[Cites 30, Cited by 0]
Patna High Court
Harsha @ Harsha Sharma vs Abhinav Singh on 22 January, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.539 of 2025
======================================================
Harsha @ Harsha Sharma Wife of Abhinava Singh and D/o Late Shyam
Sunder Sharma, resident of Flat No. 304, B Block, Shobha Niketan
Apartment, Aarah Garden Road, Jagdeo Path, P.O.-B.V. College, P.S.-
Rupaspur, District-Patna at present residing at Flat No. 004, Staff Quarter,
Chandragupt Institute of Management, Patna.
... ... Petitioner/s
Versus
Abhinav Singh Son of Ramashraya Prasad Singh, Resident of Flat No. 404,
Sai Apartment, Ganesh Puri Colony, Sushwahi near Navnita Kunwar School,
beside Union Bank ATM, Hyderabad Gate, P.S. and District Varanasi (Uttar
Pradesh).
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ramakant Sharma, Sr. Adv
Mr. Chaudhary Prem Kumar Thakur, Adv
For the Respondent/s : Mr. Amit Srivastava, Sr. Adv
Mr. Utsav Anand, Adv
Mr. Girish Pandey, Adv
Mr. Akash Ambuj, Adv
Mr. Dewendra Narayan Singh, Adv
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
Date : 22-01-2026
Heard learned counsel of both the parties.
2. At the very outset, learned counsel appearing
on behalf of the respondent has raised a preliminary
objection to the maintainability of the present Civil
Miscellaneous Application, contending that no such Civil
Miscellaneous Application can lie against an order passed
under Section 12 of the Guardians and Wards Act. It was
submitted that the proper remedy is to file an appeal under
Section 19 of the Family Courts Act, 1984.
3. In order to buttress his argument, learned
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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counsel appearing on behalf of the respondent has placed
reliance on the judgment passed in the case of Dr.
Geetanjali Aggarwal vs. Dr. Manoj Aggarwal, reported in
(2024) 4 High Court Cased (Del) 451 : 2024 SCC Online
Del 7220.
4. Per contra, learned counsel appearing on behalf
of the petitioner submits that the present Civil
Miscellaneous Application is maintainable against the
aforesaid order, as the nature of the impugned order is
purely interlocutory.
5. Before adverting to the factual aspects of the
matter, it is important to reproduce Section 12 and other
provisions of Guardians and Wards Act, under which the
Impugned Order has been passed.
"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
and may make such order for the
temporary custody and protection of the
person or property of the minor as it
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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thinks proper.
(2) If the minor is a female who
ought not to be compelled to appear in
public, the direction under sub-section
(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 of
the property of a minor is entrusted
to dispossess otherwise than by due
course of law any person in
possession of any of the property."
6. As per the objection raised by learned counsel
for the respondent, the said impugned order, having been
passed by the Family Court, is appealable. Further, under
Section 47 of the Guardians and Wards Act, 1890, the
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
4/32
orders which are appealable have been specifically
enumerated, as under:--
" 47. Orders appealable - An
appeal shall lie to the High Court
from an order may be a Court, -
(a) under section 7, appointing
or declaring or refusing to appoint
or declare a guardian; or
(b) under section 9, sub-section
(3), returning an application; or
(c) under section 25, making or
refusing to make an order for the
return of a ward to the custody of
his guardian; or
(d) under section 26, refusing
leave for the removal of a ward
from the limits of the
jurisdiction of the Court, or
imposing conditions with
respect thereto; or
(e) under section 28 or section
29, refusing permission to a
guardian to do an act referred to
in the section; or
(f) under section 32, defining,
restricting or extending the
powers of a guardian; or
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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(g) under section 39, removing
a guardian; or
(h) under section 40, refusing
to discharge a guardian; or
(i) under section 43, regulating
the conduct or proceedings of a
guardian or settling a matter in
difference between joint
guardians, or enforcing the
order; or
(j) under section 44 or section
45, imposing a penalty."
