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IN THE HIGH COURT OF JUDICATURE AT PATNA
S. B. PD. SINGH, J.
Harsha @ Harsha Sharma Wife of Abhinava Singh - Petitioner
Versus
Abhinav Singh Son of Ramashraya Prasad Singh - Respondents
Civil Miscellaneous Jurisdiction No.539 of 2025
Decided On : 22-01-2026
Guardians and Wards Act, 1890 – Sections 12 and 47 – Family Courts Act, 1984 – Sections 7 and 19 – Maintainability of Civil Miscellaneous Application against guardianship order – No appeal lies against interlocutory orders passed under Family Courts Act – Guardianship case has not attained its finality rather interim custody of minor child has been given in favour of respondent by impugned Order – Guardianship case is yet to be decided by Family Court – Appeal is maintainable only against final judgment or order passed by Family Court but case in hand, there is no such final order or judgment – Appeal is not required against impugned Order, rather Civil Miscellaneous is maintainable. (Paras 9, 11, 13 and 14)
Guardians and Wards Act, 1890 – Section 12 – Guardianship case – Grant of interim custody of minor child in favour of respondent – Paramount consideration for granting custody of minor child is to evaluate/examine welfare of minor – An 8-9 years school going girl-child is capable to state something regarding behaviour of her mother and father towards her and her welfare also which has not been done in this case which is very important aspect lacking in this case – Matter remanded back to Principal Judge, Family Court, Patna for taking statement of minor girl-child and thereafter pass order afresh. (Paras 21 and 22)
Cases Referred:
Balram Yadav vs. Fulmaniya Yadav, (2016) 13 SCC 308: AIR 2016 SC 2161; Benazir Hasan vs. Md. Rayeesul Azam, 2023 SCC Online Pat. 4745 – Relied.
| Table of Content |
|---|
| 1. parties involved and context of custody case. (Para 1 , 10 , 15 , 16 , 17) |
| 2. arguments regarding maintainability and welfare of the minor. (Para 2 , 4 , 19 , 20) |
| 3. observations about jurisdiction and welfare considerations. (Para 3 , 6 , 8 , 12 , 21) |
| 4. legal framework defining appealable orders and interlocutory nature. (Para 5 , 7 , 9 , 14) |
| 5. case remanded for further consideration. (Para 22 , 23) |
JUDGMENT :
Heard learned counsel of both the parties.
2. At the very outset, learned counsel appearing on behalf of the respondent has raised a preliminary objection to the maintainability of the present Civil Miscellaneous Application, contending that no such Civil Miscellaneous Application can lie against an order passed under Section 12 of the Guardians and Wards Act. It was submitted that the proper remedy is to file an appeal under Section 19 of the Family Courts Act, 1984.
3. In order to buttress his argument, learned counsel appearing on behalf of the respondent has placed reliance on the judgment passed in the case of Dr. Geetanjali Aggarwal vs. Dr. Manoj Aggarwal , reported in (2024) 4 High Court Cased (Del) 451 : 2024 SCC Online Del 7220.
4. Per contra, learned counsel appearing on behalf of the petitioner submits that the present Civil Miscellaneous Application is maintainable against the aforesaid order, as the nature of the impugned order is purely interlocutory.
5. Before adverting to the factual aspects of the matter, it is important to reproduce Section 12 and other provisions of Guardians and Wards Act , under which the Impugned Order has been passed.
“12. Power to make interlocutory order for production of minor and interim protection of person and property –
(1) The Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.
(3) Nothing in this section shall authorise -
(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or
(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.”
6. As per the objection raised by learned counsel for the respondent, the said impugned order, having been passed by the Family Court, is appealable. Further, under Section 47 of the Guardians and Wards Act , 1890, the orders which are appealable have been specifically enumerated, as under:—
“ 47. Orders appealable – An appeal shall lie to the High Court from an order may be 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 a ward 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.”
7. In Family Court
Interlocutory orders under the Family Courts Act are not appealable; custody decisions must prioritize the welfare of minors by considering their perspectives.
A custody order under the Guardians and Wards Act, if a result of a full trial, is appealable and not merely interlocutory.
The court clarified that an order granting visitation rights is an intermediary order, thus appealable under Section 19 of the Family Courts Act, 1984.
Appeal – Orders passed under Section 12 of Guardians and Wards Act, 1890 would be appealable under Section 19 of Family Courts Act, 1984.
Orders under Section 12 of the Guardians and Wards Act are appealable under Section 19 of the Family Courts Act, as they affect vital rights and welfare of minors.
A reference to a larger bench is only warranted in the presence of conflicting decisions, not merely to create a precedent.
Family Court's interlocutory orders regarding visitation are not appealable under Section 19 of the Family Courts Act, especially when subsequent events alter the initial conditions significantly.
Interim maintenance orders under Section 24 of the Hindu Marriage Act are interlocutory and not appealable under Section 19 of the Family Courts Act.
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