As discussed above, the coordinate High Courts are of the view
that the plain reading of the provisions of the G & W Act reflect
that an order passed under section 12 of the said act is an
interlocutory order and hence, an appeal is barred by section 47
of the G & W Act.
26. To conclude, the Family Court Act came into force in the year
1984, i.e. 2 years after the pronouncement of Shah Babulal
Khimji (Supra) by the Apex Court. Nowhere was it intended by
the legislature to bring an appeal under Section 19(1) of the
Family Courts against an order passed under Section 12 of the
G & W Act nor does the G & W Act provide for an appeal
against order passed under Section 12 of the G & W Act.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment pronounced on: 1st October, 2019
MAT.APP.(F.C.) 211/2017 & CM APPL. 44390/2017
COLONEL RAMESH PAL SINGH Vs SUGHANDHI AGGARWAL
CORAM:
MR. JUSTICE G.S.SISTANI
MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The appellant/husband is aggrieved by the order dated
16.10.2017 passed by the Family Courts on an application filed
by the respondent/wife under Section 12 of the Guardians and
Wards Act, 1890 (hereinafter referred to as G & W Act). By way
of the impugned order the Family Courts granted the custody of
both the children to the Respondent after the completion of
current session i.e. 2017-2018 and also drew out a vacation
arrangement of summer, winter and other holidays being
Deepawali and Holi. The relevant portion of the order dated
16.10.2017 reads as under:-
“15. In the given facts and circumstances the
custody of both the kids needs to be given to the
petitioner after the final examination of both the kids
in current session 2017-2018 is over and the same is
ordered accordingly.
16. The transfer certificate and the annual
progress cards be immediately handed over by the
respondent to the petitioner on getting the same to
facilitate admission of both the kids in a school at
Delhi in the next academic session.
17. As regards the vacations falling in summer,
winters, Deepawali, Holi, the petitioner shall hand
over/ get back the custody of the kids to/from the
Respondent no.2 at her residence at Delhi for
spending 60% of the vacation by the kids with the
respondent from the date of commencement of the
vacation. The Respondent shall accordingly pick up
and drop the kids at the residence of the petitioner.
The pick up and drop off time would be 11 AM and 5
PM respectively.
18. The parties are allowed to take the kids to any
place in India or abroad during the vacation period
and otherwise but would provide their contact
number, itinerary of the programme to each other.
The petitioner will inform the respondent about the
school report, extracurricular activities of the kids by
emailing the documents. Both the parties will report
contemporaneously through email each other about
doctors attending to kids, as and when needed by the
kids.
19. For December vacation 2017 this year the
petitioner is given the custody of the kids for 60% of
the vacation mentioned from the first date of the
vacation. The respondent shall e-mail the schedule of
the school vacation to the petitioner the day the same
is received from the school. The petitioner shall pick
and drop the kids for winter vacation from Mohali.
Parties are given liberty on their own to make mutual
adjustments in period of respective share of their
vacations for the benefit of the kids.
20. For celebrating Diwali 2017 failing on
19.10.2017 the petitioner is allowed to visit the kids at
Mohali and can celebrate the festival at any place to
be decided mutually by the parties from 06.00PM to
09.00 PM. The respondent and parents of both the
parties are allowed to remain present for the Diwali
celebrations.
21. During, the custody of the kids with the
petitioner, she would allow the kids to have audio
video interaction of the kids with the respondent for
15 minutes daily between 6 PM – 8 PM. This
arrangement can be mutually changed by the parents
as per their mutual convenience and convenience of
the kids.”
