The Delhi High Court held that mere nomenclature of any order, whether as “interlocutory or intermediate”, would not determine the remedy available against the order as the same would depend upon the nature and attributes of the same.

The Court was dealing with a petition filed by a man to set aside the order of the Family Court and to direct his wife not to remove their children from the jurisdiction of the High Court and India, without seeking leave of the Family Court and without filing the detailed itinerary and to deposit passports of children with the court.

A Vacation Bench of Justice Neena Bansal Krishna observed, “It may be observed that from the authorities discussed above, mere nomenclature of any order, whether as “interlocutory or intermediate”, would not determine the remedy available against the Order as the same would be dependent upon the nature and attributes of the impugned Order. A natural corollary to the above is that there may be a category of 'interlocutory orders' deciding matters of moment between the parties, having an impact on the vital rights of the parties and having the trappings of finality. Such "interlocutory orders‟, which are not purely interlocutory or procedural in nature, would be appealable under section 19 of the Act 1984.”

Senior Advocate Siddharth Luthra represented the petitioner while Advocate Manali Singhal represented the respondent.

Factual Background -

The petitioner i.e., father had filed a Guardianship Petition under Sections 7, 10, and 25 of the Guardian and Wards Act, 1890 seeking his appointment as the sole lawful guardian of the minor children as well as sought their permanent custody and relief to restrict the respondent i.e., mother from removing children from the jurisdiction of the High Court. The said petition was accompanied with an application under Section 12 of the said Act seeking interim custody of children and ex parte order for restraining the mother.

The Family Court while considering the prayers and in order to ensure that the parens patriae jurisdiction is exercised in the most effective manner, directed the British School where the two children were studying, to not give any Transfer Certificate or any other document relating to the transfer to either of the parents without the permission of the court. Aggrieved by this order, the father by way of the writ petition, claimed that there was an imminent threat of the removal of the minor children from the place of ordinary residence in Delhi and that the Family Court failed to restrain the mother from leaving the jurisdiction of India along with children.

The High Court after hearing the arguments of the counsel said, “Be that as it may, fundamental test for determining whether an appeal or writ is maintainable against an Order it needs to be examined if an order is an “interlocutory order” or an “intermediate order”. It emerges that if the impugned order is determining the “matters of moment having attributes of finality” then the Appeal under Section 19 of the Act 1984, challenging the same, would be maintainable. However, if the Order is merely procedural in nature or is not determinative of any issues between the parties, then it shall be amenable to the Writ jurisdiction under Article 227 of the Constitution of India.”

The Court, however, noted that interlocutory orders which do not impinge upon the substantive rights of the parties and are either procedural or temporary or does not decide any important aspect of trial between the parties or does not have the trappings of a final judgment, would be amenable to Writ jurisdiction under Article 227 of the Constitution.

“The only observation that can be of some relevance in the impugned Order is that the “Transfer Certificate” or any other document for transfer of the school of the minor children, be not issued by the British School to either parent. Applying the afore-discussed parameters, this Order cannot be termed as an intermediate order having the trappings of a final judgment on any issue between the parties. So being the case, this Order is not challengeable under Section 19 of the Act, 1984, and the only remedy to assail the same would be by way of a Writ Petition under Article 227 of the Constitution of India”, held the Court.

The Court further took note of the fact that the respondent herself intimated the petitioner about her intending to travel to Dubai via WhatsApp Message and merely because the children are British Passport Holders, cannot be considered as any reason for the petitioner to harbour such apprehension.

“Furthermore, as has been submitted on behalf of the respondent that the respondent herself has invoked and submitted herself to the jurisdiction of this Court in Delhi by filing the Petition under Section 12 of the D.V. Act, 2005, wherein the respondent herself has sought a relief that the petitioner herein be restrained from taking away the minor children out of jurisdiction of this Court. The apprehension of the petitioner does not have any basis”, added the Court.

Accordingly, the High Court disposed of the petition and allowed the respondent along with minor children to travel to Dubai, subject to an undertaking by way of an affidavit, being filed in the court.

Cause Title- X v. Y (Neutral Citation: 2023:DHC:9425)

Click here to read/download the Judgment