7. In Family Court Act, 1984 also there is statutory
provision regarding jurisdiction of the Court and appeal u/s
07 and 19 respectively, which are as follows :-
" 7. Jurisdiction. - (1) Subject
to the other provisions of this
Act, a Family Court shall -
(a) have and exercise all the
jurisdiction exercisable by any
district court or any subordinate
civil court under any law for the
time being in force in respect of
suits and proceedings of the
nature referred to in the
Explanation; and
(b) be deemed, for the
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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purposes of exercising such
jurisdiction under such law, to
be a district court or, as the case
may be, such subordinate civil
court for the area to which the
jurisdiction of the Family Court
extends.
Explanation. - The suits
and proceedings referred to in
this sub-section are suits and
proceedings of the following
nature, namely: -
(a) ..............
(b) .............
(c) ............
(d) .........
(e)...........
(f) ...............
(g) a suit or proceeding in
relation to the guardianship
of the person or the custody
of, or access to, any minor.
(2) Subject to the other
provisions of this Act, a
Family Court shall also have
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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and exercise -
(a) the jurisdiction
exercisable by a Magistrate
of the first class under
Chapter IX of the Code of
Criminal Procedure, 1973 (2
of 1974); and
(b) such other jurisdiction as
may be conferred on it by
any other enactment."
"19. Appeal. - (1) Save
as provided in sub-section (2)
and notwithstanding anything
contained in the Code of
Civil Procedure, 1908 (5 of
1908) or in the Code of
Criminal Procedure, 1973 (2
of 1974) or in any other law,
an appeal shall lie from every
judgment or order, not being
an interlocutory order, of a
Family Court to the High
Court both on facts and on
law.
(2) No appeal shall lie
from a decree or order
passed by the Family Court
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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with the consent of the
parties or from an order
passed under Chapter IX of
the Code of Criminal
Procedure, 1973 (2 of 1974):
Provided that nothing in
this sub-section shall apply
to any appeal pending
before a High Court or any
order passed by a Family
Court under Chapter IX of
the Code of Criminal
Procedure, 1973 (2 of 1974),
before the commencement of
the Family Courts
(Amendment) Act, 1991.
(3) Every appeal under
this section shall be
preferred within a period of
thirty days from the date of
the judgment or order of a
Family Court.
(4) The High Court may,
on its own motion or
otherwise, call for and
examine the record of any
proceeding in which the
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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Family Court situate within
its jurisdiction passed an
order under Chapter IX of
the Code of Criminal
Procedure, 1973 (2 of 1974),
for the purpose of satisfying
itself as to the correctness,
legality or propriety of the
order, not being an
interlocutory order, and as
to the regularity of such
proceeding.
(5) Except as aforesaid,
no appeal or revision shall
lie to any court from any
judgment, order or decree of
a Family Court.
(6) An appeal preferred
under sub-section (1) shall
be heard by a Bench
consisting of two or more
Judges"
8. On the anvil of the aforesaid specific statutory
provision pertaining to appeal i.e. Section 47 of Guardians
and Wards Act as well as Section 19 of Family Courts Act,
when I examine the Impugned Order, it transpires that
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
10/32
Section 12 itself speaks about making Interlocutory order
for production of minor and interim protection of person
and property. The title of Section 12 itself shows that this
Section does not empower the Court to make any final order
rather under this provision, the Court has power to make
interlocutory order within the ambit of Section 12. With
regard to production of minor and interim protection of
person and property, Court cannot pass any final order u/s
12 of Guardians and Wards Act, rather there is specific
provision for making order as to the guardianship u/s 7 of
Guardians and Wards Act. Section 7 reads as follows:-
" Power of the Court to make
order as to guardianship. -
(1) Where the Court is satisfied
that it is for the welfare of a minor
that an order should be made -
(a) appointing a guardian of his
person or property, or both, or
(b) declaring a person to be
such a guardian,
the Court may make an order
accordingly.
(2) An order under this section
shall imply the removal of any
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
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guardian who has not been
appointed by will or other
instrument or appointed or
declared by the Court.
(3) Where a guardian has been
appointed by will or other
instrument or appointed or
declared by the Court under this
Section appointing or declaring
another person to be guardian in
his stead shall not be made until
the powers of the guardian
appointed or declared as aforesaid
have ceased under the provisions
of this Act."
9. Furthermore, I have quoted herein above
various orders which are appealable as per section 47 of the
Guardians and Wards Act in which the order passed u/s 12
of Guardians and Wards Act does not find mentioned. The
observation made in the case of Balram Yadav vs.
