A reference to a larger bench is only warranted in the presence of conflicting decisions, not merely to create a precedent.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present writ petitions have been assigned to this Bench by the Hon’ble the Chief Justice, in view of the order dated 20.01.2025 passed by the learned Single Judge (Coram: Hon’ble Ms. Justice Nisha M. Thakore) referring the issue under the provisions of Rules 5 and 6 of the GUJARAT HIGH COURT RULES , 1993.

2. At the outset, we were inclined to remit the matters to the respective Benches, as we were of the opinion that the reference made by the learned Single Judge was uncalled for.

3. All the learned advocates appearing for the respective parties are ad idem on the view expressed by us, however, they have urged that since the issues raised in the present writ petitions have been pending for more than three to four years, the same may now be finally decided and further clarified.

SCOPE OF REFERENCE MADE BY THE LEARNED SINGE JUDGE :

4. Before addressing the substantive issue, we consider it necessary to deal with the reference made by the learned Single Judge vide common oral order dated 20.01.2025. The learned Single Judge has invoked Rules 5 and 6 of the GUJARAT HIGH COURT RULES , 1993, which are reproduced below:-

“Rule 5.

1. A Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two Judges, or a larger Bench.

2. A Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under sub-rule (1) above to a larger Bench.

Rule 6. Powers of Chief Justice to order hearing by a larger Bench

Notwithstanding anything contained in these Rules, the Chief Justice may by a special or general order direct that any matter or class of matters be placed before a Division Bench or a Special Bench of two or more Judges.”

5. Though learned Single Judge was conscious of the principles of judicial discipline and propriety, as laid down by the Constitution Bench in the case of Mary Pushpam Vs. Telvi Curusumary & Ors. , (2024) 3 SCC 224 , learned Single Judge, while expressing doubt over the legal precedent set by the Division Benches of this Court, requested Hon’ble the Chief Justice to place the matter before a Bench of larger quorum.

6. A bare perusal of the common oral order dated 20.01.2025 passed by the learned Single Judge, while making the reference, reveals that the matters were referred on two specific issues; (i) the maintainability of the First Appeals against the interlocutory / interim orders directing custody passed under Section 12 of the Guardian and Wards Act, 1890; and (ii) the maintainability of the First Appeals against the orders passed on applications under Section 24 of the HINDU MARRIAGE ACT , 1955.

7. Interestingly, albeit the judgments of the Division Benches of this Court, having binding precedential value, were brought to the notice of the learned Single Judge, and are in fact, referred to in the order, the learned Single Judge still proceeded to rely upon the Full Bench judgment of the Delhi High Court in the case of Dr. Geetanjali Aggarwal Vs. Dr. Manoj Aggarwal , (2024) 4 HCC (Del) 451, and referred the Issue No.(i) for consideration by a Larger Bench. However, since there exists no contrary or conflicting decisions of either Single Judge or of the Division Bench of this Court on the aforesaid issue, in our opinion, the reference was unwarranted, particularly in view of the Delhi High Court’s decision having only persuasive value.

8. With respect to another issue No.(ii), regarding the maintainability of an appe