Point of law: Section 47 of the Act, 1890 does not provide for an appeal against an order under Section 12 wherein the Court is empowered to pass interlocutory orders. Furthermore, Section 19 of the Act, 1984 while providing for an appeal from every judgment or order of a Family Court to the High Court both on facts and law specifically excludes interlocutory orders from its purview

JUDGMENT :

Yogendra Kumar Srivastava, J.

1. Heard Sri Mohammad Umar Khan, learned counsel for the petitioner and Sri Arun Kumar Pandey, learned counsel appearing for the sole respondent.

2. The present first appeal under Section 19 of the Family Courts Act, 1984[the Act, 1984] has been preferred against an order dated 01.10.2020 passed by the Principal Judge, Family Court, Kanpur Nagar in Case No.63 of 2020 (Zohaib Khan v Sana Afrin), whereby the application (paper no.6ga) filed by opposite party no.2 under Section 12 of the Guardians and Wards Act, 1890[the Act, 1890] has been allowed.

3. At the very outset an objection was taken with regard to the maintainability of the appeal filed under Section 19 of the Act, 1984 on the ground that the order under Section 12 of the Act, 1890 is in the nature of an interlocutory order and an appeal would not lie against such interlocutory orders.

4. We have heard learned counsel for the parties on the question of maintainability of the present appeal and have perused the records.

5. It would be worthwhile to take notice of the fact that proceedings under Section 25 of the Act, 1890 were initiated by the opposite party no.2 before the Principal Family Judge, Kanpur Nagar, registered as Case No.63 of 2020 for delivery of custody of his minor son. It was during the pendency of the aforesaid proceedings that an application (paper no.7ga) was filed under Section 12 of the Act, 1890 for making an interlocutory order for grant of visitation rights to enable the opposite party no.2 to meet the child. The aforesaid application for grant of interlocutory order under Section 12 came to be allowed in terms of the order dated 01.10.2020 passed by the Principal Judge, Family Court, Kanpur Nagar, against which the present first appeal has been preferred.

6. In order to decide the issue with regard to maintainability of the present first appeal against an order passed under Section 12 of the Act, 1890, which is of an interlocutory nature, the relevant statutory provisions may be adverted to.

7. The power to make an interlocutory order for production of minor and interim protection of person and property has been provided for under Section 12 of the Act, 1890 and in terms thereof the Court may direct that the person having custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. A visitation right or order which is essentially an order granting visiting times for the non-costodial parent with his or her children may also be granted in exercise of powers under Section 12 of the Act, 1890 and such an order granting visitation rights essentially enables the parent who does not have interim custody to be able to meet the child without removing him or her from the custody of the other parent. For ease of reference Section 12 of the Act, 1890 is being reproduced below:

“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 to be produced at such place and time and before such person as it appoints, 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 subsection (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