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2018 DIGILAW 910 (KER)

JAMEELA W/O BAVA MANALPARAMBIL v. NAZER KOTTARATH S/O KUNHIBAVA

2018-11-09

C.K.ABDUL REHIM, T.V.ANILKUMAR

body2018
ORDER : 1. Challenge in the above appeal is against an order passed by the Family Court in an interlocutory application filed seeking interim custody of a minor child, in an original petition instituted under the Guardian and Wards Act. While disposing the interlocutory application, the court below directed the appellant herein, who is the respondent before the court below, to hand over interim custody of the minor to the other party on alternate Sundays from 10 a.m. to till 4.30 p.m. with a change in the timing after two such occasions. 2. Question is whether an appeal is maintainable against the said order, under Section 19 of the Family Courts Act, 1984. Sub-Section (1) of Section 19 of the Family Courts Act, 1984 bars appeal from any interlocutory orders. It is held by this court in Manga Lakshmi vs. Basanth Kumar, 2016 (2) KLT 776 , that, no appeal will lie under Section 19 (1) of the Family Courts Act from an interlocutory order and also elaborated the parameters for deciding as to whether an order is interlocutory or not. It is held that, an order which does not terminate the proceedings or finally decides the right of the parties, is only an interlocutory order. It is found that, in ordinary sense, interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial, but which does not conclude the trial. It was observed that, the main question which would be borne in mind is whether the order is deciding the cause itself or whether it only settles some intervening matters relating to the cause. If the order does not terminate the proceedings or finally decides the right of the parties or decides the cause itself, then it is only an interlocutory order, is the finding. 3. The above principle was reiterated in subsequent decision in Vivek Joy vs. Chinchu Grace Lukose, 2018 (4) KLJ 127 . It is held that, the answer to the question as to whether the order is final or not, will not depend upon whether the controversy is finally decided or not by such an order. An order is not a final order unless it finally decides the right of the parties. It is held that, the answer to the question as to whether the order is final or not, will not depend upon whether the controversy is finally decided or not by such an order. An order is not a final order unless it finally decides the right of the parties. To judge whether the order is final in that sense, it is not always necessary to correlate the decision in every case with the facts in controversy. The answer to the question as to whether the order is final or not, will not depend upon whether the controversy is finally decided or not by such an order. In the above cited ruling this court held that, an order allowing or dismissing an application for setting aside an ex-parte decree is not an interlocutory order within the ambit of Section 19 (1) of the Act and it is appealable under the said provision. 4. In a still later decision in Sudheerkumar vs. Praveena, 2018 (4) KLT 241 , it was held that, an order allowing or dismissing an application for temporary injunction is an interlocutory order and no appeal shall lie against such an order, in view of the provisions contained in Section 19 (1) of the Act. Quoting the ruling in Manga Lakshmi (supra) it was observed that, an order of temporary injunction is only intended to preserve the subject matter of the lis. It was held that the proceedings in an application for temporary injunction cannot be considered as independent proceedings separate and distinct from the proceedings in the suit. 5. In the instant case, the order impugned is one passed within the ambit and scope of Section 12 of the Guardian and Wards Act, 1890. It empowers the court to direct any person having custody of the minor to produce him or to cause him to be produced at such place and time and before such person as it appoints and may make such order for temporary custody and protection of the person or property of the minor, as it thinks proper. The heading of Section 12 of the Guardian and Wards Act itself indicates that, it provides power to make interlocutory order for production of minor and interim protection of person and property of the minor. The heading of Section 12 of the Guardian and Wards Act itself indicates that, it provides power to make interlocutory order for production of minor and interim protection of person and property of the minor. The power under Section 12 is in contra distinction with the power of the court granting permanent custody or declaration of guardianship in an original petition filed under provisions of the said Act. Therefore, we are convinced that the order impugned herein is only an order making temporary arrangement with respect to custody of the minor child, pendente lite. 6. Learned counsel for the petitioner contended that, if a remedy which is akin to one provided under Section 104 read with Order XLIII Rule 1 of the Code of Civil Procedure is not made available in respect of an order passed by the Family Court, the parties will be put to prejudice, especially when the remedy to invoke the supervisory jurisdiction vested on this court under Article 227 has its own limitations. We notice that, by virtue of the non-obstante clause contained in Section 19 of the Family Courts Act, 1984; “notwithstanding anything contained in Code of Civil Procedure, 1908” the legislature had intentionally taken away such rights of appeal, as provided under the Code of Civil Procedure in respect of matters decided by the Family Court. Therefore the contention that, the party will be left with any efficacious remedy against such orders cannot be taken countenance to hold that an appeal will lie from an interlocutory order under Section 19 of the Family Courts Act, 1984. 7. More over, this court takes note of the fact that, a party in a proceedings under the Guardian and Wards Act will not be entitled to invoke Section 104 read with Order XLIII Rule 1 of Code of Civil Procedure, because Section 47 of the Guardian and Wards Act, 1890 itself specifies the category of orders from which appeal is maintainable. The category of orders enumerated therein does not include an interim orders passed under Section 12 of that Act. Therefore, even under provisions of the Guardian and Wards Act, the appellant herein is not entitled to challenge the impugned order in an appeal. 8. Under the above mentioned circumstances, we find that the defect noted by the registry is sustainable. Hence the above unnumbered appeal is hereby dismissed as not maintainable. 9. Therefore, even under provisions of the Guardian and Wards Act, the appellant herein is not entitled to challenge the impugned order in an appeal. 8. Under the above mentioned circumstances, we find that the defect noted by the registry is sustainable. Hence the above unnumbered appeal is hereby dismissed as not maintainable. 9. It is made clear that the appellant will be at liberty to challenge the impugned order in any other appropriate proceedings to the extent maintainable under law. If the appellant seeks for return of the certified copy of the impugned order, the registry shall return the same for facilitating the appellant to seek any other appropriate relief.