Judgment:
M.R. Calla, J.
1. The present appeal under Section 19 of the Family Courts 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 he 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. It appears that a complaint was filed in this Court allegedly on the ground that Seema has not complied with the order of this Court and this Court (Honb'le Mohini Kapur, J,) under its order dated May 14, 1993 in the contempt matter allowed the custody of Nainika with the father and at the end of the order this Court said :--
'The Family Court shall decide about the custody of the child Nainika without being influenced by any observation made in this order. Till such time the child Nainika will remain with her father (petitioner).'
4. Before the aforesaid order was made it appears that an application under Section 7 of the Act of 1890 had already been made for custody of the child by Smt. Seema, the appellant herein, and in it interim custody was claimed under Section 7 of that Act. The learned Judge, Family Court under the impugned order dated June 30, 1993, said that it was not necessary to make an order about the interim custody of Nainika because she is under the guardianship of her natural guardian. The learned Judge, Family Court said that he did not see any reason to make any change in the order about the custody of the minor and will decide the matter finally.
5. A preliminary objection has been raised by the learned Counsel for the respondent that the appeal is not maintainable under Section 19 of the Act because the order of the learned Judge, Family Court is an 'inter-locutory order' and it has been provided under Section 19 of the Act that no appeal lies against an interlocutory order.
6. We will first deal with the preliminary objection about the maintainability of the appeal. A bare reading of Section 19 of the Act, more so, its Sub-section (1) will leave no manner of doubt that an appeal will not lie against an order which is interlocutory order of the Family Court. That apart, Sub-section (4) of Section 19 of the Act bars any appeal or revision to any Court from judgment any order or decree of a Family Court otherwise than as provided under Sub-sections (2), (3) of Section 19 of the Act. Therefore, if the impugned order is an 'interlocutory order' the appeal will not lie against the same under Section 19(1) of the Act. Learned Counsel for the appellant contends that it is not an 'Interlocutory order' in asmuchas so far as the matter of custody of the minor female child during the pendency of the application under Section 7 of the Act of 1890 is concerned, the matter stands finally disposed of. The rights of the parties for the interim custody of the minor during the pendency of the proceedings for final custody of the minor have been adjudicated and, therefore, an appeal lies against such an order and the bar under Section 19(1) of the Act is not attracted. Learned Counsel has tried to make distinction in between the order given on 'interim custody and the interlocutory order'. In support of his contention learned Counsel referred to the case of Amarnath & Others v. State of Haryana and Ors., AIR 1977 S.C. 2185. In that case the Court was dealing with the scope of Sections 397(2) and 482 Cr. P.C. The Court was also dealing with the question as to what is the connotation of the term 'interlocutory order' but it was so considering the said term only in so far as it was used under Section 397(2) Cr. P.C. The Court said :
'The term 'Interlocutory order' is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Disctionary 'inteilocutory' has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term 'Interlocutory order' in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court'.
In the case of V.C. Shukla v. State, AIR 1980 SC 962, Fazal Ali J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely (i) that a final order has to be interpreted in contra-distinction to an interlocutory order, and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. Learned Judge further said that these two principles will apply to civil as well as criminal cases. The aforesaid case came up for consideration before the Apex Court in the case of Usmanbhai Dawoodhai Memon and Ors. v. State of Gujarat, AIR 1988 S.C. 922 wherein the Apex Court was dealing with the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987. Dealing with the question as to whether or not granting or refusing bail is interlocutory order, and the Court in para 24 said that it is an interlocutory order and against the same appeal does not lie in the Supreme Court. Section 19(1) of the Act provides that an appeal shall lie from any judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts on law. Sub-section (2) of Section 19 provides that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. Sub-section (4) of Section 19 of the Act provides that except as provided under Sub-sections (1) and (2), no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. The Apex Court interpreted the term 'interlocutory order' even an order granting or refusing bail and said that no appeal will lie to the Apex Court under the aforesaid provision. A Division Bench of this Court in case of Minor Anu alias Atul v. Ratanlal Sharma and Ors., 1993 (2) WLC (1 Raj.) 156 dealing with Section 19(1) of the Act in a case of maintenance of the minor child said that no appeal will lie under Section 19(1) of the Act because an order ranting interim maintenance allowance is an interlocutory orderwithin the meaning of Sub-section (1) of Section 19 of the Act.