2. The necessary facts to be noticed for the disposal of the present
appeal are that the marriage between the parties was solemnized
on 22.12.2002 at New Delhi in accordance with Sikh rites and
rituals. Two children namely Suhani aged 10 years and Shabad
aged 7 years were born out of the wedlock. The parties separated
in the year 2015. That on 11.08.2015, the appellant took the
children with him to Kashmir and thereafter shifted to Bikaner
alongwith his children and his mother. The Respondent preferred
a petition under section 7, 9 & 25 of the G & W Act, 1890 for the
custody of the minor children. Along with the main petition filed
under the aforesaid petition, the respondent also preferred an
application under Section 12 of the G & W Act in Delhi for the
interim custody of her children. The Appellant also filed a case
under G & W Act at Bikaner Rajasthan seeking custody of the
children. The respondent in the meanwhile moved a transfer
petition before the Supreme Court and the case at Bikaner was
transferred to Delhi. The Family Court vide order dated
16.10.2017 allowed the application for the interim custody in
Guardianship Petition No. 75/2015 and granted the interim
custody of the children to the respondent. Being aggrieved,
appellant filed the present appeal challenging the impugned order
passed by the Family Courts.
3. At the outset, Mr. Ashok Kumar Singh, Senior Advocate
appearing on behalf of the respondent argued that the present
appeal filed under Section 19 of the Family Courts Act is not
maintainable as the order under challenge is an interlocutory
order and the G & W Act as well as the Family Courts Act bars
an appeal against interlocutory orders.
4. Ms. Nitya Ramakrishnan learned counsel for the appellant
contended that the order passed by the Family Courts under
Section 12 of the G & W Act granting temporary custody of the
children to the Respondent is not an ‘interlocutory order’ but a
‘judgment’ or ‘order’ passed by the Family Courts. Learned
counsel contended that the order dated 16.10.2017 passed under
Section 12 of the G & W Act was a ‘judgment’ or ‘order’ as it
finally decides the issue between the parties. Learned counsel for
the appellant relying upon the case of Shah Babulal Khimji Vs.
Jayaben D. Kania & Anr. reported in AIR 1981 SC 1786
contended that as per the observations made by the Apex Court in
Shah Babulal Khimji (Supra) case, an interlocutory order could
be called a ‘judgement’ when it has the trapping of a judgment.
Learned Counsel laboured hard to contend that likewise an order
passed by the Family Courts under Section 24 of the Hindu
Marriage Act, which is appealable under Section 19(1) of the
Family Courts Act, an order passed under Section 12 of G & W
Act is also amenable to scrutiny under Section 19(1) of the Hindu
Marriage Act, as the issue had attained finality between the
parties. In order to fortify the arguments learned counsel further
relied on the case of Manish Aggarwal Versus Seema Aggarwal
reported in (2012) 192 DLT 714 (DB), relevant portion of which
reads as under:-
“26. We, thus, conclude as under:
i. In respect of order passed under Section 24 to 27 of
the HM Act appeals would lie under Section 19(1) of
the said Act to the Division Bench of this Court in
view of the provisions of sub-section (6) of Section
19 of the said Act, such orders being in the nature of
intermediate orders. It must be noted that subsection
(6) of Section 19 of the said Act is applicable
only in respect of sub-section (1) and not sub-section
(4) of Section 19 of the said Act.
ii. No appeal would lie under Section 19
(1) of the said Act qua proceedings under Chapter 9
of the Cr. P.C. Section 125 to 128) in view of the
mandate of sub-section (2) of Section 19 of the said
Act.
iii. The remedy of criminal revisions would be available
qua both the interim and final order under Sections
125 to 128 of the Cr. P.C. under sub-section (4) of
Section 19 of the said Act.
iv. As a measure of abundant caution we clarify that all
order as may be passed by the Family Courts in
exercise of its jurisdiction under Section 7 of the
said Act, which have a character of an intermediate
order, and are not merely interlocutory orders,
would be amenable to the appellate jurisdiction
under sub-section (1) of Section 19 of the said Act.”
5. On the contrary, Mr. Ashok Kumar Singh, Senior Advocate
appearing on behalf of the Respondent raised four contentions:-
(a) That the present appeal is not maintainable, as the
order dated 16.10.2017 passed by the Family Courts
under Section 12 of the G & W Act is an ‘interlocutory
order’ and Section 47 of the G & W Act does not
provide for filing an appeal against an order passed
under Section 12 of the G & W Act.
