- (1.) THE present appeal under Section 19 of the Family Court Act, 1984 (for short, the Act) arises out of the order dated June 30, 1993 of the learned Judge, Family Court, made under Section 12 of the Guardians and Wards Act, 1890 (for short, the Act of 1890 ).
(2.) SEEMA, the appellant herein, is admittedly the wife of respondent Sanjeev Godha and out of the wedlock a female child 'nainika' was born on October 4, 1989. The relations between SEEMA and her husband, Sanjeev Godha, some how became strained and according to SEEMA she started living with her parents. On June 8, 1992, as per the case of Smt. SEEMA, while Nainika was living with her the respondent Sanjeev Godha took her from her custody by force when she was hardly 2 years and 2 months of age. He also threatened her with dire consequences if she makes an attempt to claim the custody of the girl. When she went to the house of the respondent on July 11, 1992 in the absence of the respondent to meet her daughter, the daughter, Nainika, returned with her but again the respondent took her by force. SEEMA filed an application on July 13, 1992 before the Chief Judicial Magistrate, Jaipur City under Section 97 Cr. P. C. and on a search warrant being issued the girl was produced before him. Thereafter, on July 25, 1992 with the consent of the parties, Chief Judicial Magistrate made an order that till the matter of guardianship is decided by the Family Court the girl will remain with the appellant and on holidays of Sunday and Saturday she will remain with the respondent. The said order was upheld in revision by this, Court on December 14, 1992. It appears that a complaint was filed in this court allegedly on the ground that Seema has not complied with the order of this court and this court (Hon'ble Mohini Kapur. J.) under its order dated May 14, 1993 in the contempt matter allowed the custody of Nainika with the father and at the end of the order this court said "the Family court shall decide about the custody of the child Nainika without being influenced by any observation made in this order. Till such time the child Nainika will remain with her father (petitioner)". Before the aforesaid order was made it appears that an application under Section 7 of the Act of 1890 had already been made for custody of the child by Smt. Seema, the appellant herein, and in it interim custody was claimed under Section 7 of that Act. The learned Judge, Family Court under the impugned order dated June 30, 1993 said that it was not necessary to make an order about the interim custody of Nainika because she is under the guardianship of her natural guardian. The learned Judge, Family Court said that he did not see any reason to make any change in the order about the custody of the minor and will decide the matter finally. A preliminary objection has been raised by the learned counsel for the respondent that the appeal is not maintainable under Section 19 of the Act because the order of the learned Judge, Family Court is an 'interlocutory order' and it has been provided under Section 19 of the Act that no a lies against ah interlocutory order. We will first deal with the preliminary objection about the main of the appeal. A bare reading of Section 19 of the Act, more so, its (1) will leave no manner of doubt that an appeal will not lie against an order which is interlocutory order of the Family Court. That apart, sub-section (4) of Section 19 of the Act bars any appeal or revision to any court from any judgment, order or decree of a Family Court otherwise than as provided under sub-section (2) and (3) of Sec. 19 of the Act. Therefore, if the impugned order is an 'interlocutory order' the appeal will not lie against the same under Section 19 (1) of the Act. Learned counsel for the appellant contends that it is not an 'interlocutory order' inasmuch as so far as the matter of custody of the minor female child during the pendency of the application under Sec, 7 of the Act of 1890 is concerned, the matter stands finally disposed of. The rights of the parties for the interim custody of the minor during the pendency of the proceedings for final custody of the minor have been adjudicated and therefore an appeal lies against such an order and the bar under Sec. 19 (1) of the Act is not attracted. Learned counsel has tried to make distinction in between the order giving on 'interim custody' and the 'interlocutory order'. In support of his contention learned counsel referred to the case of Amarnath and others vs. State of Haryana and others (1 ). In that case the court was dealing with the scope of Section 397 (2) and 482 Cr. P. C. The Court was also dealing with the question as to what is the connotation of the term 'interlocutory order' but it was so considering the said term only in so far as it was used under Sec. 397 (2) Cr. P. C. The court said - "the term 'interlocutory order' is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary 'interlocutory' has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term 'interlocutory order' in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an inter-locutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may in doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Courts". In the case of V. C. Shukla vs. State, (2), Fazal Ali J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom entirecase law on the subject and deduced therefore, the following two principles, that a final order has to be interpreted in contra-distinction to an interlocutory order, and (ii) that the test for determining the finality of an order judgment or order finally disposed of the rights of the parties. Learned judge further said that these two principles will apply to civil as well as criminal cases. The aforesaid case came up for consideration before the Apex Court in the case of Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, (3) wherein the Apex Court was dealing with the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987. Dealing with the question as to whether or not granting or refusing bail is interlocutory order, and the court in para 24 said that it is an interlocutory order and against the same appeal does not lie in the Supreme Court. Section 19 (1) of the Act provides that an appeal shall lie from any 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) of Section 19 provides that no appeal shall lie from a decree or order passed by the Family court with the consent of the parties. Sub-section (4) of Sec. 19 of the Act provides that except as provided under sub-section (1) and (2), no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. The Apex Court interpreted the term 'interlocutory order' even an order granting or refusing bail and said that no appeal will lie to the Apex Court under the aforesaid provision. A Division Bench of this Court in the case of Minor Anu alias Atul v. Ratanlal Sharma and others (4), dealing with Section 19 (1) of the Act in a case of maintenance of the minor child said that no appeal will lie under Sec. 19 (1) of the Act because an order granting interim maintenance allowance is an interlocutory order with in the meaning of sub-seption (1) of Section 19 of the Act.