7. An application under Section 7 of the Act of 1890 has been filed and during the pendency of that application, under Section 12 of that Act an application, for interim custody of the minor child was filed. A bare reading of Sub-section (1) of Section 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 Section 47 of the Act of 1890 which deals with orders appealable, an order under Section 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 haying 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 Section 12 of the 1890 Act pending the application under Section 7 of that Act is concerned, it is an 'interlocutory order' and an appeal under Section 19(1) 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 Section 19(1) of the Act because the said order is 'Interlocutory order' whether this Court c'n 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 through 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 can quash thee order of the Tribunal. The said power under Article 227 of the Constitution being discretionary it is for the Court to exercise the discretion and no party can claim the exercise of such power as of right.
8. We have to examine as to whether it is a proper case in which we should exercise our powers of superintendence under Article 227 of the Constitution and whether the order giving the interim custody of the minor child to the father pending the disposal of the application under Section 7 of the Act of 1890 has been made in flagrant violation of the provisions of law and is perverse ?
9. The dispute relates to the custody of minor female child Nainika. We will not go into the dispute whether or not as alleged by Smt. Seema, mother of Nainika, Nainika was kidnapped by her father Sanjeev Godha from the custody of the mother or it is Seema who had taken away the minor from the custody of her father. It cannot be disputed that Seema is Rajput by caste and Sanjeev Godha is Jain by caste. The marriage took place on August 31, 1986 and out of the wedlock Nainika was born on October 4, 1989. The relations of the husband and wife became strained and an application No. 111/92 was filed by Smt. Seema against her husband Sanjeev Godha under Section 97 Cr. P.C. in the Court of Chief Judicial Magistrate. Nainika was produced before the learned Chief Judicial Magistrate. Under his order dated July 25, 1992 learned Chief Judicial Magistrate observing that so far as custody of minor is concerned it is to be decided by the Family Court, ordered that till the matter of custody of minor is decided by the Family Court it will be in the welfare of the minor that she remains in the custody of her mother Seema Godha. He also ordered that on holiday on every Saturday and Sunday Sanjeev Godha will take the custody of the minor Nainika from the house of Seema and can keep Nainika with him. The said order appears to have been made after making efforts of reconciliation and with the consent of the parties. The said order was challenged by Sanjeev Godha, the father of the minor in this Court by filing a revision petition against the aforesaid order of the learned Chief Judicial Magistrate and this Court (Hon'ble Mohini Kapur, J.) in S.B. Cr. Revision Petition No. 182/1992 under order dated December 14, 1992 observed that the child is about 3 years old and the mother can be said to be the better person to look after her. It was also observed that the arrangement that the father can keep the child for two days is also satisfactory. It was also observed by the learned Judge that when the father and mother both are having the custody of the child there are some chances for reconciliation between them. The learned Judge approved the arrangement made by the learned Chief Judicial Magistrate and disposed of the revision petition. A contempt petition was filed by Sanjeev Godha in this Court which was registered as S.B. Cr. Contempt Petition No. 164/1993 and in the said contempt petition it was alleged that Seema had taken the child forcibly on December 17, 1992 and her custody had not been transferred to the father Sanjeev Godha. Learned Judge while taking into consideration the fact that application for custody under Section 7 has already been filed by Seema in the Family Court, did not think it proper to give her any punishment for the contempt. She also observed that if reconciliation is not possible even inspite of differences, they should not ruin the life of the child by dragging her in their disputes and the above said learned Judge said that the Family Court shall decide about the custody of the child Nainika without being influenced by any observations made in that order and till such time the child Nainika will remain with her father. The learned Judge, Family Court, in his impugned order refused to give the interim custody of Nainika to Seema her' mother and observing that the application in respect of custody of minor is yet to be decided by the Court and he does not consider it necessary to make any order in respect of interim custody because the father is natural guardian of minor and that taking consideration of the circumstances it appears to him that when the custody was given to her she was unable to keep her in custody. He, therefore, maintained the order dated December 14, 1993 of the learned Judge of this Court under which till the disposal of the application for custody by the Family Court, the custody was given to Sanjeev Godha It is that order which has been challenged by the appellant herein.