(b) That Section 7 (g) of the Family Courts Act gives
power to the Family Courts to adjudicate a proceeding
in relation to the custody of children, however, Section
19(1) of the Family Courts Act specifically debars an
appeal against an interlocutory order.
(c) That the Family Courts Act was enacted after two years
of the pronouncement of the Shah Babulal Khimji
(Supra) case, which makes it clear that the legislature
has intentionally barred an appeal under Section 19(1)
of the Family Courts Act from an order passed under
Section 12 of the G & W Act.
(d) That the Division Bench of this Court in the case of
Manish Aggarwal (Supra) had specifically considered
the case of Shah Babulal Khimji (Supra) and held that
an order passed under Section 125 of the Code of
Criminal Procedure is an interlocutory order and an
appeal under Section 19(1) of the Family Courts Act is
not maintainable. That in Manish Aggarwal (Supra)
case maintainability of an appeal under Section 19(1)
of the Family Courts Act from an order passed under
Section 12 of the G & W Act was not at all considered
and discussions were with regard to Section 126 Cr.
P.C. and Sections 24 to 26 of the Hindu Marriage Act.
In order to support his contentions learned Senior
Counsel for the Respondent relied on the case of
Dhanwanti Joshi Vs. Madhav Unde reported in (1998)
1 SCC 112, Rosy Jacob Vs. Jacob A. Chakramakkal
reported in (1973) 1 SCC 840, Vikram Vir Bohra Vs.
Shalini Bhalla reported in (2010) 4 SCC 409, Swarna
Prava Tripathy and Anr. vs. Dibyasingha Tripathy
and Anr. reported in 1998 SCC Online Ori 56 and
Smt. Usha Kumari vs. Principal Judge, Family Court
and Ors. reported in AIR 1998 Pat 50.
6. We have heard learned counsel for the parties on the
maintainability of the present appeal and have also perused the
available records.
7. In order to decide the issue under consideration, we deem it
appropriate to reproduce Section 12 of the G & W Act, 1890
which reads as under:-
“12. Power to make interlocutory order for
production of minor and interim protection of person
and property.—
(1) The Court may direct that the person, if any, having
the custody of the minor, shall produce him or cause
him to be produced at such place and time and before
such person as it appoints, and may make such order
for the temporary custody and protection of the person
or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be
compelled to appear in public, the direction under subsection
(1) for her production shall require her to be
produced in accordance with the customs and manners
of the country.
(3) Nothing in this section shall authorise—
(a) the Court to place a female minor in the temporary
custody of a person claiming to be her guardian on the
ground of his being her husband, unless she is already
in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and
protection of the property of a minor is entrusted to
dispossess otherwise than by due course of law any
person in possession of any of the property.”
8. Section 47 of the G & W Act, 1890 provides for orders which are
appealable before this Court which reads as under:-
“47. Orders appealable.—An appeal shall lie to the
High Court from an order made by a 1[***] Court,—
(a) under section 7, appointing or declaring or
refusing to appoint or declare a guardian; or
(b) under section 9, sub-section (3), returning
an application; or
(c) under section 25, making or refusing to
make an order for the return of a ward to the
custody of his guardian; or
(d) under section 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) under section 28 or section 29, refusing
permission to a guardian to do an act referred
to in the section; or
(f) under section 32, defining, restricting or
extending the powers of a guardian; or
(g) under section 39, removing a guardian; or
(h) under section 40, refusing to discharge a
guardian; or
(i) under section 43, regulating the conduct or
proceedings of a guardian or settling a matter
in difference between joint guardians or
enforcing the order; or
(j) under section 44 or section 45, imposing a
penalty.”