Fulmaniya Yadav, reported in 2016 13 SCC 308: AIR
2016 SC 2161 is quite relevant at this juncture. The
Hon'ble Apex Court while considering the scope of Section
7 of the Family Courts Act has observed that the Family
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
12/32
Courts Act has an overriding effect. A plain reading of Sub
section (1) of the Section 19 makes it clear that no appeal
lies against interlocutory orders passed under the Family
Courts Act. Section 20 of the Family Courts Act, 1984
provides for overriding effect of the Act on other laws or
instruments having the effect of law. Section 20 of the
Family Courts Act reads as follows:-
"20.Act to have overriding effect- The
provisions of this Act shall have effect
notwithstanding anything inconsistent
therewith contained in any other law for
the time being in force or in any
instrument having effect by virtue of any
law other than this Act. "
10. Now, I propose to examine some brief facts of
this case in which the Impugned Order has been passed by
the learned Principal Judge, Family Court, Patna.
Guardianship Case No. 75 of 2024 was filed by the
respondent - Abhinav Singh against the petitioner - Harsha
Sharma. In that case, a petition was filed on 05.02.2025 by
the respondent-Abhinav Singh praying therein that an order
granting custody of the minor girl child, namely, Sidhvi
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
13/32
Singh to the petitioner's father till the disposal of the
present case for the welfare of the minor child and in the
interest of justice be passed. After hearing both the parties
on the said petition, Impugned Order was passed on
15.04.2025
by the learned Additional Principal Judge,
Family court, Patna and the aforesaid petition of respondent
- Abhinav Singh was allowed which is impugned in this
case.
11. It is apparent that Guardianship Case No. 75 of
2024 has not attained its finality rather interim custody of
minor child has been given in favour of the respondent by
the Impugned Order. Hence, Guardianship Case No. 75 of
2024 is yet to be decided by the Family Court.
12. A similar matter was raised before the Division
Bench of this Court (Patna High Court), which was decided
in the case of Benazir Hasan Vs. Md. Rayeesul Azam and
Another, reported in 2023 SCC Online Pat 4745. In the
said judgment, the meaning of order and interlocutory order
and scope of judgment and interlocutory order has been
categorically discussed which is mentioned from para 14 to
18 of the said judgment.
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
" 14. At this stage, it is necessary
to take note of meaning of 'order' and
'interlocutory order' from the Black's
Law Dictionary which read as under:-
"order, n. 1. A command, direction,
or instruction. See MANDATE (1). 2. A
written direction or command delivered
by a court or judge. The word generally
embraces final decrees as well as
interlocutory directions or commands.
Also termed court order; judicial order.
See MANDAMUS. [Cases: Federal Civil
Procedure 928; Motions 46. C.J.S.
Motions and Orders §§ 1-3, 13, 50, 59.]
"An order is the mandate or
determination of the court upon some
subsidiary or collateral matter arising in
an action, not disposing of the merits, but
adjudicating a preliminary point or
directing some step in the proceed- ings."
1 Henry Campbell Black, A Treatise on
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
the Law of Judgments § 1, at 5 (2d ed.
1902).
"While an order may under some
circumstances amount to a judgment, they
must be distinguished, owing to the
different consequences flowing from them,
not only in the matter of enforcement and
appeal but in other respects, as, for
instance, the time within which
proceedings to annul them must be taken.
Rulings on motions are ordinarily orders
rather than judgments. The class of
judgments and of decrees formerly called
interlocutory is included in the definition
given in [modern codes] of the word
'order.'" 1 A.C. Freeman, A Treatise of the
Law of Judgments § 19, at 28 (Edward W.
Tuttle ed., 5th ed. 1925).
interlocutory order (in-tər-lok-yə-
tor-ee). An order that relates to some
intermediate matter in the case; any order
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
other than a final order. Most
interlocutory orders are not appealable
until the case is fully resolved. But by rule
or statute, most jurisdictions allow some
types of interlocutory orders (such as
preliminary injunctions and class-
certification orders) to be immediately
appeal- ed. -- Also termed interlocutory
decision; interim order; intermediate
order. See appealable decision under
DECISION; COLLATERALORDER
DOCTRINE. [Cases: Appeal and Error
67; Federal Courts 572, 576; Motions 51.
C.J.S. Appeal and Error § 84; Motions
and Orders §§ 2, 52-53, 55.]"
