The Delhi High Court has held that grant of interim custody of a child under Section 12 of the Guardians and Wards Act, 1890 (G&W Act) is an interlocutory order and thus, no appeal would lie from the same.
The Appellant, Colonel Ramesh Pal Singh and approached the high court, appealing against the order of the Family court whereby the petition filed by Respondent herein, Sughandhi Aggarwal, under Sections 12 of the G&W Act was allowed and she was granted the interim custody of both their children.
Section 12 empowers the court to make interlocutory orders for production of minor and interim protection of person and property.
The appeal was contested by the Respondent who asserted that the impugned order was an interlocutory order and that an appeal from the same was not maintainable under the G&W Act as well as the Family Courts Act. Section 47 of the G&W Act enlist all appealable orders and Section 19 of the Family Courts Act makes it clear that no appeal lies against interlocutory orders.
The Appellant contended that an order passed under Section 12 of the G&W Act was a 'judgment' or 'order' as it finally decides the issue between the parties. Reliance was placed on Shah Babulal Khimji v. Jayaben D. Kania & Anr., AIR 1981 SC 1786, whereby the Apex Court had held that an interlocutory order could be called a 'judgement' when it has the 'trappings' of a judgment.
In this regard, the division bench of Justice G. S. Sistani and Justice Sangita Dhingra Sehgal agreed with the Respondent who had contended that the Family Courts Act was enacted after two years of the pronouncement of the Shah Babulal Khimji (Supra) case and that the legislature had 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.
The bench went on to examine the findings of different high courts on this proposition. It took note of the verdict of the Rajasthan High Court which, while dealing with a similar issue in Seema v. Sanjeev Godha, 1993 SCC Online Raj 216, had held that an order under Section 12 of G&W Act was an interlocutory order and hence an appeal from it was not maintainable. Similar observations were also made by the Allahabad High Court.
These decisions appear to find their roots from the Apex Court's decision that interlocutory orders passed under G&W Act are not amenable to appeal. (V.C. Shukla v. State through CBI, AIR 1980 SC 962)
More particularly, in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, while dealing with provisions of G&W Act, the Apex Court had observed that orders relating to custody of children are interlocutory in nature as they require modification from time to time. This case re-affirmed the position settled by the Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, wherein it said,
"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."
Accordingly, the high court dismissed the appeal and recorded,
"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."
The Appellant was represented by Advocates Nitya Ramakrishnan, Warisha Farasat, Saurabh D. Karan, Karan Singh and Kanika Jain and the Respondent by Senior Advocate Ashok Kumar Singh with Advocates Sanjeev Kumar and Ashutosh Ranjan.
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