CAV Judgment

1. Heard learned counsel of both the parties.

2. At the very outset, learned counsel appearing on behalf of the respondent has raised a preliminary objection to the maintainability of the present Civil Miscellaneous Application, contending that no such Civil Miscellaneous Application can lie against an order passed under Section 12 of the Guardians and Wards Act. It was submitted that the proper remedy is to file an appeal under Section 19 of the Family Courts Act, 1984.

3. In order to buttress his argument, learned counsel appearing on behalf of the respondent has placed reliance on the judgment passed in the case of Dr. Geetanjali Aggarwal vs. Dr. Manoj Aggarwal, reported in (2024) 4 High Court Cased (Del) 451 : 2024 SCC Online Del 7220.

4. Per contra, learned counsel appearing on behalf of the petitioner submits that the present Civil Miscellaneous Application is maintainable against the aforesaid order, as the nature of the impugned order is purely interlocutory.

5. Before adverting to the factual aspects of the matter, it is important to reproduce Section 12 and other provisions of Guardians and Wards Act, under which the Impugned Order has been passed.

          "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 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 sub-section (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."

6. As per the objection raised by learned counsel for the respondent, the said impugned order, having been passed by the Family Court, is appealable. Further, under Section 47 of the Guardians and Wards Act, 1890, the orders which are appealable have been specifically enumerated, as under:--

          " 47. Orders appealable - An appeal shall lie to the High Court from an order may be a 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."

7. In Family Court Act, 1984 also there is statutory provision regarding jurisdiction of the Court and appeal u/s 07 and 19 respectively, which are as follows :-

          " 7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court 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 Court extends.

          Explanation. - The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely: -

          (a) ..............

          (b) .............

          (c) ............

          (d) .........

          (e)...........

          (f) ...............

          (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 Court shall also have and exercise –

          (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX 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."

          "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 Court to the High Court both on facts and on law.

          (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 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 by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before the commencement of the Family Courts (Amendment) Act, 1991.

          (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

          (4) The High Court may, on its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.

          (5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

          (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges"

8. On the anvil of the aforesaid specific statutory provision pertaining to appeal i.e. Section 47 of Guardians and Wards Act as well as Section 19 of Family Courts Act, when I examine the Impugned Order, it transpires that Section 12 itself speaks about making Interlocutory order for production of minor and interim protection of person and property. The title of Section 12 itself shows that this Section does not empower the Court to make any final order rather under this provision, the Court has power to make interlocutory order within the ambit of Section 12. With regard to production of minor and interim protection of person and property, Court cannot pass any final order u/s 12 of Guardians and Wards Act, rather there is specific provision for making order as to the guardianship u/s 7 of Guardians and Wards Act. Section 7 reads as follows:-

          " Power of the Court to make order as to guardianship. –

          (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made –

          (a) appointing a guardian of his person or property, or both, or

          (b) declaring a person to be such a guardian, the Court may make an order accordingly.

          (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

          (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court under this Section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act."

9. Furthermore, I have quoted herein above various orders which are appealable as per section 47 of the Guardians and Wards Act in which the order passed u/s 12 of Guardians and Wards Act does not find mentioned. The observation made in the case of Balram Yadav vs. Fulmaniya Yadav, reported in 2016 13 SCC 308: AIR 2016 SC 2161 is quite relevant at this juncture. The Hon'ble Apex Court while considering the scope of Section 7 of the Family Courts Act has observed that the Family Courts Act has an overriding effect. A plain reading of Sub section (1) of the Section 19 makes it clear that no appeal lies against interlocutory orders passed under the Family Courts Act. Section 20 of the Family Courts Act, 1984 provides for overriding effect of the Act on other laws or instruments having the effect of law. Section 20 of the Family Courts Act reads as follows:-

          "20.Act to have overriding effect- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. "

10. Now, I propose to examine some brief facts of this case in which the Impugned Order has been passed by the learned Principal Judge, Family Court, Patna. Guardianship Case No. 75 of 2024 was filed by the respondent - Abhinav Singh against the petitioner - Harsha Sharma. In that case, a petition was filed on 05.02.2025 by the respondent-Abhinav Singh praying therein that an order granting custody of the minor girl child, namely, Sidhvi Singh to the petitioner's father till the disposal of the present case for the welfare of the minor child and in the interest of justice be passed. After hearing both the parties on the said petition, Impugned Order was passed on 15.04.2025 by the learned Additional Principal Judge, Family court, Patna and the aforesaid petition of respondent - Abhinav Singh was allowed which is impugned in this case.

11. It is apparent that Guardianship Case No. 75 of 2024 has not attained its finality rather interim custody of minor child has been given in favour of the respondent by the Impugned Order. Hence, Guardianship Case No. 75 of 2024 is yet to be decided by the Family Court.

12. A similar matter was raised before the Division Bench of this Court (Patna High Court), which was decided in the case of Benazir Hasan Vs. Md. Rayeesul Azam and Another, reported in 2023 SCC Online Pat 4745. In the said judgment, the meaning of order and interlocutory order and scope of judgment and interlocutory order has been categorically discussed which is mentioned from para 14 to 18 of the said judgment.

          " 14. At this stage, it is necessary to take note of meaning of 'order' and 'interlocutory order' from the Black's Law Dictionary which read as under:-

          "order, n. 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a court or judge. The word generally embraces final decrees as well as interlocutory directions or commands. Also termed court order; judicial order. See MANDAMUS. [Cases: Federal Civil Procedure 928; Motions 46. C.J.S. Motions and Orders §§ 1-3, 13, 50, 59.]

