Section 12 Guardians and Wards Act orders can be appealed before High Court: Delhi High Court

The Delhi High Court recently ruled that orders passed under Section 12 of the Guardians and Wards Act, 1890 (GW act) can be challenged by filing appeals before the High Court under Section 19 of the Family Courts Act, 1984 (FC act)..A Full Bench of Justices Rekha Palli, Jasmeet Singh and Amit Bansal settled this issue while hearing a reference in a minor custody case."An order under Section 12 of the GW Act which entitles the Court to grant temporary custody of the child to one of the parents would definitely be an order passed after evaluating the respective contentions of the parties and would necessarily affect not only their rights but also those of the minor child. To hold that such an order would not fall within the ambit of Section 19 (1) of the FC Act would not only amount to unduly restricting the scope of this appellate provision but would also curtail the exercise of the parens patriae jurisdiction which the Court exercises in the welfare of the minor child," the Court held..Section 12 of the GW Act empowers family courts to issue interlocutory orders for the production of minors and temporary protection of persons and property.Section 19 of the FC Act provides that every family court judgment or order can be challenged by filing appeals before the High Court unless it is an interlocutory decision.The question before the Court was whether an order passed under Section 12 of the GW Act (referred to as an "interlocutory" order under the GW Act) would be appealable under Section 19 of the FC Act..The Court has clarified that the "interlocutory" orders excluded from the purview of Section 19 of the FC Act are only those orders which are merely procedural in nature and which do not have trappings of finality.Such orders would not include orders that may be interim orders, but which affect vital rights of the parties to a case. The orders passed under Section 12 of the GW Act determine the vital rights of parties, even if they are referred to as "interlocutory" orders. Therefore, the use of the term "interlocutory" in this provision is not grounds to exclude orders under Section 12 of the GW Act from being appealed under Section 19 of the FC Act, the Court held. "The nomenclature of an order in itself cannot be determinative of the nature of that order. Merely because an order, despite affecting the vital rights of the parties, is labelled as an interlocutory order under a particular statute, cannot imply that the same must always be treated as an interlocutory order. In the present case, the FC Act which provides for this appellate provision, neither defines the expression 'interlocutory order' nor contains any ouster provision as contained in the Commercial Courts Act, 2015, and therefore, it would be against the very object and spirit of the said Act to exclude orders that pertain to matters of moment from the ambit of the appellate provision under Section 19 (1) of the FC Act," the Court said..The Court also highlighted that the scope of appellate jurisdiction under Section 19 of the FC Act was always meant to be very wide. It pointed out that the legislature had meant to provide a common appellate forum for filing appeals to the High Court against orders passed under various laws relating to marriage and family affairs. Therefore, the Court opined that the GW Act cannot curtail a party's appellate rights under the FC Act. "The ambit and scope of this wide provision under the FC Act which streamlines the appellate provisions pertaining to marital and family matters by providing for an appeal to the High Court, cannot be controlled or curtailed in any manner by the mechanism available under other statutes," the Court held..Advocates Sumante De, Rohit Khurana, Preeti Nair, Akshita Raina and Kumar Harsh, appeared for the appellant.Advocate Siddharth Handa appeared for the respondent.Advocate Prosenjeet Banerjee appeared as Amicus Curiae in the matter..[Read Judgment]