9. A bare reading of the above provisions would manifest that the
principle enshrined under Section 12 of the G & W Act provides
for power to make interlocutory orders for production of a minor
child, interim protection of the child and his property and
empower the court to handover temporary custody as well
modify or vary any such orders required due to changed
conditions and circumstances. Section 47 bars an appeal against
an order passed under Section 12 of the G & W Act.
10. Section 7 of the Family Courts Act, 1984 reads as under:-
“7. Jurisdiction.-(1) Subject to the other provisions of
this Act, a Family Courts shall- -(1) Subject to the
other provisions of this Act, a Family Courts shall-"
(a) have and exercise all the jurisdiction exercisable
by any district court or any subordinate civil court
under any law for the time being in force in respect of
suits and proceedings of the nature referred to in the
explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or,
as the case may be, such subordinate civil court for
the area to which the jurisdiction of the Family
Courts extends. Explanation.-The suits and
proceedings referred to in this sub-section are suits
and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to
a marriage for a decree of nullity of marriage
(declaring the marriage to be null and void
or, as the case may be, annulling the
marriage) or restitution of conjugal rights or
judicial separation or dissolution of
marriage;
(b) a suit or proceeding for a declaration as
to the validity of a marriage or as to the
matrimonial status of any person;
(c) a suit or proceeding between the parties to
a marriage with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for an order or
injunction in circumstances arising out of a
marital relationship;
(e) a suit or proceeding for a declaration as to
the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the
guardianship of the person or the custody of,
or access to, any minor.
(2) Subject to the other provisions of this Act, a
Family Courts shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate
of the First Class under Chapter IX (relating to
order for maintenance of wife, children and
parents) of the Code of Criminal Procedure,
1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred
on it by any other enactment.”
11. Section 19 (1) and (2) of the Family Courts Act, 1894 reads as
under:-
“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 Courts
to the High Court both on facts and on law. -(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 Courts to
the High Court both on facts and on law."
(2) No appeal shall lie from a decree or order passed
by the Family Courts with the consent of the parties
1[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].”
12. In Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161, the
Apex Court while considering the scope of Section 7 of the
Family Courts Act observed that the Family Courts Act has an
overriding effect. A plain reading of sub section (1) of Section
19 makes it clear that no appeal lies against interlocutory orders
passed under the Family Courts Act.
13. The scope of ‘Judgment’ and ‘interlocutory order’ has been
distinguished time and again by the Apex Court and this Court in
various judgments. In Shah Babulal Khimji Vs. Jayaben D.
Kania & Anr., AIR 1981 SC 1786 the Hon’ble Supreme Court
discussed the scope of ‘interlocutory order’ and the expression
‘judgment’ which was assigned a wider meaning and has
extended the scope of right of appeal where the characteristics
and trappings of the finality of the issue is available. The relevant
paras 113-115 reads as under:-
“113. Thus, under the Code of Civil Procedure, a
judgment consists of the reasons and grounds for a
decree passed by a court. As a judgment constitutes
the reasons for the decree it follows as a matter of
course that the judgment must be a formal
adjudication which conclusively determines the rights
of the parties with regard to all or any of the matters
in controversy.The concept of a judgment as defined
by the Code of Civil Procedure seems to be rather
narrow and the limitations engrafted by sub-section
(2) of Section 2 cannot be physically imported into the
definition of the word “judgment” as used in clause
15 of the letters patent because the letters patent has
advisedly not used the terms “order” or “decree”
anywhere. The intention, therefore, of the givers of the
letters patent was that the word “judgment” should
receive a much wider and more liberal interpretation
than the word “judgment” used in the Code of Civil
Procedure. At the same time, it cannot be said that
any order passed by a trial Judge would amount to a
judgment; otherwise there will be no end to the
number of orders which would be appealable under
the letters patent. It seems to us that the word
“judgment” has undoubtedly a concept of finality in a
broader and not a narrower sense. In other words, a
judgment can be of three kinds:
(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 Section 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 effect on the party concerned must be
direct and immediate rather than indirect or remote.
