an interim order passed by the Family
Court in pending matrimonial proceedings between the parties, whereby the respondent-father
was granted visitation rights to meet the child once every month on the third Saturday within
the premises of the District Legal Services Authority - The said order was passed on an
application moved by the respondent u/s 26 of Hindu Marriage Act, 1955 seeking access,
interaction through video conferencing, and interim custody of minor - It was contended by the
appellant that similar directions for virtual interaction had already been issued in proceedings
under the domestic violence law, and thus the instant appeal was maintainable - However, the
respondent raised a preliminary objection asserting that the impugned order was purely
interlocutory in nature, having been passed during the pendency of divorce petition, and
therefore not appealable u/s 19 of Family Courts Act, 1984.

Held: Impugned judgment/order is but an interim order/direction - It is not a provision made in the decree
because such decree is yet to come on adjudication of the matrimonial dispute, still pending - Where the
Court passes a judgment and there is a decree, for example, directing dissolution of the marriage and also
providing directions for custody, a party to the proceeding can choose to appeal only against the directions for
custody by virtue of s. 26 and s. 28(2) - Such appeal would be maintainable u/s 19 in Family Courts Act, 1984
- The order being interlocutory in nature, thus, appeal not maintainable - Dismissed. [Paras 7, 8] (E-13)

Case Law Cited
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
Isma Alam v. Sri Irshad Alam, First Appeal No. 495 of 2010 judgment dated 25th January, 2011; Dr.
Prakhar Kumar v. Dr. Aditi Dhaundiyal, First Appeal No. 285 of 2025, judgment dated 17th July, 2025
- referred to

List of Acts
Family Courts Act, 1984; Hindu Marriage Act, 1955

List of Keywords
First Appeal; Interlocutory order; Maintainability of appeal: Interim order; Visitation rights; Interim custody of
minor child; Pending matrimonial proceedings; Domestic Violence; Divorce proceeding; Application u/ss. 13,
26, 28(2) of Hindu Marriage Act, 1955; Appeal u/s 19 of Family Courts Act, 1984; Interlocutory nature of
order; Appellate jurisdiction of High Court; Mediation Centre; Power of Family Court; Appeal dismissed as not
maintainable.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 1137 of 2025

From the Judgment and Order dated 20.02.2025, passed by Principal Judge, Family Court, Agra in Misc. Cases
/ 1319 / 2024

Appearances for Parties
Advs. for the Appellant:
Rakesh Kumar Garg, Yash Garg

Adv. for the Respondent:
Jai Raj

(Delivered by Hon'ble Arindam Sinha, J.)

1. Appellant is mother of the boy, who has just completed 5 years of age. Respondent is the
father, in whose favour impugned judgment/order dated 20th February, 2025 has been made by the
Family Court. English translation of operative direction in impugned judgment/order is reproduced
below.

"Therefore, on the above grounds, the applicant's application is accepted. The
respondent is directed to ensure that the applicant meets the minor child Saaransh every month on
the third Saturday in the premises of the District Legal Services Authority between 3:00 PM to 4:00
PM."

On query we have ascertained from the Bar, main divorce proceeding is still pending before
the Family Court.

2. Mr. Yash Garg, learned advocate appears on behalf of appellant. Mr. Jai Raj, learned
advocate appears on behalf of respondent and raises preliminary objection on maintainability of the
appeal. He submits, impugned judgment/order is interim in nature. There is no right to appeal
provided therefrom under section 19 in Family Courts Act, 1984. He relies on view taken by a
Division Bench of this Court on judgment dated 25th January, 2011 in First Appeal no. 495 of
2010 (Isma Alam vs. Sri Irshad Alam), inter alia, the paragraphs reproduced below.
2 All. Ishita Agarwal Vs. Gopal Krishna Mittal
1267

"Applying the principles laid down in the facts and circumstances of the present case, we
find that the learned Judge had not decided the case finally between the parties as the petition filed
under section 25 of the Act numbered as 50/70/2009 is still pending. He has only decided the
applications filed under section 12 and 26 of the Act and had directed for granting interim custody
of the minor child to the opposite party herein pending final decision on the application filed under
section 25 of the Act. Thus, the order impugned in the present appeal is an interlocutory order
and an appeal under section 19 of the Act would not lie. The submission of Sri V.M. Zaidi,
learned senior counsel that by the impugned order, the learned Judge had in fact decided the
entire controversy is misplaced.

While arriving at a conclusion as to whether the interim custody of the minor child has
to be given to the opposite party herein on an application in this behalf before the learned Judge,
the learned learned Judge has necessarily to record a finding as to why such an order granting
interim custody is required to be passed. However, the findings recorded therein is only a
tentative finding and would not in any way effect the disposal of case No. 50/70/2009 which has
to be decided by the learned Judge on the basis of the material and evidence on record and in
accordance with law."

