Madhya Pradesh High Court
Rachit Mittal vs Smt. Harshali Mittal on 14 June, 2023
Author: Prakash Chandra Gupta
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
1
M.A. No.5093/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
MISC. APPEAL No. 5093 of 2022
BETWEEN:-
RACHIT MITTAL S/O SHRI KULBHUSHAN GUPTA,
AGED 37 YEARS, OCCUPATION: SERVICE R/O 205
AMRAPALI SILICON CITY SECTOR 76 NOIDA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI DEEPTANSHU SHUKLA - ADVOCATE)
AND
1. SMT. HARSHALI MITTAL W/O RACHIT MITTAL,
AGED 37 YEARS, OCCUPATION: JOB R/O 110 RNT
MARG CHHAWANI INDORE (MADHYA PRADESH)
2. HARSHIT MITTAL S/O RACHIT MITTAL, AGED 7
YEARS, 110, RNT MARG, CHHAWANI INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS)
Reserved on : 28.04.2023
Pronounced on : 14.06.2023
---------------------------------------------------------------------------------------
This appeal coming on for admission this day, Hon'ble Shri
Prakash Chandra Gupta pronounced the following:
2
M.A. No.5093/2022
JUDGEMENT
Per :- Prakash Chandra Gupta, J.
Heard on I.A. No.7649 of 2022, which is an application for ignoring defects pointed out by the Registry.
2. For the reasons stated in the application, I.A. No.7649 of 2022 is allowed and defects as pointed out by the Registry is overruled.
3. Also heard on question of admission.
4. The present miscellaneous appeal has been filed under Section 47 of The Guardians And Wards Act, 1890 (hereinafter as G & W Act) by the appellant/husband being aggrieved by the order dated 12/09/2022 passed by Additional Principal Judge Family Court, Indore in case No.95/2019 whereby, the learned trial Court rejected the application of appellant in respect to interim visitation rights.
5. The counsel for the appellant/husband has not annexed the copy of original application presented by him before the learned trial Court neither has filed copy of reply to the application (Annexure-A1) made for interim visitation right nor any copy of order-sheet (except the copy of impugned order dated 12/09/2022). Looking into the matter it appears that a case No.95/2019 is pending before the learned trial Court on the basis of an application filed by the appellant for obtaining the custody of his son, Harshit Mittal, aged about 7 years against the respondent which is pending before the learned trial Court. Though, it has not been mentioned in the appeal memo that under which provision he has filed the aforesaid application. At the latter stage, the appellant filed an application 3 M.A. No.5093/2022 (Annexure-A1) for the following interim relief, seeking custody of son during:-
(i) Every summer and winter vacation of school at his place in Noida, and
(ii) Birthday (i.e., 10th of October) of alternative year at his place in Noida for a week.
6. It appears from the impugned order (Annexure-A1) that the appellant is already allowed to visit his son from 03:00 - 04:00 PM in every fixed date for hearing of the case and he is also allowed to have conversation with his son by means of video conferencing twice a month. The learned trial Court understanding the brevity of matter, considering the impossibility to send a minor boy aged 7 years from Indore to Noida without his mother, and the discomfort that will be faced by the child rejected the application (Annexure- A2) by the impugned order (Annexure- A1).
7. The learned counsel for the appellant being aggrieved by the impugned order filed this miscellaneous appeal and submitted that the learned family Court has committed a grave error in denying the visitation schedule. That the separation from the appellant/father can lead to disorders such as "Parental Alienation Syndrome". That such denial is violation of Article 21 of the Constitution of India. The counsel prays the appeal to be allowed and the visitation must be allowed as per "Child Access And Custody Guidelines" passed by this High Court. The learned counsel has relied upon the case of Vivek Singh V Romani Singh (2017) 3 4 M.A. No.5093/2022 SCC 231.
8. Though, the appellant has not mentioned the provision in the interim application (Annexure-A2), but considering the averment and the relief which was sought by the appellant, it appears that the interim application (Annexure-A2) comes u/S 12 of the G & W Act. Appeal for orders provided u/S 47 of the G & W Act, it is apposite to reproduce Section 47, which runs as under:-
"47. Orders Appealable.- An appeal shall lie to the High Court from an order made by a Court,--
(a) under Section 7, appointing or declaring or refusing to appoint or declare a guardian; or,
(b) under Section 9, Sub-Section (3), returning an application; or,
(c) under Section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or,
(d) under Section 26, refusing leave for, the removal of award from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or,
(e) under Section 28 or Section 29, refusing permission to a guardian to do an act referred to in the section; or,
(f) under Section 32, defining, restricting or extending the powers of a guardian; or,
(g) under Section 39, removing a guardian; or,
(h) under Section 40, refusing to discharge a guardian; or, 5 M.A. No.5093/2022
(i) under Section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or,
(j) under Section 44 or Section 45, imposing a penalty."
9. From perusal of Section 47 of G & W Act, it is apparent that the interim order u/S 12 of the G & W Act is not appealable under Section 47 of the Act. The order under challenge is nothing but an interlocutory order and as per the settled preposition of law, no appeal would lie against an interlocutory order. An appeal under Section 19(1) of the family Courts Act, 1984 is also not maintainable against an interlocutory order.
10. The Delhi High Court in the case of Colonel Ramesh Pal Singh vs Sughandhi Aggarwal [MAT. APP. (F.C.) 211/2017, judgment dated 01/10/2019] in paragraph 9 & 12 has held as under:-
"9. A bare reading of the above provisions would manifest that the principle enshrined under Section 12 of the G & W Act provides for power to make interlocutory orders for production of a minor child, interim protection of the child and his property and empower the court to handover temporary custody as well modify or vary any such orders required due to changed conditions and circumstances. Section 47 bars an appeal against an order passed under Section 12 of the G & W Act.
12. In Balram Yadav vs Fulmaniya Yadav, AIR 2016 SC 2161, the Apex Court while considering the scope of Section 7 of the Family 6 M.A. No.5093/2022 Courts Act observed that the Family Courts Act has an overriding effect. A plain reading of Sub-Section (1) of Section 19 makes it clear that no appeal lies against interlocutory orders passed under the Family Courts Act."
Considering the observation given by the Delhi High Court in the said case, it is crystal clear that interlocutory order passed u/S 12 of the G & W Act is not appealable both u/S 47 of the G & W Act and u/S 19(1) of the Family Courts Act, 1984. The case-law, Vivek Singh (Supra), being relied upon by the appellant is not applicable in the instant case.
11. Therefore, keeping in view the relevant provision of law as discussed above, we are in considered opinion that appeal filed by appellant u/S 47 against the impugned order is not maintainable. Accordingly, the appeal is dismissed as not maintainable.
However, taking into account the litigation pending between the parties, the family court is directed to dispose off the custody petition at earliest.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Shruti
SHRU
Digitally signed by SHRUTI JHA
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serialNumber=975D0201B09C38473541A
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Date: 2023.06.16 11:15:11 +05'30'