Orders Passed U/S 12 Of Guardians And Wards Act Appealable U/S 19 Of Family Courts Act: Delhi High Court

A full bench of Delhi High Court on Wednesday ruled that the orders passed under Section 12 of the Guardians and Wards Act would be appealable under Section 19 of the Family Courts Act.

Section 12 of Guardians and Wards Act gives power to the Family Court to pass interlocutory order for production of minor and interim protection of person and property.

Section 19 of Family Courts Act states that appeals can be made from any judgment or order of a Family Court to the High Court , except for interlocutory orders.

The full bench comprising of Justice Rekha Palli, Justice Jasmeet Singh and Justice Amit Bansal was answering a reference in a minor custody case. The question before the full bench was whether an order passed under Section 12 of the GW Act would be appealable under Section 19 of the FC Act?

While answering the reference, the Bench noted that the FC Act bestows the Family Courts with “multifarious jurisdictions” arising out of marriage and family affairs and was clearly intended to consolidate the jurisdictions which were available with different Courts or Tribunals under the relevant statutes in one specialised Court being the Family Court.

“It is, for this reason, that while introducing one single appellate provision under the FC Act, a non-obstante clause has been used to avoid the confusion which was earlier arising from multiple appellate provisions spread over various pre- existing statutes,” the court said.

It added that while enacting the FC Act, the legislature had consciously introduced a provision providing for appeals to the High Court against orders passed under different statutes relating to marriage and family affairs.

“The purpose of this appellate provision by way of Section 19 (1) of the FC Act was, therefore, meant to provide for an appeal against all orders passed by the learned Family Court, irrespective of the fact as to whether the said order is appealable or not under the parent statute, the only rider being that the order should not be an interlocutory order,” the bench said.

It added that once the provisions of the FC Act clearly indicate that the enactment will have an overriding effect on all other statutes relating to marital and family matters, the effect and ambit of the provisions of the FC Act, including that of the appellate provision under Section 19 (1), which conceptualises a common appellate forum, cannot be controlled by the provisions of the parent statute, including the GW Act.

“We are, therefore, in agreement with the learned Amicus Curaie as also the appellant, that the provisions of the GW Act could not curtail the right of appeal available to the appellant under Section 19 of the FC Act,” the court said.

Furthermore, the bench ruled that the description of an order as an interlocutory order under the GW Act, cannot be a ground to treat the said order as an interlocutory order for the purposes of the FC Act.

“Merely because an order, despite affecting the vital rights of the parties, is labelled as an interlocutory order under a particular statute, cannot imply that the same must always be treated as an interlocutory order,” it held.

The bench also ruled that only those orders which are merely procedural and do not have trappings of finality can be treated as interlocutory orders and would not be amenable to appeal under the FC Act.

“The mere fact that an order under Section 12 of the GW Act has been labelled as an interlocutory order under the said Act, cannot, therefore, be a ground to hold the same as an interlocutory order under the FC Act, which Act was enacted 94 years later and was intended to provide a much wider window for appeal,” the court said.

It added that in every case, when an order passed by the Family Court is taken in appeal before the High Court, it would be incumbent upon the Court to examine the nature of the impugned order in its entirety to determine whether the same is in the nature of an adjudicatory order which decides valuable rights of the parties.

“Whenever the Court finds that an order touches upon the vital rights of the parties in contradistinction to an order which is merely a procedural order, an appeal ought to be entertained, irrespective of the fact that the order was passed during the pendency of the proceedings before the learned Family Court,” the court said.

Advocate Prosenjeet Banerjee appeared as Amicus Curiae in the matter.

Title: X v. Y

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