SEEMA Vs. SANJEEV GODHA

JUDGEMENT

(1.) THE present appeal under Section 19 of the Family Court Act, 1984 (for short, the Act) arises out of the order dated June 30, 1993 of the learned Judge, Family Court, made under Section 12 of the Guardians and Wards Act, 1890 (for short, the Act of 1890 ).

(2.) SEEMA, the appellant herein, is admittedly the wife of respondent Sanjeev Godha and out of the wedlock a female child 'nainika' was born on October 4, 1989. The relations between SEEMA and her husband, Sanjeev Godha, some how became strained and according to SEEMA she started living with her parents. On June 8, 1992, as per the case of Smt. SEEMA, while Nainika was living with her the respondent Sanjeev Godha took her from her custody by force when she was hardly 2 years and 2 months of age. He also threatened her with dire consequences if she makes an attempt to claim the custody of the girl. When she went to the house of the respondent on July 11, 1992 in the absence of the respondent to meet her daughter, the daughter, Nainika, returned with her but again the respondent took her by force. SEEMA filed an application on July 13, 1992 before the Chief Judicial Magistrate, Jaipur City under Section 97 Cr. P. C. and on a search warrant being issued the girl was produced before him. Thereafter, on July 25, 1992 with the consent of the parties, Chief Judicial Magistrate made an order that till the matter of guardianship is decided by the Family Court the girl will remain with the appellant and on holidays of Sunday and Saturday she will remain with the respondent. The said order was upheld in revision by this, Court on December 14, 1992.

(3.) AN application under Section 7 of the Act of 1890 has been filed and during the pendency of that application, under Sec. 12 of that Act an application for interim custody of the minor child was filed. A bare reading of sub-section (1) of Sec. 12 of the Act of 1890 will show that the,court is empowered to make an interim order for protection of the person or property of the minor. It will be seen that under Section 12 more than one order for temporary custody and protection of person and property can be made. Though, we are dealing with an appeal under Section 19 (1) of the Act, but even under Sec. 47 of the Act of 1890 which deals with an order made under Sec. 12 for temporary custody and protection of the person of the minor has not been made appealable. Before coming into force of the Act a revision might have been maintained and perhaps was maintainable but the matters of custody of minor having come under exclusive jurisdiction of the Family Courts under the Act, it is the Act which will apply and therefore we are of the opinion that so far as the order of the court relating to temporary custody under Sec. 12 of the 1890 Act pending the application under Sec. 7 of that Act is concerned, it is an 'interlocutory order' and an appeal under Sec. 19 (10) of the Act will not be maintainable. But during the course of arguments we had put to the learned counsel for the parties the question whether or not in a given case if the order of the Family Court is such which is perverse and is one which could not have been made under the provisions of law and an appeal does not lie under Sec. 19 (1) of the Act because the said order is 'interlocutory order' whether this court can exercise its power under Article 226 or 227 of the Constitution of India. Learned counsel for the respondent could not satisfy us that this power could not be exercised. We are of the opinion that Article 227 of the Constitution of India confers power on this court of superintendence over all courts and tribunals throught the territory of Rajasthan and in exercise of those powers, which powers have no doubt to be exercised most sparingly only in cases where grave injustice would be done unless this court interferes, this court can quash the orders of the Tribunal. The said power under Article 227 of the Constitution being discretionary it is for the court of exercise the discretion and no party can claim the exercise of such power as of right.