Orders In Child Custody Matters Interlocutory Not Interim If Rights Of Parents Not Finalised: Gujarat High Court

The division bench of Justices Ashutosh Shastri and Divyesh A. Joshi highlighted that an interlocutory order does not terminate the proceedings or finally decide the rights of the parties and concluded that the rights regarding the return of the child's custody were not finally decided by the impugned order.

"We are of the clear opinion that so long as the relief of seeking return of the child is not finally decided by virtue of impugned order, same cannot be said to be an interim order, but is merely an interlocutory order since said impugned order is neither finally deciding the right of the applicant about custody nor terminating the main application. Since that be the situation, it is not possible for us to construe the impugned order as not an interlocutory order." 

The observations were made in an appeal filed under Section 96 of CPC and Section 19 of the Family Courts Act, whereby the appellant challenged the validity of an order passed by the Principal Family Court.

The appellant and the respondent got married in 2014 and were blessed with a son in 2018. Over time, disagreements arose between them and the respondent-wife left the matrimonial home allegedly without justification.

Following her departure, their son remained with the appellant-husband who shouldered the responsibilities for their son's well-being, academic commitments, and transportation as the sole caregiver.

Subsequently, they made an arrangement for their son to spend weekends with the respondent at her residence so the child's academic schedule was not disrupted.

During winter vacation, the respondent requested that the appellant allow their son to stay with her. Trusting the respondent's intentions, the appellant delivered their son to the respondent's residence.

However, when the appellant later contacted his wife to arrange for their son's return, the respondent expressed her unwillingness to reunite their son with the appellant.

Aggrieved by this, the appellant filed an application seeking custody of their minor son under Sections 7, 17, and 25 of the Guardians and Wards Act, in conjunction with Section 13 of the Hindu Minority and Guardianship Act and Section 7 of the Family Courts Act. Additionally, an application for interim and temporary injunction was also submitted.

The appellant submitted that he received a notice from the Family Court in Anand, notifying him of an application filed by the respondent-wife under Section 7 of the Guardians and Wards Act. Although referred for mediation, it proved unsuccessful and was thus returned to the Family Court.

Subsequently, the parties jointly proposed an arrangement for the custody of their minor son according to which he would stay with the wife from Monday to Friday, and with the appellant during the weekends.

They followed this arrangement throughout the proceedings until the hearing of interim and temporary injunction applications.

However, the appellant contends that the Principal Family Judge went beyond the scope of the application in its decision. Aggrieved by this alleged deviation, the appellant moved the appeal.

The primary issue before the Court revolved around determining whether the impugned order should be categorized as interlocutory or interim and, consequently, whether it was subject to Section 96 of CPC or Section 19 of the Family Courts Act for the filing of a First Appeal.

The Court referred to a series of precedents to clarify the distinction between interim and interlocutory orders, which had already addressed this matter.

It considered the prayers made in the primary application, which were aimed at regaining custody of the son, declaring that the opponent could not take the child out of the Court's jurisdiction without permission, and permanently restrain the opponent from such actions.

However, in a related application, a request was made to instruct the opponent to return the custody of the son to the applicant. Meanwhile, during the pendency and final disposition of the application, the applicant sought unrestricted visitation rights with the minor son.

Thus, the Court found that the relief sought in the primary application was focused on regaining custody of the child and imposing restrictions on the opponent's actions within the Court's jurisdiction. Conversely, the interim prayer in the related application concerned temporary measures related to child custody and visitation rights.

Given that the order did not conclusively decide the issue of child custody, the Court concluded that it was not an interim order but rather an interlocutory order. Therefore, the order did not qualify for a First Appeal.

"It appears that this order which has been passed, impugned in the appeal, is not finally deciding the issue in respect of visitation rights or custody of child." 

It was observed that an interlocutory order only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial or main application, which does not however conclude the main controversy itself and as such, if the term interlocutory order if interpreted in its logical and natural sense, same would not decide finality of issue. 

The Court underscored the legislative intent behind the Family Courts Act of 1984, emphasizing its purpose to expedite the resolution of family disputes and protect the rights involved. It also noted that Section 19 of the Act clearly stated that no appeal could be filed against an interlocutory order, even prohibiting revisions of such orders.

“At this stage, we may observe that decision delivered by the Coordinate bench is no-doubt binding but if the facts situation are altogether different and Court with above observation has treated that order passed in that proceeding was finally deciding the rights and hence in a different situation prevailing on this case, we are unable to apply said observations as a straitjacket formula without ignoring different facts situation,” the Court concluded while dismissing the First Appeal as being not maintainable.

The appeal was accordingly disposed of. 

Appearance: Mr Jal Unwala, Senior Advocate With Ms Tejal A Vashi for appellant no. 1, Mr Nirav C Thakkar For Mr Bhavin J Satwara for defendant no. 1

LL Citation: 2023 LiveLaw (Guj) 155

Case Title: Rajan Ankleshwaria v. Vinni Ankleshwaria 

Case No: R/First Appeal No. 3311 Of 2023

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