Orders in custody matters are interim and non-interim orders where the rights of parents are not finally resolved: Gujarat High Court

The Gujarat High Court recently held that in a dispute over the custody of a minor child, an order which does not conclusively resolve the issue of custody shall be deemed to be an interim order and not an interim injunction and made it clear that an appeal against a Interim order is not valid according to Section 19 of the Family Court Act.

The division bench of Justices Ashutosh Shastri and Divyesh A Joshi emphasized that an interim injunction does not terminate the proceedings or finally decide on the rights of the parties, and concluded that the rights regarding the return of custody of the child were not finally decided by the impugned order.

“We are of the clear opinion that as long as the application for return of the child is not finally decided, the impugned order cannot be considered as an interim order, but only an interim order, as the impugned order is an interim order “No final decision will be made regarding the applicant’s custody rights, nor will the main application be discontinued. Since this is the case, it is not possible for us not to interpret the impugned order as an interim injunction.”

The observations were made in an appeal filed under Section 96 of the CPC and Section 19 of the Family Court Act, in which the appellant challenged the validity of an order passed by the Principal Family Court.

The complainant and the defendant married in 2014 and had a son in 2018. Over time, differences of opinion arose between them and the defendant wife allegedly left the marital home unjustified.

After her departure, her son remained with the complainant’s husband, who assumed responsibility for her son’s welfare, academic obligations and transportation as sole carer.

They then agreed that their son should spend the weekends at the defendant’s apartment so that the child’s school schedule would not be disrupted.

During the winter holidays, the defendant asked the complainant to allow her son to stay with her. Relying on the defendant’s intentions, the complainant took his son to the defendant’s residence.

However, when the complainant later contacted his wife to arrange for their son’s return, the respondent expressed that she was unwilling to reunite her son with the complainant.

Aggrieved by this, the applicant filed an application for custody of her minor son under Sections 7, 17 and 25 of the Guardians and Wards Act read with Section 13 of the Hindu Minority and Guardianship Act and Section 7 of the Family Courts Act. In addition, an application for an interim injunction was filed.

The applicant submitted that he had received a notice from the Family Court at Anand informing him of an application filed by the respondent-wife under Section 7 of the Guardians and Wards Act. Although mediation was requested, it proved unsuccessful and was therefore referred back to the family court.

The parties then jointly proposed an arrangement for the custody of their minor son, according to which he would stay with the wife from Monday to Friday and with the complainant on weekends.

They followed this rule throughout the proceedings until the hearing of the motions for preliminary injunction and preliminary injunction.

However, the appellant claims that the main family judge went beyond the scope of the application in his decision. The complainant was upset by this alleged discrepancy and appealed.

The main issue before the Court revolved around determining whether the impugned order qualifies as an interim order or interim injunction and, consequently, whether it is subject to Section 96 of the CPC or Section 19 of the Family Court Act for the purpose of lodging a first appeal.

The court referred to a number of precedents to clarify the distinction between interim orders and preliminary injunctions, which had already addressed this issue.

It examined the requests made in the main application, which were aimed at regaining custody of the son, and determined that the opponent could not remove the child from the court district without permission and permanently deter the opponent from such actions.

However, in an application in this regard, it was requested that the opponent be directed to return the custody of the son to the applicant. In the meantime, the applicant requested full visitation rights with his minor son during the pendency and final determination of the application.

Therefore, the court concluded that the relief sought in the main application was aimed at regaining custody of the child and imposing restrictions on the opponent’s actions within the scope of the court’s jurisdiction. Conversely, the interim prayer in the relevant application concerned temporary measures relating to child custody and visitation.

Since the child custody decision was not finalized, the court concluded that it was not a temporary order but a temporary restraining order. Therefore, no first appeal could be lodged against the order.

“It appears that this decision, which was challenged on appeal, does not definitively resolve the issue of visitation or custody of the child.”

It has been held that an interim injunction only decides on a particular aspect or issue or matter in a proceeding, suit or main application, but thereby does not bring to an end the main dispute itself and as such when the concept of interim injunction given Interpreted in a logical and natural sense, this would not decide the finality of the matter.

The court underlined the legislative intent behind the Family Courts Act 1984, emphasizing its purpose to expedite the resolution of family disputes and protect associated rights. It also noted that Section 19 of the Act clearly states that an interim order cannot be appealed even if the modification of such orders is prohibited.

“At this point, we can state that the decision of the Coordinating Court is undoubtedly binding, but when the facts are completely different and the court, with the above observation, has considered that the order passed in these proceedings has definitively decided the rights and therefore in a “Since a different situation prevails in this case, we are unable to apply these observations as a straitjacket formula without ignoring the different factual situation,” the court concluded, dismissing the first appeal as untenable.

The appeal was therefore dismissed.

Look: Mr. Jal Unwala, Senior Counsel for Ms. Tejal A Vashi for Appellant No. 1, Mr. Nirav C Thakkar For Mr. Bhavin J Satwara for Respondent No. 1

LL quote: 2023 LiveLaw (Guj) 155

Case title: Rajan Ankleshwaria v. Ankleshwaria is to blame

Case No.: R/First Appeal No. 3311 of 2023

Click here to read/download the judgment