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IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, SANGITA DHINGRA SEHGAL, JJ.
Colonel Ramesh Pal Singh - Appellant
Versus
Sughandhi Aggarwal - Respondent
Mat App (F C) No. 211 of 2017; Civil Miscellaneous Application No. 44390 of 2017
Decided On : 01-10-2019
G & W Act - Custody of Children - Section 12 of the Guardians and Wards Act, 1890 - 12, 47 - The court granted the custody of both children to the respondent after the completion of the current session 2017-2018 and drew out a vacation arrangement. The appellant challenged the order, arguing that it was a 'judgment' or 'order' as it finally decides the issue between the parties. The respondent contended that the order was an 'interlocutory order' and not maintainable under Section 19(1) of the Family Courts Act. The court examined the provisions of the G & W Act and the Family Courts Act, and the applicability of the Shah Babulal Khimji case. It concluded that the order under challenge was an interlocutory order and no appeal would lie against it.
Fact of the Case:
The parties were married and had two children. The respondent filed a petition under Section 7, 9 & 25 of the G & W Act for custody of the children. The Family Court granted interim custody to the respondent. The appellant challenged the order, arguing that it was a 'judgment' or 'order' as it finally decides the issue between the parties.
Finding of the Court:
The court found that the order under challenge was an interlocutory order and no appeal would lie against it under Section 19(1) of the Family Courts Act.
Issues: The main issue was whether the order granting interim custody of the children to the respondent was a 'judgment' or 'order' as it finally decides the issue between the parties, or an 'interlocutory order' not maintainable under Section 19(1) of the Family Courts Act.
Ratio Decidendi: The court examined the provisions of the G & W Act and the Family Courts Act, and the applicability of the Shah Babulal Khimji case. It concluded that the order under challenge was an interlocutory order and no appeal would lie against it.
Final Decision: The court dismissed the appeal, holding that the order under challenge was an interlocutory order and not maintainable under Section 19(1) of the Family Courts Act.
JUDGMENT :
Sangita Dhingra Sehgal, J.
The appellant/husband is aggrieved by the order dated 16.10.2017 passed by the Family Courts on an application filed by the respondent/wife under Section 12 of the Guardians and Wards Act, 1890 (hereinafter referred to as G & W Act). By way of the impugned order the Family Courts granted the custody of both the children to the Respondent after the completion of current session i.e. 2017-2018 and also drew out a vacation arrangement of summer, winter and other holidays being Deepawali and Holi. The relevant portion of the order dated 16.10.2017 reads as under:-
"15. In the given facts and circumstances the custody of both the kids needs to be given to the petitioner after the final examination of both the kids in current session 2017-2018 is over and the same is ordered accordingly.
16. The transfer certificate and the annual progress cards be immediately handed over by the respondent to the petitioner on getting the same to facilitate admission of both the kids in a school at Delhi in the next academic session.
17. As regards the vacations falling in summer, winters, Deepawali, Holi, the petitioner shall hand over/ get back the custody of the kids to/from the Respondent no.2 at her residence at Delhi for spending 60% of the vacation by the kids with the respondent from the date of commencement of the vacation. The Respondent shall accordingly pick up and drop the kids at the residence of the petitioner. The pick up and drop off time would be 11 AM and 5 PM respectively.
18. The parties are allowed to take the kids to any place in India or abroad during the vacation period and otherwise but would provide their contact number, itinerary of the programme to each other. The petitioner will inform the respondent about the school report, extracurricular activities of the kids by emailing the documents. Both the parties will report contemporaneously through email each other about doctors attending to kids, as and when needed by the kids.
19. For December vacation 2017 this year the petitioner is given the custody of the kids for 60% of the vacation mentioned from the first date of the vacation. The respondent shall e-mail the schedule of the school vacation to the petitioner the day the same is received from the school. The petitioner shall pick and drop the kids for winter vacation from Mohali. Parties are given liberty on their own to make mutual adjustments in period of respective share of their vacations for the benefit of the kids.
20. For celebrating Diwali 2017 failing on 19.10.2017 the petitioner is allowed to visit the kids at Mohali and can celebrate the festival at any place to be decided mutually by the parties from 06.00PM to 09.00 PM. The respondent and parents of both the parties are allowed to remain present for the Diwali celebrations.
21. During, the custody of the kids with the petitioner, she would allow the kids to have audio video interaction of the kids with the respondent for 15 minutes daily between 6 PM 8 PM. This arrangement can be mutually changed by the parents as per their mutual convenience and convenience of the kids."
2. The necessary facts to be noticed for the disposal of the present appeal are that the marriage between the parties was solemnized on 22.12.2002 at New Delhi in accordance with Sikh rites and rituals. Two children namely Suhani aged 10 years and Shabad aged 7 years were born out of the wedlock. The parties separated in the year 2015. That on 11.08.2015, the appellant took the children with him to Kashmir and thereafter shifted to Bikaner alongwith his children and his mother. The Respondent preferred a petition under section 7, 9 & 25 of the G & W Act, 1890 for the custody of the minor children. Along with the main petition filed under the aforesaid petition, the respondent also preferred an application under Section 12 of the G & W Act in Delhi for the interim custody of her children. The Appellant also filed a case under G & W Act at Bikaner Rajasthan se
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