Recently the High Court of Allahabad has ruled that an appeal cannot be filed against an interlocutory order passed u/s 12 of the Guardians and Wards Act.
The order was passed by the bench of Hon’ble Justice Surya Prakash Kesarwani and Hon’ble Justice Dr Yogendra Kumar Srivastava.
Background of the Case:-
A first appeal was filed by the Appellant u/s 19 of Family Court’s Act against the order passed by the Principal Judge of the Family Court, Kanpur Nagar.
Proceedings under Section 25 of the Guardians and Wards Act, 1890 were initiated by OP No.2 before the Principal Family Judge, Kanpur Nagar.
During the pendency of the case, OP no,2 filed an application u/s 12 of the Guardians and Wards Act for making an interlocutory order for grant of visitation rights to enable him to meet the child. This application was allowed by the Court.
Aggrieved, the Appellant filed a First Appeal against the order.
OP No.2 raised an objection with regards to the maintainability of the appeal. It was submitted that an appeal could not be filed against an interlocutory order passed u/s 12 of the Guardian and Wards Act
To adjudicate the case, the Bench referred to various case laws. Some of them are mentioned below.
In Rosy Jacob vs Jacob A Ckakramakkal it was held that all orders related to custody of minor wards by their very nature should be considered temporary in nature, are made under existing circumstances, and were subject to variation with changed circumstances.
A reference was also made to Vikram Veer Vohra vs Shalini Bhalla where the Court had reiterated that custody orders should always be considered interlocutory orders and by the very nature of such proceedings they could not be rigid and final.
In RV Srinath Prasad vs Nandamuri Jayakrishna & Ors, the Court had again held that custody orders could never be considered final.
After going through all the facts of the case and precedents, the Court held that the instant appeal filed under Section 19 of the Family Court Act 1984 was not maintainable.
Accordingly, the appeal was dismissed by the Hon’ble Court.
Title: Sana Afrin vs Zohaib Khan
Case No.:FIRST APPEAL DEFECTIVE No. 246 of 2020
Date of Order:11/11/2020
Coram: Hon’ble Justice Surya Prakash Kesarwani and Hon’ble Justice Dr Yogendra Kumar Srivastava
Counsel for Appellant: Mohammad Umar Khan
Counsel for Respondent: Arun Kumar Pandey