IMPORTANT POINT
A custody order under the Guardians and Wards Act, if a result of a full trial, is appealable and not merely interlocutory.

JUDGMENT :

Heard learned counsel of both the parties.

2. The present Civil Miscellaneous Application has been filed for the following relief/s.

“ (a) To set aside the order dated 28.02.2025 passed in Guardian & Wards Case No. 03 of 2022 [CIS No. 03 of 2022] by the learned Principal Judge, Family Court, Purnea[Annexure P7 to the instant application] whereby and whereunder the application under Section 12 of the Guardians and Wards Act, 1890 preferred by the Respondent(wife) was allowed and the petitioner(husband) was directed to hand over the custody of the minor child Fahad Nawaz to the respondent(wife).

(b) To stay the operation of the order dated 28.02.2025 passed in Guardian & Wards Case No. 03 of 2022 [CIS No. 03 of 2022] by the learned Principal Judge, Family Court, Purnea (Annexure-P7 to the instant application], during the pendency of the present Civil Miscellaneous application.

(c) To pass any other order/orders in shape of a consequential relief to which the petitioner may be found to be legally entitled to the facts and circumstances of the instant case at hand.”

3. At the very outset, learned counsel appearing on behalf of the respondent has raised a preliminary objection with regard 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, 1890 . It was submitted that the proper remedy is to file an appeal under Section 19 of the Family Courts Act, 1984 .

4. 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.

5. 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.

6. Before adverting to the factual aspects of the matter, it is important to reproduce Section 12 and other provisions of Guardians and Wards Act, 1890 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.”

7. 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 Cour