(emphasis supplied)

3. Mr. Garg refers us to paragraph 9 in the affidavit supporting the stay application. The
paragraph is reproduced below.

"9. That thereafter the opposite party/husband filed one application u/s 26 of the Act,
1955 on 31.08.2024 against the appellant in the pending proceedings u/s 13 of the Act, 1955
seeking a direction upon the appellant to bring their minor son at Mediation Centre of the District
Court, Agra for the purpose of meeting him and also sought further direction to talk with their
minor son through video call. By the means of this application the opposite party also sought an
interim custody of their minor son. The copy of the application filed by the opposite party u/s 26 of
the Act, 1955 on 31.08.2024 at Principal Judge Family Court, Agra is being filed herewith as
Annexure no.3 to this affidavit."

(emphasis supplied)

He submits further, contact by video conferencing has already been directed by the Family
Court in the domestic violence case. His client's appeal is maintainable. He relies on sections 26
and 28(2) in Hindu Marriage Act, 1955.

4. It will be useful for us to first reproduce below sub-sections (1), (5) and (6) in section 19 of
Family Courts Act, 1984, which are relevant. "19. - (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) ......................... (3) .......................... (4) .......................... (5) Except as
aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
Family Court. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of
two or more Judges."

Also necessary is reproduction of sections 26 and 28 in Hindu Marriage Act, 1955.

"26. Custody of children.- In any proceeding under this Act, the court may, from time
to time, pass such interim orders and make such provisions in the decree as it may deem just and
proper with respect to the custody, maintenance and education of minor children, consistently
with their wishes, wherever possible, and may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions with respect to the custody,
maintenance and education of such children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still pending, and the court may also
from time to time revoke, suspend or vary any such orders and provisions previously made:

Provided that the application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the respondent.

27. ..............

28. Appeal 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 decision of the court given in exercise of its original
civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under Section 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 shall lie to the
court to which appeals ordinarily lie 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 decree or order."

(emphasis supplied)

5. We have taken note of view taken by co-ordinate Bench in Isma Alam (supra). View was
also taken on judgment dated 17th July, 2025 by another co-ordinate Bench, to which one of us
(Arindam Sinha, J) was party. It was in First Appeal no. 285 of 2025 (Dr. Prakhar Kumar vs.
Dr. Aditi Dhaundiyal). Paragraph 10 from the view is reproduced below.
2 All. The Oriental Insurance Co. Ltd. Vs. Ramchandrapal Singh & Ors.
1269

"10. Guardians and Wards Act, 1890, as aforesaid, has section 12 providing for power to
make 'interlocutory order'. Then came legislation by the Act of 1984. Parliament in the 35th year
of the Republic of India acted upon the bill bearing statement of objects and reasons saying,
inter alia, the need was, therefore, felt, in the public interest, to establish Family Courts for
speedy settlement of family disputes. By clause 2(i) in the statement of objects and reasons it was
said, the bill sought to, inter alia, provide for only one right of appeal, which shall lie to the High
Court. It was one of the objects of the bill, enacted by Parliament. Section 19 as amended stands in
the statute by the Act of 1984. To say section 12 in the Act of 1890 cannot control section 19 in the
Act of 1984 would lead to presumption that the Legislature attached different meanings for word
'interlocutory' as appearing in the Act of 1890, the Code of 1908 and the Act of 1984."

(emphasis supplied)

6. In light of above views, we need to consider section 26 and sub-section (2) in section 28,
relied upon by appellant. We do not find sub-section (2) in section 28 to be contrary to the position
of law created by enactment of Family Courts Act, 1984, subsequent also to Hindu Marriage Act,
1955. We have laid emphasis on above reproduction of the provision to demonstrate that an order
or direction made under section 26 can be appealable if they are not interim orders. Such is also the
mandate of section 19 in Family Courts Act, 1984.

7. Section 26 in the Act of 1955 empowers the Court, while dealing with any proceeding under
the Act, to from time to time pass such interim orders and make such provisions in the decree as it
may deem just and proper with respect to, inter alia, custody of children. Impugned judgment/order
is but an interim order/direction. It is not a provision made in the decree because such decree is yet
to come on adjudication of the matrimonial dispute, still pending. Where the Court passes a
judgment and there is a decree, for example, directing dissolution of the marriage and also
providing directions for custody, a party to the proceeding can choose to appeal only against the
directions for custody by virtue of section 26 and section 28(2). Such appeal would be maintainable
under section 19 in Family Courts Act, 1984.

8. Impugned judgment/order being interlocutory in nature, the appeal is not maintainable. It is
accordingly dismissed.
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(2026) 2 ILRA 1269
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal From Order No. 130 of 2026

The Oriental Insurance Co. Ltd. ...Appellant
Versus
Ramchandrapal Singh & Ors. ...Respondents