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RAJASTHAN HIGH COURT
Vijay Bishnoi, Sudesh Bansal, JJ.
Himanshu Chordia - Appellant
Versus
Arushi Jain - Respondent
Civil Miscellaneous Appeal No. 796 of 2021
Decided On : 20-10-2021
CUSTODY - GUARDIAN AND WARDS ACT - The court upheld the Family Court's decision to deny interim custody of the minor son to the appellant, emphasizing the child's welfare amid the COVID-19 pandemic. The court interpreted Section 12 of the Guardian and Wards Act, 1890, allowing for temporary arrangements like video conferencing while prioritizing the child's best interests over immediate custody.
Fact of the Case:
The appellant filed a misc. appeal against the Family Court's order denying him interim custody of his minor son under the Guardian and Wards Act, 1890, citing the ongoing COVID-19 situation.
Finding of the Court:
The court found no grounds for interference with the Family Court's decision, which prioritized the welfare of the child and allowed limited video contact instead of custody.
Issues: Whether the Family Court's decision to deny interim custody was appropriate given the circumstances of the COVID-19 pandemic and the welfare of the minor child.
Ratio Decidendi: The court emphasized that the welfare of the child is paramount in custody matters, and the current health crisis justified the Family Court's cautious approach in denying interim custody.
Result: The misc. appeal was dismissed, and the stay petition was also dismissed.
JUDGMENT
1. This misc. appeal has been filed by the appellant being aggrieved with the order dated 20.07.2021 passed by the Family Court No.1, Udaipur (hereinafter to be referred as ?the court below?) in Misc. Case No.387/2020, whereby the application preferred on behalf of the appellant under Section 12 of the Guardian and Wards Act, 1890 seeking interim custody of his minor son has been disposed of.
2. The court below has given direction to the respondent to provide details regarding school record of the minor son and also allowed the appellant to have video conferencing with his minor son for two days in a week through counselor. The court below has further observed that looking to the present COVID-19 situation and taking into consideration the welfare of the minor child, it would not be appropriate to grant interim custody of the minor son of the appellant to him at present, however, the appellant can move fresh application seeking interim custody of his minor son after some time when the situation becomes normal.
3. Having heard the appellant and after perusing the impugned order as well as the material available on record, we don't find any case for interference.
4. Hence, this misc. appeal is dismissed.
5. Stay petition also stands dismissed.
AI
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.
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.
Custody orders are not permanent; the welfare of the child is paramount in custody and visitation matters.
Interim custody orders must consider both the welfare of the child and the visitation rights of the non-custodial parent.
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.
The power of the Magistrate to grant interim custody under Section 21 of the DV Act is independent of the provisions of the Guardians and Wards Act.
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.
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.
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