          "An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceed- ings." 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902).

          "While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word 'order.'" 1 A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925).

          interlocutory order (in-tər-lok-yə- tor-ee). An order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class- certification orders) to be immediately appeal- ed. -- Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION; COLLATERALORDER DOCTRINE. [Cases: Appeal and Error 67; Federal Courts 572, 576; Motions 51. C.J.S. Appeal and Error § 84; Motions and Orders §§ 2, 52-53, 55.]"

          15. It is to be noted that final order has to be interpreted in contradistinction to an interlocutory order; and the test for determining the finality of an order is whether Judgment or order finally disposed of the rights of the parties. If an order which does not determine the rights of the parties but is only on certain aspect of the suit or the trial is an interlocutory order; that the concept of the interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order. Therefore, the impugned order is not appealable under Section 19(1) of the Family Courts Act. There is no concept of order other than interlocutory order or final order. The impugned order would fall in the nature of interlocutory order. Consequently, the present Miscellaneous Appeal is not maintainable.

          16. Section 47 of the G and W Act relates to appealable orders. We have quoted various Sections but Section 11, Procedure on Admission of Application, is not part and parcel of Section 47.

          17. In Balram Yadav v. Fulmaniya Yadav, (2016) 13 SCC 308: 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.

          18. The scope of 'Judgment' and 'interlocutory order' has been distinguished time and again by the Apex Court. In Shah Babulal Khimji v. Jayaben D. Kama, (1981) 4 SCC 8 : 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 I 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."

13. After going through the aforesaid statutory provision of Section 91 of the Family Courts Act as well as the above judgment, it clearly transpires that Appeal is maintainable only against the final judgment or order passed by the Family Court but the case in hand, there is no such final order or judgment. Hence, Appeal is not required against the Impugned Order.

14. Having regard to the aforesaid facts and after going through the entire statutory provisions hereinabove mentioned as well as the citation placed by both the parties and considering the overriding effects of the provisions of Family Courts Act, I follow the precedent and accordingly adopt the principle laid down by the Division Bench of Patna High Court based on the principle enunciated in the case of Balram Yadav vs. Fulmaniya Yadav (supra) by Hon'ble the Supreme Court. Thus, I find and hold that appeal is not maintainable in such type of case rather Civil Miscellaneous is maintainable.

15. The present petition has been filed by the wife/petitioner against the custody of her minor girl. As per submission, the petitioner and respondent are wife and husband and their marriage was solemonized in Patna on 09.03.2015 and from their wedlock, a girl child (Sidhwi Singh) was born. Earlier the respondent filed a case under Section 25 of the Guardians and Ward Act, 1890 before the Principal Judge, Family Court, Varanashi vide Misc. Case No. 69 of 2024 and in that case, vide order dated 06.07.2024, learned Principal Judge, Varanashi has allowed the interim custody of child to the father/respondent.

16. The petitioner being aggrieved has challenged the said order dated 06.072024 passed in Misc. Case No. 69 of 2024 before the Hon'ble High Court of Judicature at Allahabad from where the Hon'ble High Court, vide order dated 02.09.2024 has set aside the aforesaid order dated 06.07.2024. Against that order of Hon'ble High Court, Allahabad, the respondent has filed S.L.P(Civil) No. 24601/2024 before the Hon'ble Apex Court which was dismissed by order dated 25.10.2024.

17. The petitioner, thereafter, has filed Transfer Petition (Civil) No. 1857 of 2024 before Hon'ble Apex Court for transfer of Misc. Case No. 69 of 2024 from Family Court, Varanasi to Family Court, Patna which was allowed vide order dated 09.09.2024 and Misc. Case No. 69 of 2024 has been transferred from Family Court, Varanashi to Family Court, Patna and the same has been renumbered as Case No. 75(G)/2024.

18. In that case, the respondent/husband has filed a petition under Section 12 of the Guardians and Ward Act, 1890 in which the impugned order has been passed against the petitioner/wife which is under challenge in this Civil Miscellaneous Application.

19. It is submitted by learned counsel for the petitioner/wife that father of the respondent is suffering from acute neuro problem and almost bed-ridden and in this background even mother of the respondent is pre-occupied to look after her husband and practically she has no time for a demanding growing girl child. Moreover, there cannot be any substitute of a biological mother of a girl child that too when she is of merely 8 years old. It is further submitted that respondent/husband has got serious behavioral issues and an alcoholic and he cannot substitute the care, support and warmth of a biological mother that too for a minor girl child and without considering the aforesaid aspect, the interim order has been passed granting custody of minor girl-child to the respondent/husband by the learned Principal Judge, Family Court, Patna which is illegal and unjust.

20. Contrary to this, learned counsel appearing on behalf of the respondent/husband has submitted that impugned order is just, proper and in accordance with law and interference is not required in the order impugned.

21. After going through the impugned order and considering the submissions of the parties, it clearly transpires that the age of the minor girl has been mentioned as 8-9 years who is school going but the said minor girl has not been interacted nor her statement has been recorded by the trial Court before passing the impugned order, whereas the paramount consideration for granting custody to the minor child is to evaluate/examine the welfare of the minor. Certainly, an 8-9 years school going girl-child is capable to state something regarding the behaviour of her mother and father towards her and her welfare also which has not been done in this case which is very important aspect lacking in this case.

22. Accordingly, the matter is remanded back to the Principal Judge, Family Court, Patna for taking the statement of the minor girl-child and thereafter pass an order afresh after going through the entire aspects of this case, in accordance with law.

23. Civil Miscellaneous No. 539 of 2025 stands disposed of.