Are Orders U/S 12 Of Guardians & Wards Act Appealable U/S 19 Of Family Courts Act? Delhi HC Refers Question To Larger Bench

The Delhi High Court has referred to the larger bench the question as to whether an order passed under Section 12 of the Guardians and Wards Act, or any order dealing with aspects of visitation and custody during the pendency of proceedings, would be appealable under Section 19(1) of the Family Courts Act.

Justice Vipin Sanghi and Justice Jasmeet Singh was of the view that the decision of the coordinate bench in Colonel Ramesh Pal Singh v. Sugandhi Aggarwal, holding that an order under Section 12 of GWA is an interlocutory order an hence non-appealable, requires re-consideration.

"We, therefore, refer the issue raised by the respondent in the present application by placing reliance on Ramesh Pal Singh (supra) to a Larger Bench. Let the matter be placed before Honourable the Chief Justice for constitution of a Larger Bench for consideration of the aforesaid aspects," the bench said.

The Court was dealing with an appeal preferred by the respondent father in the matrimonial matter directed against a Family Court's order passed on an application moved by him seeking temporary custody of his minor girl child.

When the same was granted, the child's mother (Petitioner herein) preferred an appeal before the High Court. 

According to the respondent, the appeal is not maintainable under Section 19 of the Family Courts Act. Reliance was placed on Ramesh Pal Singh judgment wherein a coordinate bench had concluded that an appeal under Section 19 of the Family Courts Act would not lie against an order passed under Section 12 of the Guardians and Wards Act, on the premise that the same is an interlocutory order.

It was also submitted that the impugned order was in the nature of an "interlocutory order", since it was not final and that no order was passed by the Family Court on aspects of maintenance, or guardianship, or visitation in respect of minor child that can be considered as final for the reason of always being open to challenge or modification.

"With the utmost respect, we find difficulty in accepting the ratio laid down in the said decision – to the effect that an order passed under Section 12 of the Guardians and Wards Act, or any order of the nature that we are concerned with – which purports to deal with aspects of visitation and custody during the pendency of proceedings, would not be appealable before the Division Bench of this Court under Section 19(1) of the Family Courts Act because the same is an interlocutory order," the Court said.

At the outset, the Court observed that an order which deals with aspects of interim, or call it interlocutory – custody or visitation, is an order which impinges on the aspect of the rights and welfare of the minor child in respect of whom the order is passed.

"The High Court, in all cases where the parents are at logger heads and there is a tug of war going on with regard to the custody of the minor child, acts as the parens patriae and exercises its jurisdiction keeping the welfare of the minor child paramount. An order granting/ refusing visitation or interim custody in respect of the minor child would, in our view, be like a final judgement inasmuch, as, it impacts the day to day existence of the child till it remains in force and is implemented, and it may have serious, lasting and irretrievable consequences for the child i.e. on the child's psychological health, as well as physical wellbeing," it added.

The Court was therefore of the view that an order dealing with the aspects of visitation or interim custody of a minor child, cannot be labelled as an interlocutory order which does not have the trappings of a final judgement and is not a procedural order.

"If it is treated as an order against which no appeal is maintainable – by terming it as a routine "interlocutory order", it may deprive the aggrieved party – and the minor child concerned, of a valuable right to appeal before the Appellate Court to seek correction of the order passed by the Family Court. What will the aggrieved party argue at a later stage – when appealing against the final judgment before the High Court under Section 19 of the Family courts Act? – that the "interlocutory order" granting/refusing visitation/ interim custody was wrong and unjustified and it has done much harm to the minor child! That may turn out to be an academic exercise, and nothing more," the Court said while referring the matter to larger bench.

Case Title: DR GEETANJALI AGGARWAL v. DR MANOJ AGGARWAL

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