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Madhya Pradesh High Court

Smt. Urmila Mishra vs Lalji Mishra on 4 October, 2023

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari, Pranay Verma

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                                   HON'BLE SHRI JUSTICE PRANAY VERMA
                                             ON THE 4 th OF OCTOBER, 2023
                                              MISC. APPEAL No. 5903 of 2023

                          BETWEEN:-
                          SMT. URMILA MISHRA W/O SHRI NIRAJ DUBEY, AGED
                          30 YEARS, HALDIBADI BAZAR S.E.C.L. HOSPITAL KE
                          PASS CHIRMIRI TEH. BAIKUNTHPUR DISTRICT
                          KORIYA (CHHATTISGARH)

                                                                                     .....APPELLANT
                          (SHRI SHUBHAM ARYA, LEARNED COUNSEL FOR THE APPELLANT)

                          AND
                          LALJI MISHRA S/O SHRI R.N. MISHRA, AGED 49 YEARS,
                          MISHRA PHOTO STUDIO, 1342 NEW OVER BRIDGE
                          GUDHAYARI     TEH.    AND     DISTRICT    RAIPUR
                          (CHHATTISGARH)

                                                                                   .....RESPONDENT
                          (NONE PRESENT FOR THE RESPONDENT)



                                This appeal coming on for order this day, Justice Sushrut Arvind
                          Dharmadhikari passed the following:
                                                            ORDER

Heard on the question of admission.

The present miscellaneous appeal u/S 47 of Guardians and Wards Act, 1890 has been filed against the order dated 05.08.2023 passed by Principal Judge Family Court, Dewas in MJCR/07/2021 by which application filed by the respondent u/S 7 and 8 of Guardians and Wards Act(referred to as 'the Act' Signature Not Verified Signed by: SEHAR HASEEN Signing time: 10/5/2023 6:12:57 PM 2 hereinafter) has been allowed.

2. Brief facts of the case are that marriage of appellant was solemnized with the son of respondent on 21.05.2010 as per Hindu Rights and Rituals. After marriage, she started residing at her matrimonial house alongwith her husband at Raipur after ritual of Gauna in the year 2013. They were blessed with a son namely Master Anmol Mishra who is now 07 years of age. Unfortunately, appellant's husband died in an accident on 08.01.2017. She resided with the respondent alongwith her son till 05.05.2019. Thereafter, appellant solemnized second marriage and started living with her second husband and minor son. Respondent has filed application under Section 7 and 8 of Guardians and Wards Act before the Family Court which was allowed. Now the present appeal is preferred.

3. Learned counsel for the appellant submits that learned Court below has erred in not taking into account the facts and circumstances of the case. Despite admitting the fact that appellant is the natural guardian, Court below has erred in allowing the application filed by the respondent and failed to consider that respondent has clearly given up the responsibility of her and her minor son and that all the dowry is still lying at her matrimonial house. It is further submitted that looking to the callousness of respondent and being disrespected time and again by them, appellant is left with no other option, but to remarry in order to give a secure future to her son. However, all these aspects have not been taken care of by the Court below while allowing the application filed by the respondent. Hence, in the interest of justice, the order passed by the Court below be set aside.

4. We have heard learned counsel for the appellant and perused the record.

5. Though, the appellant has not mentioned the provision in the interim application, but considering the averment and the relief which was sought by the appellant, it appears that the interim application for allowing the ward to meet his grandparents/respondent falls u/S 12 of the Act. Appeal for orders provided u/S 47 of the Act, it is apposite to reproduce Section 47, which is as follows:-

"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,

(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."

6. From perusal of Section 47 of the Act, it is apparent that the interim order u/S 12 of the 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 Signature Not Verified Signed by: SEHAR HASEEN Signing time: 10/5/2023 6:12:57 PM 4 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.

7. 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 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 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."

8. Considering the observation made by the Delhi High Court in the case of Colonel Ramesh Pal Singh(supra), it is crystal clear that interlocutory order passed u/S 12 of the Act is not appealable both u/S 47 of the Act and u/S 19(1) of the Family Courts Act, 1984.

9. In view of the aforesaid , this appeal against an interlocutory order is not maintainable and is accordingly dismissed.

10. However, learned Court below is directed to expedite the hearing of the case.

It is made clear that this Court has not expressed any opinion on the merits of the case.

                               (S. A. DHARMADHIKARI)                               (PRANAY VERMA)
                                        JUDGE                                          JUDGE
                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 10/5/2023
6:12:57 PM