(3.) AN application under Section 7 of the Act of 1890 has been filed and during the pendency of that application, under Sec. 12 of that Act an application for interim custody of the minor child was filed. A bare reading of sub-section (1) of Sec. 12 of the Act of 1890 will show that the,court is empowered to make an interim order for protection of the person or property of the minor. It will be seen that under Section 12 more than one order for temporary custody and protection of person and property can be made. Though, we are dealing with an appeal under Section 19 (1) of the Act, but even under Sec. 47 of the Act of 1890 which deals with an order made under Sec. 12 for temporary custody and protection of the person of the minor has not been made appealable. Before coming into force of the Act a revision might have been maintained and perhaps was maintainable but the matters of custody of minor having come under exclusive jurisdiction of the Family Courts under the Act, it is the Act which will apply and therefore we are of the opinion that so far as the order of the court relating to temporary custody under Sec. 12 of the 1890 Act pending the application under Sec. 7 of that Act is concerned, it is an 'interlocutory order' and an appeal under Sec. 19 (10) of the Act will not be maintainable. But during the course of arguments we had put to the learned counsel for the parties the question whether or not in a given case if the order of the Family Court is such which is perverse and is one which could not have been made under the provisions of law and an appeal does not lie under Sec. 19 (1) of the Act because the said order is 'interlocutory order' whether this court can exercise its power under Article 226 or 227 of the Constitution of India. Learned counsel for the respondent could not satisfy us that this power could not be exercised. We are of the opinion that Article 227 of the Constitution of India confers power on this court of superintendence over all courts and tribunals throught the territory of Rajasthan and in exercise of those powers, which powers have no doubt to be exercised most sparingly only in cases where grave injustice would be done unless this court interferes, this court can quash the orders of the Tribunal. The said power under Article 227 of the Constitution being discretionary it is for the court of exercise the discretion and no party can claim the exercise of such power as of right. We have to examine as to whether it is a proper case in which we should exercise our powers of superintendence under Article 227 of the Constitution and whether the order giving the interim custody of the minor child to the father pending the disposal of the application under Sec. 7of the Act of 1890 has been made in flagrant violation of the provisions of law and is perverse? The dispute relaties to the custody of minor female child Nainika. We will not go into the dispute whether or not as' alleged by Smt. Seema, mother of Nainika, Nainika was kidnapped by her father Sanjeev Godha from the custody of the mother or it is Seema who had taken away the minor from the custody of her father. It cannot be disputed that Seema is Rajput by caste and Sanjeev Godha is Jain by caste. The marriage took place on August 31, 1986 and out of the wedlock Naisnlka was born on October 4, 1989. The relations of the husband and wife became strained and an application No. 111/92 was filed by Smt. Seema against her husband Sanjeev Godha under Sec. 97 Cr. P. C. in the court of Chief Judicial Magistrate. Nainika was produced before the learned Chief Judicial Magistrate. Under his order dated July 25, 1992 learned Chief Judicial Magistrate observing that so far as custody of minor is concerned, it is to be decided by the Family Court, ordered that till the matter of custody of minor is decided by the Family Court it will be in the welfare of the minor that she remains in the custody of her mother Seema Godha. He also ordered that on holiday on every Saturday and Sunday Sanjeev Godha will take the custody of the minor Nainika from the house of Seema and can keep Nainika with him. The said order appears to have been made after making efforts of reconciliation and with the consent of the parties. The said order was challenged by Sanjeev Godha, the father of the minor in this court by filing a revision petition against the aforesaid order of the learned Chief Judicial Magistrate and this Court (Hon'ble Mohini Kapur J.) in S. B. Cr. Revision Petition No. 182/1992 under order dated December 14, 1992 observed that the child is about 3 years old and the mother can be said to be the better person to look after her. It was also observed that the arrangement that the father can keep the child for two days is also satisfactory. It was also observed by the learned Judge that when the father and mother both are having the custody of the Child there are some chances for reconciliation between them. The learned Judge approved the arrangement made by the learned Chief Judicial Magistrate and disposed of the revision petition. A contempt petition was filed by Sanjeev Godha in this court which was registered as S. B. Cr. Contempt Petition No. 164/1993 and in the said contempt petition it was alleged that Seema had taken the child forcibly on December 17,1992 and her custody had not been transferred to the father Sanjeev Godha. Learned Judge while taking into consideration the fact that application for custody under Sec. 7 has already been filed by Seema in the Family Court, did not think it proper to give her any punishment for the contempt. She also observed that if reconciliation is not possible even inspite of differences, they should not run the life of the child by dragging her in their disputes, and said above the learned Judge said that the Family court shall decide about the custody of the child Nainika without being influenced by any observations made in that order and till such time the child Nainika will remain with her father. The learned Judge, Family Court, in his impugned order reffused to give the interim custody of Nainika to Seema her mother and observing that the application in respect of custody of minor is yet to be decided by the court and he does not consider it necessary to make any order in respect of interim custody because the father is natural guardian of the minor and that taking into consideration the circumstances it appears to him that when the custody was given to her. she was unable to keep her in custody. He, therefore, maintained the order dated December 14, 1993 of the learned Judge of this court under which till the disposal of the application for custody by the Family Court. the custody was given to Sanjeev Godha. It is that order which has been challenged by the appellant herein. ;