15. It is to be noted that final order
has to be interpreted in contradistinction
to an interlocutory order; and the test for
determining the finality of an order is
whether Judgment or order finally
disposed of the rights of the parties. If an
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
order which does not determine the rights
of the parties but is only on certain aspect
of the suit or the trial is an interlocutory
order; that the concept of the
interlocutory order has to be explained in
contradistinction to a final order. In other
words, if an order is not a final order, it
would be an interlocutory order.
Therefore, the impugned order is not
appealable under Section 19(1) of the
Family Courts Act. There is no concept of
order other than interlocutory order or
final order. The impugned order would
fall in the nature of interlocutory order.
Consequently, the present Miscellaneous
Appeal is not maintainable.
16. Section 47 of the G and W Act
relates to appealable orders. We have
quoted various Sections but Section 11,
Procedure on Admission of Application, is
not part and parcel of Section 47.
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
17. In Balram Yadav v. Fulmaniya
Yadav, (2016) 13 SCC 308: AIR 2016 SC
2161, the Apex Court while considering
the scope of section 7 of the Family
Courts Act observed that the Family
Courts Act has an overriding effect. A
plain reading of sub section (1) of Section
19 makes it clear that no appeal lies
against interlocutory orders passed under
the Family Courts Act.
18. The scope of 'Judgment' and
'interlocutory order' has been
distinguished time and again by the Apex
Court. In Shah Babulal Khimji v. Jayaben
D. Kama, (1981) 4 SCC 8 : AIR 1981 SC
1786, the Hon'ble Supreme Court
discussed the scope of 'interlocutory
order' and the expression 'judgment'
which was assigned a wider meaning and
has extended the scope of right of appeal
where the characteristics and trappings
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
of the finality of the issue is available.
The relevant paras 113- 115 reads as
under:--
"113. Thus, under the Code of Civil
Procedure, a judgment consists of the
reasons and grounds for a decree passed
by a court. As a judgment constitutes the
reasons for the decree it follows as a
matter of course that the judgment must
be a formal adjudication which
conclusively determines the rights of the
parties with regard to all or any of the
matters in controversy. The concept of a
judgment as defined by the Code of Civil
Procedure seems to be rather narrow and
the limitations engrafted by sub-section
(2) of Section 2 cannot be physically
imported into the definition of the word
"judgment" as used in clause 15 of the
letters patent because the letters patent
has advisedly not used the terms "order"
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
or "decree" anywhere. The intention,
therefore, of the givers of the letters
patent was that the word "judgment"
should receive a much wider and more
liberal interpretation than the word
"judgment" used in the Code of Civil
Procedure. At the same time, it cannot be
said that any order passed by a trial
Judge would amount to a judgment;
otherwise there will be no end to the
number of orders which would be
appealable under the letters patent. It
seems to us that the word "judgment" has
undoubtedly a concept of finality in a
broader and not a narrower sense. In
other words, a judgment can be of three
kinds: (1) A final judgment.- A judgment
which decides all the questions or issues
in controversy so far as the trial Judge is
concerned and leaves nothing else to be
decided. This would mean that by virtue
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
of the judgment, the suit or action
brought by the plaintiff is dismissed or
decreed in part or in full. Such an order
passed by the trial Judge indisputably
and unquestionably is a judgment within
the meaning of the letters patent and even
amounts to a decree so that an appeal
would lie from such a judgment to a
Division Bench. (2) A preliminary
judgment. - This kind of a judgment may
take two forms-(a) where the trial Judge
by an order dismisses the suit without
going into the merits of the suit but only
on a preliminary objection raised by the
defendant or the party opposing on the
ground that the suit is not maintainable.
Here also, as the suit is finally decided
one way or the other, the order passed by
the trial Judge would be a judgment
finally deciding the cause so far as the
Trial Judge is concerned and therefore
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
appealable to the larger Bench, (b)
Another shape which a preliminary
judgment may take is that where the trial
Judge passes an order after hearing the
preliminary objections raised by the
defendant relating to maintainability of
the suit, e.g., bar of jurisdiction, res
judicata, a manifest defect in the suit,
absence of notice under Section 80 and
the like, and these objections are decided
by the trial Judge against the defendant,
the suit is not terminated but continues
and has to be tried on merits but the
order of the trial Judge rejecting the
objections doubtless adversely affects a
valuable right of the defendant who, if his
objections are valid, is entitled to get the
suit dismissed on preliminary grounds.