For instance, where the trial Judge in a suit under
Order 37 of the Code of Civil Procedure refuses the
defendant leave to defend the suit, the order directly
affects the defendant because he loses a valuable right
to defend the suit and his remedy is confined only to
contest the plaintiff's case on his own evidence
without being given a chance to rebut that evidence.
As such an order vitally affects a valuable right of the
defendant it will undoubtedly be treated as a judgment
within the meaning of the letters patent so as to be
appealable to a larger Bench. Take the converse case
in a similar suit where the trial Judge allows the
defendant to defend the suit in which case although
the plaintiff is adversely affected but the damage or
prejudice caused to him is not direct or immediate but
of a minimal nature and rather too remote because
the plaintiff still possesses his full right to show that
the defence is false and succeed in the suit. Thus, such
an order passed by the trial Judge would not amount
to a judgment within the meaning of clause 15 of the
letters patent but will be purely an interlocutory
order. Similarly, suppose the trial Judge passes an
order setting aside an ex parte decree against the
defendant, which is not appealable under any of the
clauses of Order 43 Rule 1 though an order rejecting
an application to set aside the decree passed ex parte
falls within Order 43 Rule 1 clause (d) and is
appealable, the serious question that arises is whether
or not the order first mentioned is a judgment within
the meaning of letters patent. The fact, however,
remains that the order setting aside the ex parte
decree puts the defendant to a great advantage and
works serious injustice to the plaintiff because as a
consequence of the order, the plaintiff has now to
contest the suit and is deprived of the fruits of the
decree passed in his favour. In these circumstances,
therefore, the order passed by the trial Judge setting
aside the ex parte decree vitally affects the valuable
rights of the plaintiff and hence amounts to an
interlocutory judgment and is therefore, appealable to
a larger Bench.”
114. In the course of the trial, the trial Judge may
pass a number of orders whereby some of the various
steps to be taken by the parties in prosecution of the
suit may be of a routine nature while other orders
may cause some inconvenience to one party or the
other, e.g., an order refusing an adjournment, an
order refusing to summon an additional witness or
documents, an order refusing to condone delay in
filing documents, after the first date of hearing an
order of costs to one of the parties for its default or an
order exercising discretion in respect of a procedural
matter against one party or the other. Such orders are
purely interlocutory and cannot constitute judgments
because it will always be open to the aggrieved party
to make a grievance of the order passed against the
party concerned in the appeal against the final
judgment passed by the trial Judge.
115. Thus, in other words every interlocutory order
cannot be regarded as a judgment but only those
orders would be judgments which decide matters of
moment or affect vital and valuable rights of the
parties and which work serious injustice to the party
concerned. Similarly, orders passed by the trial Judge
deciding question of admissibility or relevancy of a
document also cannot be treated as judgments
because the grievance on this score can be corrected
by the appellate court in appeal against the final
judgment.”
14. The scope of an order passed by the Family Courts on an
application under Section 24 of the Hindu Marriage Act which is
appealable under Section 19 (1) of the Family Courts Act, in
terms of an order passed by the Apex Court in Shah Babulal
Khimji (Supra) has been dealt by the Division Bench of this
Court in the case of Manish Aggarwal vs. Seema Aggarwal
reported in (2012) 192 DLT 714 (DB). In Manish Aggarwal
(Supra) case the Division Bench of this Court while examining
the applicability of dicta laid down in Shah Babulal Khimji
(Supra) case, in determining whether an appeal would lie under
Section 19 (1) of the Family Courts Act qua proceedings under
Chapter 9 of the Cr. P.C (Sections 125 to 128), has observed that
in respect of order passed under Section 24 to 27 of the Hindu
Marriage Act an appeal would lie under Section 19 (1) of the
Family Courts Act, in terms of the provisions of sub section (6)
of Section 19 of the Family Courts Act being intermediate orders,
however declined to apply the principles of Shah Babulal Khimji
(Supra) case in relation to proceedings qua Chapter 9 of the Cr.
