Pallabi Dutta Das Vs Ajoy Das — Child Custody and Guardianship | Calcutta HC (2025)

Pallabi Dutta Das Vs Ajoy Das — Child Custody and Guardianship | Calcutta HC (2025)

What the court decided

AI extract

Outcome

FMAT 39 of 2025 and CAN 1 of 2025 dismissed as not maintainable, with liberty to the appellant to prefer an appropriate challenge before the proper forum; leave granted to the appellant's Advocate-on-record to take back the certified copy of the impugned order upon furnishing a photocopy for the records.

Issue for consideration

Whether the appeal is maintainable, i.e., whether the impugned order, coming within the contemplation of Section 12 of the Guardians and Wards Act, 1890, is appealable under Section 47 of that Act. +2 more

Court's answer

Upon perusal of the relevant provisions of the Guardians and Wards Act, the court opined that the impugned order pertains to the “protection of the person” of the minor and comes within the purview of Section 12 of the said Act; hence, no appeal lies against such order.

Ratio / Principle

The petitioner's contention that the impugned order was a Section 7 order rather than a Section 12 interlocutory order was rejected: the court found the order to be a Section 12 order concerning protection of the minor's person.

Key takeaways

The court expressly did not enter into the merits of the second maintainability objection (that unchallenged extensions of the interim order would render the appeal toothless), the appeal having been found unmaintainable on the first objection; that point was left open.obiter¶14

Detailed headnote1 paragraphs

Guardians and Wards Act, 1890 – appealability of interim orders. The impugned interim order concerning a minor was held to pertain to the “protection of the person” of the minor and to fall within Section 12 of the Guardians and Wards Act, 1890; the court concluded that no appeal lies against such an order (the respondent having argued non-appealability under Section 47 of the Act). The appellant's plea that the order was a Section 7 order was rejected. The court did not reach the respondent's second objection — that subsequent extensions of the interim order, not themselves assailed, would leave the appeal toothless even if allowed — leaving that point open; the respondent had cited the coordinate-bench judgment in Siddharth Gupta vs. Somdeo Gupta & Others (FMAT 1102 of 2017) on that point, which the court did not engage with. FMAT 39 of 2025 and CAN 1 of 2025 were dismissed as not maintainable, with liberty to the appellant to pursue an appropriate challenge before the proper forum, and leave to take back the certified copy of the impugned order upon furnishing a photocopy.

AD- 9 Ct No.16 18.02.2025 (SSS)

FMAT 39 of 2025 With CAN 1 of 2025

Pallabi Dutta (Das) Vs. Ajoy Das

Mr. Kumar Jyoti Tewari, Mr. Panchanan Hajra, Ms. Rajlakshmi Ghatak, Mr. Aniruddha Tewari, Ms. Samriddhi Nayak

….For the Appellant.

Mr. Anindya Halder, Mr. Zubair Ahmed

….For the Respondent.

Affidavit of service filed today be kept on record.

Two preliminary objections are taken to the maintainability of the appeal by learned Counsel for the respondent. First, it is argued that the impugned order, coming within the contemplation of Section 12 of the Guardians and Wards Act, 1890, is not appealable under Section 47 of the said Act. Secondly, it is contended that there have been subsequent extensions of the interim order which has been challenged herein. Since the extension orders have not been assailed, the present appeal, even if allowed, would be toothless.

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Learned Counsel for the respondent cites a coordinate bench judgment of this court in the matter of Siddharth Gupta vs. Somdeo Gupta & Others (FMAT 1102 of 2017) in support of the latter contention.

Learned Counsel for the petitioner submits that the impugned order is in the nature of one under Section 7 of the Guardians and Wards Act, 1890 and not an interlocutory order under Section 12.

However, upon a perusal of the relevant provisions of the Guardians and Wards Act, we are of the opinion that the impugned order pertains to “protection of the person” of the minor and, as such, comes within the purview of Section 12 of the said Act. Hence, no appeal lies against such order.

In view of the above observations, we are not required to enter into the merits of the second objection as to maintainability.

Accordingly, FMAT 39 of 2025 and CAN 1 of 2025 are dismissed as not maintainable, with liberty to the appellant to prefer an appropriate challenge before the proper forum.

Leave is granted to the learned Advocate-onrecord for the appellant to take back the certified copy of the impugned order upon furnishing a photocopy of the same for the records.

(Sabyasachi Bhattacharyya, J.)

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(Uday Kumar, J.)