Thus, such an order even though it keeps
the suit alive, undoubtedly decides an
important aspect of the trial which affects
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
a vital right of the defendant and must,
therefore, be construed to be a judgment
so as to be appealable to a larger Bench.
(3) Intermediary or interlocutory
judgment-Most of the interlocutory orders
which contain the quality of finality are
clearly specified in clauses (a) to (w) of
Order 43 Rule 1 and have already been
held by us to be judgments within the
meaning of the letters patent and,
therefore, appealable. There may also be
interlocutory orders which are not
covered by Order 43 Rule 1 but which
also possess the characteristics and
trappings of finality in that, the orders
may adversely affect a valuable right of
the party or decide an important aspect of
the trial in an ancillary proceeding :
Before such an order can be a judgment
the adverse effect on the party concerned
must be direct and immediate rather than
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
indirect or remote. For instance, where
the trial Judge in a suit under Order 37 of
the Code of Civil Procedure refuses the
defendant leave to defend the suit, the
order directly affects the defendant
because he loses a valuable right to
defend the suit and his remedy is confined
only to contest the plaintiff's case on his
own evidence without being given a
chance to rebut that evidence. As such an
order vitally affects a valuable right of
the defendant it will undoubtedly be
treated as a judgment within the meaning
of the letters patent so as to be
appealable to a larger Bench. Take the
converse case in a similar suit where the
trial Judge allows the defendant to defend
the suit in which case although the
plaintiff is adversely affected but the
damage or prejudice caused to him is not
direct or immediate but of a minimal
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
nature and rather too remote because the
plaintiff still possesses his full right to
show that the defence is false and succeed
in the suit. Thus, such an order passed by
the trial Judge would not amount to a
judgment within the meaning of clause 15
of the letters patent but will be purely an
interlocutory order. Similarly, suppose the
trial Judge passes an order setting aside
an ex parte decree against the defendant,
which is not appealable under any of the
clauses of Order 43 Rule I though an
order rejecting an application to set aside
the decree passed ex parte falls within
Order 43 Rule 1 clause (d) and is
appealable, the serious question that
arises is whether or not the order first
mentioned is a judgment within the
meaning of letters patent. The fact,
however, remains that the order setting
aside the ex parte decree puts the
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
defendant to a great advantage and works
serious injustice to the plaintiff because
as a consequence of the order, the
plaintiff has now to contest the suit and is
deprived of the fruits of the decree passed
in his favour. In these circumstances,
therefore, the order passed by the trial
Judge setting aside the ex parte decree
vitally affects the valuable rights of the
plaintiff and hence amounts to an
interlocutory judgment and is therefore,
appealable to a larger Bench."
114. In the course of the trial, the
trial Judge may pass a number of orders
whereby some of the various steps to be
taken by the parties in prosecution of the
suit may be of a routine nature while
other orders may cause some
inconvenience to one party or the other,
e.g., an order refusing an adjournment,
an order refusing to summon an
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
additional witness or documents, an
order refusing to condone delay in filing
documents, after the first date of
hearing an order of costs to one of the
parties for its default or an order
exercising discretion in respect of a
procedural matter against one party or
the other. Such orders are purely
interlocutory and cannot constitute
judgments because it will always be
open to the aggrieved party to make a
grievance of the order passed against
the party concerned in the appeal
against the final judgment passed by the
trial Judge.
115. Thus, in other words every
interlocutory order cannot be regarded
as a judgment but only those orders
would be judgments which decide
matters of moment or affect vital and
valuable rights of the parties and which
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
work serious injustice to the party
concerned. Similarly, orders passed by
the trial Judge deciding question of
admissibility or relevancy of a document
also cannot be treated as judgments
because the grievance on this score can
be corrected by the appellate court in
appeal against the final judgment."
13. After going through the aforesaid statutory
provision of Section 91 of the Family Courts Act as well as
the above judgment, it clearly transpires that Appeal is
maintainable only against the final judgment or order
passed by the Family Court but the case in hand, there is no
such final order or judgment. Hence, Appeal is not required
against the Impugned Order.