P.C (Sections 125 to 128).
15. In Manish Aggarwal case (supra), the Division Bench of this
Court has adopted the principles laid down in the Shah Babulal
Khimji (Supra) case as far as Section 24 of the HM Act is
concerned but declined to extend the scope of Section 19(1) of
the Family Courts Act in relation to appeal against orders under
Section 125 Cr. P.C. The relevant observations of the Division
bench is as under:-
“24. We have to also proceed to discuss not only the
consequences of the aforesaid intermediate orders, but
also orders which may be passed under Chapter 9 of
the Cr.P.C. While specifically excluding from the ambit
of appeal orders passed under Chapter 9 of the Cr.P.C.
(Sections 125 to 128) as per sub-section (2) of Section
19 of the said Act, the remedy against such orders has
been specifically provided thereafter under sub-section
(4) of Section 19 of the said Act and, thus, clearly a
criminal revision would be maintainable. However,
there is an exception under sub-section (4) of Section
19 of the said Act in as much, as, interlocutory orders
specifically stand excluded from the ambit of revision.
We may also add here that sub-section (5) of Section
19 of the said Act clearly bars any appeal or revision
against an order of the Family Courts unless
specifically provided for under Section 19 of the said
Act. We have to, thus, examine as to what would be the
meaning of the expression interlocutory order in this
context. There can be procedural orders passed,
against which no revision would be maintainable. The
analogy may be taken from the discussion qua the
provision of Section 397 (2) of the Cr.P.C. in Aakansha
Shrivastava case (supra) which in turn had relied upon
the judgement of the Supreme Court in Amarnath &
Ors. case (supra). These procedural orders, thus,
would undoubtedly be interlocutory in nature. The
issue arises from the second proviso to sub-section (1)
of Section 125 Cr.P.C. which provides for grant of
interim maintenance, i.e., whether criminal revision
would be maintainable qua such determination. Once
again, the same principle would apply, as qua
determination of interim maintenance under Section 24
of the HM Act, since the nature of the order is such
that it would be really an intermediate order affecting
the vital rights of the parties. It can even result in
consequence of civil imprisonment for violation. Thus,
both kinds of orders under Section 125 Cr.P.C., i.e.,
interim maintenance and the final order would be
amenable to the revisional jurisdiction.”
16. We tend to rely on the decision rendered by the Division bench
of this Court in Manish Aggarwal (Supra) case as far as nonapplicability
of Shah Babulal Khimji (Supra) case is concerned
wherein the expression ‘judgment’ was assigned a wider meaning
and has extended the scope of right to appeal where the
characteristics and trappings of the finality of the issue is
available.
17. The Apex Court while dealing with provisions of G & W Act,
1890 in the case of Dhanwanti Joshi Vs. Madhav Unde reported
in (1998) 1 SCC 112 has observed that orders relating to custody
of children are interlocutory in nature as they require
modification from time to time. Relevant portion reads as
under:-
“21. It is no doubt true that orders relating to custody
of children are by their very nature not final, but are
interlocutory in nature and subject to modification at
any future time upon proof of change of
circumstances requiring change of custody but such
change in custody must be proved to be in the
paramount interests of the child (Rosy Jacob v. Jacob
A. Chakramakkal [(1973) 1 SCC 840] ). However, we
may state that in respect of orders as to custody
already passed in favour of the appellant the doctrine
of res judicata applies and the Family Courts in the
present proceedings cannot re-examine the facts
which were formerly adjudicated between the parties
on the issue of custody or are deemed to have been
adjudicated. There must be proof of substantial
change in the circumstances presenting a new case
before the court. It must be established that the
previous arrangement was not conducive to the child's
welfare or that it has produced unsatisfactory results.
Ormerod, L.J. pointed out in S v. W [(1981) 11 Fam
Law 81] [Fam Law at p. 82 (CA)] that
‘the status quo argument depends for its strength
wholly and entirely on whether the status quo is
satisfactory or not. The more satisfactory the status
quo, the stronger the argument for not interfering.