10. It was contended by the learned Counsel for Seema that the order of the learned Judge, Family Court refusing to give the interim custody of the minor to Seema is against the provisions of the Act of 1890 and against justice inasmuch as a girl who is four years of age should have been given in the custody of the mother as the mother alone can look after alround development of the girl of tender years. Learned Counsel in the connection has referred to the provisions of law as well as case-law which we shall discuss. Learned Counsel for Sanjeev Godha on the other hand contended that Seema has no source of income of her own and she had not admitted Nainika in the school which fact is denied by the learned Counsel for Seema who had shown to us some of the receipts of school of the child, namely 'the study'. It was further contended by the learned Counsel for Sanjeev Godha that the father and grand father and other members of the family are too much attached to Nainika and she will be looked after in the family of Sanjeev Godha better. The welfare of the child, according to the Counsel for Sanjeev Godha will be if her custody is given to the father. Under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short, the Act of 1956) the natural guardian of a Hindu minor in respect of the minor's person and property is father and after him is mother. But clause (a) of Section 6 of that Act provides that the custody of the minor who has not completed the age of five years shall ordinarily be with the mother. Therefore, Nainika being less than five years of age despite the fact that Sanjeev Godha is natural guardian under Section 6 of the Act of 1956, ordinarily the custody of Nainika should be with her mother Smt. Seema Godha. The law is settled that despite the aforesaid provision contained in Section 6 of the Act of 1956 or for that matter any provision contained in the Act of 1890 while deciding the case of interim custody the paramount consideration of the welfare of the minor is to be looked into and all other considerations are secondary. Thus, neither the father nor the mother can claim absolute right of the custody of the minor child. In case the minor is capable of making intelligent preference, the wishes of minor are also to be taken into consideration. But so far as Nainika is concerned, she, looking to her tender age, cannot be said to be intelligent enough to make intelligent preference, and therefore we did not consider it proper to get her wishes also. But we saw that she was quite comfortable with her mother when under our order her custody was given from the father Sanjeev Godha to her in the Court. She appears to be comfortable with her father as well as grand-father also who were present in the Court.
11. We have already said that ordinarily the custody of a minor who has not attained the age of five years should be with the mother and we are of the opinion that so far as female child is concerned this consideration is all the more important because a female child of tender age i.e., 3 or 4 years age needs love, affection and care of the mother. The Apex Court in the case of Pushpa Singh v. Inderjit Singh, 1990(Supp) SCC 53 was dealing with a child of less than five years of age and said that the child undoubtedly needs affection of his mother for which there is no adequate substitute. In that case the High Court looking to the provisions of Section 6(a) of the Act of 1956 had given the custody of the child to his father. The Apex Court said--
'The High Court was clearly in error in observing that the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 cannot be attained with importance. The view of the High Court ignores the very mandate of the legislature and runs counter to the mandate'.
