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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 923 of 2025 ==========================================================
KIRANBHAI RAJUBHAI PRAJAPATI & ORS.
Versus PRAJAPATI HETALBEN D/O SURESHBHAI W/O KIRANBHAI RAJUBHAI PRAJAPATI ==========================================================
Appearance:
MR VIRAT POPAT FOR RAJPUROHIT R BHAWARLAL(9420) for the Appellant(s) No. 1,2,3 MR VO JOSHI(5883) for the Defendant(s) No. 1 ==========================================================
CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Date : 19/03/2025
ORDER :
(BIREN VAISHNAV, J.)
Heard Mr. Virat Popat, learned counsel for Mr. Rajpurohit R. Bhawarlal, learned counsel for the appellants and Mr. V.O. Joshi, learned counsel appears on Caveat.
2. Challenge in this appeal is to an interim order dated 17.03.2025 passed by learned Family Court, Deesa below Exhibit-6 in CMA (DC) No. 47 of 2024, by which the learned Family Court directed the appellants to hand over the custody of minor child Vedant to the respondent today, by 2.00 p.m.
3. We had taken up the appeal for hearing in first session. Mr. Virat Popat, learned Counsel for the appellants had requested that interaction be permitted with the counsel in camera. Therefore, we kept the matter for hearing in Chamber at 2.30 p.m.
4. Having heard Mr. Popat, learned counsel for the appellants in the Chamber, he has taken us also now, to the order passed by Family Court. He would submit that the order and the direction issued on 17.03.2025 of handing over custody on the ground of welfare of the child is without any premise inasmuch as, nothing regarding shared custody or visitation to the father has been kept open by the interim order.
5. Mr. V.O. Joshi, learned Counsel for the respondent would support the interim order.
6. Prima facie, the issue whether an appeal against an interim custody order passed under an application under Section 12 of the Guardian and Wards Act is at large particularly, when a Division Bench of this Court in case of Rajan Ankleshwaria S/o Manojkumar Babulal Ankleshwariya vs. Vinni Ankleshwaria D/o Mahesh Gulshanrai Malhotra W/o Rajan Ankleshwaria passed in First Appeal No.3311 of 2023 held that the orders passed by the Court under Section 12 of the Guardian and Wards Act are not appealable under Section 19 of the Family Courts Act.
7. Having perused the order under challenge, we find that considering the paramount welfare of the child, the interim order was passed. However, considering the fact that no arrangement for visitation of the father is made, it is clarified that the custody of the child be handed over to the respondent by 8.00 p.m. today.
8. The visitation rights are permitted to the appellant-father, at a place convenient to both the parties, on Saturday from 10.00 a.m. to 5.00 p.m. and Sunday from 10.00 to 5.00 p.m. The interim order is modified to this extent only.
9. Stand over to 20.3.2025 to report compliance.
AI
Interim custody orders must consider both the welfare of the child and the visitation rights of the non-custodial parent.
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.
The welfare of the child is the primary consideration in custody disputes, and temporary arrangements may be made in light of extraordinary circumstances such as a pandemic.
The court clarified that an order granting visitation rights is an intermediary order, thus appealable under Section 19 of the Family Courts Act, 1984.
The court emphasized the discretionary power of the court in making interlocutory orders in matters of guardianship and wards, and the importance of considering the best interest of the minors.
A custody order under the Guardians and Wards Act, if a result of a full trial, is appealable and not merely interlocutory.
Interlocutory orders under the Family Courts Act are not appealable; custody decisions must prioritize the welfare of minors by considering their perspectives.
Interim custody orders are not appealable under section 19 of the Family Courts Act, 1984, as they are considered interlocutory and do not reflect a final judgment.
Minor child does not have coping skills or intellectual ability to understand issues between adult relationship or parents unhappiness.
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