The less satisfactory the status quo, the less one
requires before deciding to change”.
18. Similar observations have been made by the Apex Court in the
case of Rosy Jacob Vs. Jacob A. Chakramakkal reported in
(1973) 1 SCC 840 which reads as under:-
“18. The appellant's argument based on estoppel and
on the orders made by the court under the Indian
Divorce Act with respect to the custody of the children
did not appeal to us. All orders relating to the custody
of the minor wards from their very nature must be
considered to be temporary orders made in the
existing circumstances. With the changed conditions
and circumstances, including the passage of time, the
Court is entitled to vary such orders if such variation
is considered to be in the interest of the welfare of the
wards. It is unnecessary to refer to some of the
decided cases relating to estoppel based on consent
decrees, cited at the bar. Orders relating to custody of
wards even when based on consent are liable to be
varied by the Court, if the welfare of the wards
demands variation.”
19. In case of Vikram Vir Bohra Vs. Shalini Bhalla reported in
2010 4 SCC 409 the Apex Court observed as under:-
“12. In a matter relating to the custody of a child, this
Court must remember that it is dealing with a very
sensitive issue in considering the nature of care and
affection that a child requires in the growing stages of
his or her life. That is why custody orders are always
considered interlocutory orders and by the nature of
such proceedings custody orders cannot be made
rigid and final. They are capable of being altered and
moulded keeping in mind the needs of the child.”
20. Further in the case of R.V. Srinath Prasad v. Nandamuri
Jayakrishna & Others, AIR 2001 SC 1056, the Supreme Court
has observed that orders of custody can never be final.
21. Having being discussed the dicta as to the nature of orders passed
for the custody of children under the provisions of the G & W
Act in general, it is pertinent to refer to the findings and views of
the coordinate benches of the various High Courts.
22. In Seema vs. Sanjeev Godha reported in 1993 SCC Online Raj
216, the Hon’ble Rajasthan High Court while dealing with the a
similar issue in hand as to whether order passed under Section 12
of the G & W Act has held that the order is an interlocutory order
and hence an appeal is not maintainable. The relevant portion has
been reproduced as under:
7. An application under Section 7 of the Act of 1890
has been filed and during the pendency of that
application, under Section 12 of that Act an
application, for interim custody of the minor child
was filed. A bare reading of Sub-section (1) of Section
12 of the Act of 1890 will show that the Court is
empowered to make an interim order for protection of
the person or property of the minor. It will be seen
that under Section 12 more than one order for
temporary custody and protection of person and
property can be made. Though, we are dealing with
an appeal under Section 19(1) of the Act, but even
under Section 47 of the Act of 1890 which deals with
orders appealable, an order under Section 12 for
temporary custody and protection of the person of the
minor has not been made appealable. Before coming
into force of the Act a revision might have been
maintained and perhaps was maintainable but the
matters of custody of minor haying come under
exclusive jurisdiction of the Family Courts under the
Act, it is the Act which will apply and therefore, we
are of the opinion that so far as the order of the Court
relating to temporary custody under Section 12 of the
1890 Act pending the application under Section 7 of
that Act is concerned, it is an 'interlocutory order' and
an appeal under Section 19(1) of the Act will not be
maintainable. But during the course of arguments we
had put to the learned Counsel for the parties the
question whether or not in a given case if the order of
the Family Court is such which is perverse and is one
which could not have been made under the provisions
of law and an appeal does not lie under Section 19(1)
of the Act because the said order is 'Interlocutory
order' whether this Court can exercise its power
under Article 226 or 227 of the Constitution of India,
Learned Counsel for the respondent could not satisfy
us that this power could not be exercised. We are of
the opinion that Article 227 of the Constitution of
India confers power on this Court of superintendence
over all Courts and Tribunals through the territory of
Rajasthan and in exercise of those powers, which
powers have no doubt to be exercised most sparingly
only in cases where grave injustice would be done
unless this Court can quash thee order of the
Tribunal. The said power under Article 227 of the
Constitution being discretionary it is for the Court to
exercise the discretion and no party can claim the
exercise of such power as of right.
