Source: Delhi High Court 

Why in News? 

Recently, the Delhi High Court in the matter of X v. Y has held that the orders passed under Section 12 of the Guardianship & Wards Act, 1890 (G & W Act) would be appealable under Section 19 of the Family Courts Act, 1984 (FC Act). 

What was the Background of X v. Y Case? 

• In the present case, the father (respondent) filed an application before the family court that the minor child be admitted in one of the three schools near his place, so that instead of being sent to a creche after school hours. 
  • The child could be placed in his temporary custody every day during the period when the mother was busy in office. 
• The Family Court passed an order allowing the father's application. 
  • The order permitted the father to pick up the child from the mother's house before school daily, drop and pick her up from school, and return her to the mother's home by 6:00 p.m. each day. 
  • The Family Court also directed that the father would bear the child's education expenses, which would be adjusted against the maintenance he was paying. 
• The mother (appellant), aggrieved by this order, filed an appeal before the Delhi High Court under Section 19(1) of FC. 
•  In her appeal, the mother sought to set aside the Family Court's directions, arguing that the child was already studying in a reputed nursery school (Scottish school). 
• The Delhi High Court issued a notice in the appeal and stayed the operation of the impugned order. 
• Later, the Delhi High Court directed that the child would continue in the Scottish school for the ongoing academic session but allowed the father to have custody on Saturdays from 2 p.m. to 6 p.m. 
• Subsequently, the father filed applications seeking dismissal of the appeal, arguing that it was not maintainable under Section 19 of the FC Act  
  • The father contended that the impugned order was an interlocutory order passed under Section 12 of the Guardians and Wards Act, 1890(G&W Act) and therefore not appealable under Section 19 of FC Act. 
• The Division Bench referred to various judgement and held that an order passed under Section 12 of the G & W Act, impinges on the rights and welfare of the minor child, it would be incorrect to hold that such an order was not appealable under Section 19 of the FC Act and passed a reference order. 

What were the Court’s Observations? 

• The Delhi High Court observed that:  
  • The FC Act provides a comprehensive jurisdiction by laying down a complete procedural code for filing appeals in respect of orders passed under various enactments dealing with marriage and family affairs.  
  • The appellate provisions of the FC Act are intended to be independent of the appellate provisions under other statutes like the G & W Act. 
  • The FC Act, being a later enactment with an overriding effect, cannot be controlled or curtailed by mechanisms available under older statutes. 
  • The nomenclature of an order alone cannot determine its nature. An order labeled as "interlocutory" under one statute may not necessarily be treated as interlocutory under the FC Act. 
  •  Orders that affect vital rights of parties or have a significant impact on the minor child, even if interim in nature, cannot be treated as mere interlocutory orders from which no appeal would lie. 
  • Excluding orders pertaining to matters of moment from the appellate provision would be against the object and spirit of the FC Act. 
• The court emphasized that orders under Section 12 of the G & W Act often have far-reaching effects on parties' rights and the child's welfare and are adjudicatory in nature. 
• The Delhi High Court stated that the FC Act does not define "interlocutory order," and therefore, the term should be interpreted purposively to include orders that touch upon matters of moment and have trappings of finality. 
• The Delhi High Court disagreed with the Colonel Ramesh Pal Singh case and held that: 
  • In every case, the nature of the impugned order should be examined in its entirety to determine whether it is adjudicatory and decides valuable rights of the parties. 
  • The appeals should be entertained against orders that touch upon vital rights of parties, as opposed to merely procedural orders, regardless of whether they were passed during pending proceedings. 
  • The orders passed under Section 12 of the G & W Act would be appealable under Section 19 of the FC Act. 

What are the Cases Referred to in the Case of X v. Y? 

• Shah Babulal Khimji v. Jayaben D. Kania (1981): 
  • This case dealt with what constitutes a "judgment" for the purpose of appeals under the Letters Patent of High Courts. 
  • The Supreme Court held that the nature of an order, not its label, determines if it's appealable. 
  • It defined three types of judgments: final, preliminary, and intermediary/interlocutory. 
  • The court held that even some interlocutory orders can be appealed if they have characteristics of finality and directly affect a party's rights.
• Amar Nath and Ors. v. State of Haryana (1977):
  • This case interpreted the term "interlocutory order" in the context of criminal procedure. 
  • The Supreme Court held that "interlocutory order" should be interpreted narrowly. It stated that orders which substantially affect the rights of the accused or decide important rights of the parties are not merely interlocutory and can be subject to revision.
• Manish Aggarwal v. Seema Aggarwal (2012):  
  • This case, decided by the Delhi High Court, dealt with the scope of appeals under the FC Act. It held that certain interim orders (like those under Section 24 of the Hindu Marriage Act, 1956) were appealable under the Family Courts Act.
• Colonel Ramesh Pal Singh v. Sugandhi Aggarwal (2019): 
  • In this case, the Delhi High Court held that orders under Section 12 of the G & W Act were not appealable under the FC Act. The correctness of this judgment was the main issue being reconsidered in the present case. 

What is Section 12 of the G & W Act? 

• It states the provisions for power to make interlocutory order for production of minor and interim protection of person and property 
  • Sub section (1) states that the Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. 
  • Sub section (2) states that 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. 
  • Sub section (3) states that Nothing in this section shall authorize: 
    • Clause (a) states that 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 
    • Clause (b) states that 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. 

What is Section 19 of the FC Act? 

• It states the provisions for appeal as: 
  • Sub section (1) states that save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (CrPC), 1973 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. 
  • Sub section (2) states that 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 CrPC. 
  • Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the CrPC before the commencement of the FC Act. 
  • Sub section (3) states that 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. 
  • Sub section (4) states that the High Court may, of 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 CrPC 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. 
  • Sub section (5) states that except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. 
  • Sub section (6) states that an appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.