Case Note & Summary
The petitioner, Mansiben, the mother of a minor child, filed a Special Civil Application under Article 227 of the Constitution of India challenging an order dated 11.09.2025 passed by the learned Family Court, Dhrol-Jodia, below Exh.19 in Civil Misc. Application No. (DC) 03 of 2025. The respondent, Keshavjibhai Damjibhai Ghetiya, the grandfather of the minor, had filed a petition under Section 12 of the Guardian and Wards Act, 1890 seeking permanent custody of the minor son. During the pendency of that petition, the Family Court, without any application for interim custody, passed an order directing the mother to remain present with the minor child before the court. The mother contended that the order was without jurisdiction as no interim relief was sought. The High Court examined the provisions of the Guardian and Wards Act, 1890, and noted that Section 12 allows the court to make interim orders only upon application. Since no such application was made, the order was held to be without jurisdiction. The High Court quashed and set aside the impugned order, allowing the petition.
Headnote
A) Family Law - Custody of Minor - Interim Order Without Application - Section 12 of Guardian and Wards Act, 1890 - The Family Court passed an order directing the mother to produce the minor child before the court without any pending application for interim custody. The High Court held that such an order is without jurisdiction as no prayer for interim custody was made under Section 12 of the Act. The order was quashed and set aside. (Paras 1-13)
B) Constitutional Law - Writ Jurisdiction - Article 227 of Constitution of India - The High Court exercised its supervisory jurisdiction under Article 227 to quash an order passed by the Family Court that was without jurisdiction. The court held that the Family Court cannot pass interim orders suo motu without any application seeking such relief. (Paras 1-13)
Issue of Consideration
Whether the Family Court had jurisdiction to pass an interim order directing the mother to produce the minor child before the court without any application for interim custody under Section 12 of the Guardian and Wards Act, 1890.
Final Decision
The High Court allowed the petition and quashed and set aside the impugned order dated 11.09.2025 passed by the Family Court below Exh.19 in Civil Misc. Application No. (DC) 03 of 2025.
Law Points
- Jurisdiction of Family Court
- Interim custody orders
- Guardian and Wards Act
- 1890
- Article 227 of Constitution of India
- Natural guardian rights of mother
Case Details
2026 LawText (GUJ) (03) 728
R/Special Civil Application No. 15369 of 2025
Mr. Premal S. Rachh for the Petitioner, Mr. Henil M. Shah for the Respondent
Mansiben W/o Dharmendrabhai Keshavjibhai Ghetiya D/o Bhagvanjibhai Ganeshbhai Bhimani
Keshavjibhai Damjibhai Ghetiya
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petition under Article 227 challenging an interim order of Family Court in a guardianship proceeding.
Remedy Sought
Quashing of the order dated 11.09.2025 passed by the Family Court below Exh.19 directing the mother to produce the minor child before the court.
Filing Reason
The Family Court passed an interim order without any application for interim custody, which the mother contended was without jurisdiction.
Previous Decisions
The Family Court passed the impugned order on 11.09.2025 in Civil Misc. Application No. (DC) 03 of 2025.
Issues
Whether the Family Court had jurisdiction to pass an interim order directing the mother to produce the minor child without any application for interim custody under Section 12 of the Guardian and Wards Act, 1890.
Submissions/Arguments
The petitioner argued that the Family Court passed the order without any application for interim custody, and thus the order is without jurisdiction.
The respondent supported the order, but the court found no application for interim relief was made.
Ratio Decidendi
The Family Court cannot pass an interim order under Section 12 of the Guardian and Wards Act, 1890 without any application seeking such interim relief. The order passed without jurisdiction is liable to be quashed under Article 227 of the Constitution of India.
Judgment Excerpts
The order passed below Exh.19 has been passed by the learned Family Court, Jodiya – Dhrol in CMA filed by the respondent - original petitioner herein u/s 12 of the Guardian and Wards Act, 1890 seeking permanent custody of minor son 'A'.
During the pendency of the petition, the learned Family Court, without having any prayer below Exh.19, passed the following order:-
Procedural History
The respondent filed Civil Misc. Application No. (DC) 03 of 2025 under Section 12 of the Guardian and Wards Act, 1890 seeking permanent custody of the minor. During its pendency, the Family Court passed an interim order on 11.09.2025 below Exh.19 directing the mother to produce the child. The mother challenged this order by filing the present Special Civil Application under Article 227.
Acts & Sections
- Guardian and Wards Act, 1890: Section 12
- Constitution of India: Article 227