14. Having regard to the aforesaid facts and after
going through the entire statutory provisions hereinabove
mentioned as well as the citation placed by both the parties
and considering the overriding effects of the provisions of
Family Courts Act, I follow the precedent and accordingly
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
adopt the principle laid down by the Division Bench of
Patna High Court based on the principle enunciated in the
case of Balram Yadav vs. Fulmaniya Yadav (supra) by
Hon'ble the Supreme Court. Thus, I find and hold that
appeal is not maintainable in such type of case rather Civil
Miscellaneous is maintainable.
15. The present petition has been filed by the
wife/petitioner against the custody of her minor girl. As per
submission, the petitioner and respondent are wife and
husband and their marriage was solemonized in Patna on
09.03.2015 and from their wedlock, a girl child (Sidhwi
Singh) was born. Earlier the respondent filed a case under
Section 25 of the Guardians and Ward Act, 1890 before the
Principal Judge, Family Court, Varanashi vide Misc. Case
No. 69 of 2024 and in that case, vide order dated
06.07.2024, learned Principal Judge, Varanashi has allowed
the interim custody of child to the father/respondent.
16. The petitioner being aggrieved has challenged
the said order dated 06.072024 passed in Misc. Case No. 69
of 2024 before the Hon'ble High Court of Judicature at
Allahabad from where the Hon'ble High Court, vide order
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
dated 02.09.2024 has set aside the aforesaid order dated
06.07.2024. Against that order of Hon'ble High Court,
Allahabad, the respondent has filed S.L.P(Civil) No.
24601/2024 before the Hon'ble Apex Court which was
dismissed by order dated 25.10.2024.
17. The petitioner, thereafter, has filed Transfer
Petition (Civil) No. 1857 of 2024 before Hon'ble Apex
Court for transfer of Misc. Case No. 69 of 2024 from
Family Court, Varanasi to Family Court, Patna which was
allowed vide order dated 09.09.2024 and Misc. Case No. 69
of 2024 has been transferred from Family Court, Varanashi
to Family Court, Patna and the same has been renumbered
as Case No. 75(G)/2024.
18. In that case, the respondent/husband has filed
a petition under Section 12 of the Guardians and Ward Act,
1890 in which the impugned order has been passed against
the petitioner/wife which is under challenge in this Civil
Miscellaneous Application.
19. It is submitted by learned counsel for the
petitioner/wife that father of the respondent is suffering
from acute neuro problem and almost bed-ridden and in this
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
background even mother of the respondent is pre-occupied
to look after her husband and practically she has no time for
a demanding growing girl child. Moreover, there cannot be
any substitute of a biological mother of a girl child that too
when she is of merely 8 years old. It is further submitted
that respondent/husband has got serious behavioral issues
and an alcoholic and he cannot substitute the care, support
and warmth of a biological mother that too for a minor girl
child and without considering the aforesaid aspect, the
interim order has been passed granting custody of minor
girl-child to the respondent/husband by the learned
Principal Judge, Family Court, Patna which is illegal and
unjust.
20. Contrary to this, learned counsel appearing on
behalf of the respondent/husband has submitted that
impugned order is just, proper and in accordance with law
and interference is not required in the order impugned.
21. After going through the impugned order and
considering the submissions of the parties, it clearly
transpires that the age of the minor girl has been mentioned
as 8-9 years who is school going but the said minor girl has
Patna High Court C.Misc. No.539 of 2025 dt. 22-01-2026
not been interacted nor her statement has been recorded by
the trial Court before passing the impugned order, whereas
the paramount consideration for granting custody to the
minor child is to evaluate/examine the welfare of the minor.
Certainly, an 8-9 years school going girl-child is capable to
state something regarding the behaviour of her mother and
father towards her and her welfare also which has not been
done in this case which is very important aspect lacking in
this case.
22. Accordingly, the matter is remanded back to
the Principal Judge, Family Court, Patna for taking the
statement of the minor girl-child and thereafter pass an
order afresh after going through the entire aspects of this
case, in accordance with law.
23. Civil Miscellaneous No. 539 of 2025 stands
disposed of.
(S. B. Pd. Singh, J)
Shageer/Niraj/-
AFR/NAFR AFR
CAV DATE 03.11.2025
Uploading Date 29.01.2026
Transmission Date NA