The Apex Court set aside the order of the High Court giving custody of the child to the father. It can, therefore, be said from the aforesaid decision of the Apex Court that the Apex Court took into consideration the mandate of the legislature contained in the proviso to Section 6(a) of the Act of 1956 that the custody of the minor who has not completed the age of five years shall ordinarily be with the mother. The Apex Court in the case of Chandra Kala Menon v. Vipin Menon (1993) 2 SCC 6, was dealing with a case of custody of a minor daughter and said though the father is natural guardian of the minor, but so far as the question of her custody is concerned, it is to be decided not on the basis of legal rights of the parties, but on the sole criterion of the interest and welfare of the minor. No doubt the Apex Court was dealing with a case where the divorce petition had been filed and the question arose for custody of minor daughter. The Court said that efforts of reconciliation failed and there was no scope for settlement between the parties. The Court while granting decree for divorce with the consent of the parties dissolving the marriage also took into consideration that the father was natural guardian but said that--
'It is no doubt correct that Vipin Menon being the father of the minor child is her natural guardian. The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of a child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. Soumya is an intelligent girl. We have talked to her in the Chamber and gathered her wish and sentiments. She has ample love and affection for both her parents. She likes her maternal grand-parents also. After examining every possible angle in this respect, we have come to the conclusion that it would be in the interest and welfare of minor Soumya that she would be permitted to be in the custody of her mother Chandrakala.'
The Court also recorded the undertaking of Chandrakala and her father to bring the daughter from America once a year in India so that the father can have the company of his daughter. It will be clear from the aforesaid case law on the point which can be said to be the settled position of law that while deciding the custody of the minor the paramount consideration is as to what would best serve her interest and nobody's right will have predominance over it. In other words, there can be no substitute for love, affection and care in so far as the minor, moreso, a daughter who has not completed the age of five years, is concerned and that is why it is the mandate of legislature contained in Section 6(a) of the Act of 1956 that ordinarily the custody of the minor who has not completed the age of five years shall be with the mother. The learned Judge, Family Court has observed that he will not like to disturb the order of this Court made in the contempt petition to which reference has already been made in the earlier part of this orders, in so for as interim custody is concerned, because the father is natural guardian. In taking the aforesaid view the learned Judge, Family Court, ignored the mandate of the legislature contained in proviso to Clause (a) of Section 6 of the Act of 1956.
12. No doubt it appears that the mother of the minor girl has no independent income of her own but if this would be the consideration to deny the interim custody and we may say even the final custody of the minor who is less than five years of age, who needs love, affection and care which can better by given be the mother alone, in most of the cases in India where the mothers have no independent source of income of their own, will be deprived of the custody of their minor daughters of tenders. In our opinion merely because the mother may not have independent income, it cannot be the reason to deprive her of the custody of the minor daughter who has not completed five years of her age, if it is otherwise in the welfare of the minor which, as said earlier, is the paramount consideration of the Court. If the mother does not have independent source of her income and she has the custody of the minor or the Court gives her custody of the minor, she can claim maintenance from the father in case the father has means to support the minor and if he refuses or neglects to maintain the child. In our opinion, there is no reason as to why the mandate of the legislature as contained in the proviso to Clause (a) of Section 9 of the Act of 1956 should not have governed the case. There is no substitute for the love, affection and care of the mother for her minor daughter Nainika who has not attained the age of five years. The order of the learned Judge, Family Court, is perverse and against the mandate of the legislature as aforesaid.
13. Consequently, in exercise of our powers under Article 227 of the Constitution of India we hereby set aside the order dated June 30, 1993 of the learned Judge. Family Court and give the interim custody of minor Nainika to her mother Seema till the disposal of her application under Section 7 of the Guardians and Wards Act, 1890, which we direct the learned Judge, Family Court, to dispose of expeditiously. We are of the opinion that change of the custody during a week, for five days with the mother and two days with the father, will not be in the interest of the minor Nainika, as it may disturb the minor emotionally and may also adversely affect her studies. We, therefore, direct that the father and even the grandfather and grand-mother of the minor, if they so like, will have a right to visit Nainika at the house of Seema on every Sunday and may be with her for few hours. This arrangement shall continue till the disposal of the application of Seema filed under Section 7 of the Act of 1890 in the Court of learned Judge, Family Court. Costs made easy.