23. In Varsha Lakhmani vs. Hitesh Wadhva reported in 2008 (71)
ALR 665 the Allahabad High Court while taking into
consideration the judgment of Shah Babulal Khimji (supra) has
held as under:
12. 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 cannot
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 under Section 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.
13. 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.
24. Further, another bench of the Hon’ble Allahabad High Court
while dealing with the scope of appeal in case of order passed
under Section 12 of the G & W Act in Isma Alam vs. Irshad
Alam bearing number First Appeal No. 495 of 2010 has
extensively discussed the applicability of various Apex Court
Judgments in relation to the G & W Act including Amarnath vs.
State of Haryana reported in AIR 1977 SC 2185 and V.C.
Shukla vs. State through C.B.I. reported in AIR 1980 SC 962
and has held that interlocutory orders passed under G & W Act
were not amenable to appeal. The relevant portion of the
aforesaid judgment has been reproduced as under:
27. It has further held that "in our considered opinion
the connotation 'interlocutory order' used under Subsection
(1) of Section 19 of Family Courts Act means if
Family Court in exercising its power passed an order in
a way allowing further action to continue in a suit or
proceeding before it then such order would be termed
as 'interlocutory order' but on the other hand if by a
order passed by Family Court the lis between the
parties is finally stood disposed of and nothing is left to
be decided further such orders would be termed as
'final order' and would be appealable under Subsection
(1) of Section 19 of said Act".
28. 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.
29. 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 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.
30. In view of the foregoing discussions, we are of the
considered opinion that the present appeal filed under
Section 19 of the Act of 1984 is not maintainable. As we
have come to the conclusion that the appeal itself is not
maintainable, we are not entering into the merits of the
controversy.
31. The appeal is, therefore, dismissed as not
maintainable.
25. As discussed above, the coordinate High Courts are of the view
that the plain reading of the provisions of the G & W Act reflect
that an order passed under section 12 of the said act is an
interlocutory order and hence, an appeal is barred by section 47
of the G & W Act.
26. To conclude, the Family Court Act came into force in the year
1984, i.e. 2 years after the pronouncement of Shah Babulal
Khimji (Supra) by the Apex Court. Nowhere was it intended by
the legislature to bring an appeal under Section 19(1) of the
Family Courts against an order passed under Section 12 of the
G & W Act nor does the G & W Act provide for an appeal
against order passed under Section 12 of the G & W Act.
27. Coming to the facts of the case in hand, the impugned order dated
16.10.2017 relates to an application which was brought under
Section 12 of the G & W Act. Through this order the custody of
both the children was handed to the respondent. It is pertinent to
mention that while the proceedings before the Family Courts
were pending, the impugned order dated 16.10.2017 was passed,
which is yet pending disposal. To our mind, the order under
challenge is nothing but an interlocutory order and as per the
settled preposition of law no appeal would lie against the order
dated 16.10.2017 passed under Section 12 of the G & W Act
being barred under Section 19(1) of the Family Courts Act.
28. Therefore, keeping in view the law discussed above as well as the
relevant provisions discussed above, the present appeal is
dismissed, being not maintainable. Liberty is granted to the
appellant, take appropriate recourse in accordance with law.
29. However, taking into account the litigation pending between the
parties, the family Court is directed to dispose of the custody
petition as expeditiously as possible.
CM APPL. 44390/2017 (Stay)
30. In view of the reasons stated above, the interim orders granted
vide order dated 20.03.2018 stands vacated. Application is
accordingly dismissed.
SANGITA DHINGRA SEHGAL, J
G.S. SISTANI, J
OCTOBER 1, 2019
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