Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 25 OF 2021
AMAN LOHIA ...APPELLANT
Versus
KIRAN LOHIA ...RESPONDENT
J U D G M E N T
A.M. Khanwilkar, J.
1
1. The appellant had filed MAT Appeal (F.C.) No. 85/2020 in
2
the High Court of Delhi at New Delhi , which stood withdrawn
and transferred to this Court in light of other proceedings
pending between the parties in this Court involving overlapping
issues, as per the consent order passed on 29.7.2020. That
appeal, filed by the appellant is against the judgment and orders
dated 21.9.2019 of the Principal Judge, Family Court, Patiala
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.03.17
14:14:30 IST
Reason:
1 husband of the respondent
2 for short, “the High Court”
1
3
House, New Delhi , whereby the application filed by the
4
respondent for transposing her as petitioner in the petition filed
by the appellant declaring him as guardian of person of baby
Raina and appointing him as her guardian, came to be allowed
on the finding that the appellant had abandoned the petition. On
the same day, by a separate order, the respondent was appointed
as sole, exclusive and absolute guardian and custodian of minor
child.
2. Both the parties have resorted to multiple proceedings
against each other, essentially emanating from the discordant
marital relationship between them. Besides the guardianship
petition filed by the appellant, the respondent had filed
habeas
corpus petition on two occasions and because of noncompliance
of the directions issued by the Court regarding custody and
visitation rights, both had to file contempt petition against each
other. The appellant, as well as, his parents have also filed
special leave petition(s) against the judgment of the High Court in
habeas corpus petition(s) and contempt petition(s).
As aforesaid, during the hearing of the said proceedings,
3.
parties consented to the transfer of first appeal [MAT Appeal
3 for short, “the Family Court”
4 wife of the appellant
2
(F.C.) No. 85/2020] pending before the High Court against the
orders of the Family Court, dated 21.9.2019, which essentially
involves issue regarding guardianship. Besides, a divorce
petition is also pending between the parties.
4. Be that as it may, when the cases between the parties in
this Court were listed for analogous hearing, it was deemed
appropriate to first deal with the question of guardianship, to
which suggestion, the parties favourably responded and have
addressed the Court on all aspects of that matter. Intriguingly,
despite this Court vide order dated 29.7.2020 had withdrawn the
stated first appeal pending before the High Court and transferred
it to this Court, the High Court on 6.8.2020 in the very appeal,
even after taking note of the order dated 29.7.2020 passed by
this Court, proceeded to dispose of the appeal alongwith pending
applications therein. That, obviously, could not have been done
by the High Court. For, it had ceased to have jurisdiction to deal
with the appeal any further after the order of this Court dated
29.7.2020. Nevertheless, both parties advisedly argued the
transferred case (appeal) on merits without reference to the order
of the High Court, dated 6.8.2020.
3
5. As aforesaid, there are multiple proceedings pending
between the parties. But, in this judgment, we may confine to
the basic facts for answering the matter in issue before us
regarding guardianship.
At the outset, we may note that for the nature of order that
6.
we propose to pass in the present transferred case, it may not be
necessary for us to advert to all the factual matters pointed out
by both sides. Suffice it to note that the guardianship petition
(G.P. No. 09/2018) was filed by the appellant under Section 7 of
5
the Guardians and Wards Act, 1890 read with Section 7(g) of the
6
Family Courts Act, 1984 on 9.2.2018 on the assertion that the
minor child was in his custody at the relevant time. The
appellant had prayed for following reliefs:
“A. To declare petitioner as guardian of person of baby
Raina.
B. Appointing the petitioner as guardian of person of
baby Raina.
C. Any other relief this Hon’ble Court may deem fit and
proper.”
Notice was issued on the said petition on 19.2.2018. The
respondent did not file written statement until August, 2018,
5 for short, “the 1890 Act”
6 for short, “the 1984 Act”
4
when the appellant moved a formal application for amendment of
the petition under Order VI Rule 17 read with Section 151 of the
7
Code of Civil Procedure, 1908 and Section 10 of the 1984 Act to
bring on record certain subsequent events including regarding
habeas corpus petition(s). This application was filed by the
appellant on 21.8.2018. There is nothing on record to indicate
that the Family Court dealt with and disposed of this application
before the impugned order came to be passed on 21.9.2019. The
appellant filed another application under Order VI Rule 17 read
with Section 151 of the CPC and Section 10 of the 1984 Act for
amendment of the petition, on 4.10.2018. The Family Court
directed the respondent to file reply to this application. However,
the respondent did not file reply even to this application. In view
of certain further developments, the appellant moved another
application before the Family Court on 20.2.2019 to place on
record copy of order dated 13.2.2019 passed by the High Court in
Civil Contempt Petition (CCP) No. 116/2019 against the
respondent and for issuing further directions that because of the
contemptuous conduct of the respondent, she should not be
heard on any application until she purges contempt. The Family
7 for short, the “CPC”
5
Court, besides taking note of that application, also recorded in its
order dated 20.2.2019 that the application filed by the appellant
under Order VI Rule 17 was still pending and notified the same
for hearing on 8.3.2019. When the matter was listed before the
Family Court on 8.3.2019, the respondent without any prior
intimation, started arguing application under Section 26 of the
8
Hindu Marriage Act, 1955 filed by her, despite the fact that the
said application was not listed for argument on that date. What
was listed on that day were the four applications, namely, two
applications under Order VI Rule 17 of the CPC filed by the
appellant, an application to take on record copy of High Court
order dated 13.2.2019 in CCP No. 116/2019 and the fourth one
filed by the respondent under Order VII Rule 11 for dismissal of
the guardianship petition (G.P. No. 09/2018). However, all the
four applications stood deferred on that day.
7. The respondent then filed an application under Section 151
of the CPC for declaring and appointing her to be the sole and
absolute guardian and custodian of the minor child. This
application was filed by the respondent on 13.9.2019. No notice
was given to the appellant of this application nor advance copy
8 for short, “the HMA”
6
thereof was supplied to him personally or his counsel. It had
been averred in that application, that from the proceedings before
the High Court appended to the application it was amply clear
that the appellant had proved himself to be unworthy, incapable
and incompetent to act in the welfare of child and discharge any
parenting privilege whatsoever. In the wake of serious allegations
against the appellant, this application was ordered to be posted
for hearing before the Family Court on 16.9.2019 at 2.00 p.m., as
noted in the order dated 13.9.2019, which reads thus:
“GP No. 09/2018
Aman Lohia vs. Kiran Lohia
13.09.2019
Present: Ms. Rytim Vohra, Ld. Counsel for the
respondent/ applicant.
File taken up today on application under Section 151
CPC seeking appropriate directions filed on behalf of the
respondent/applicant.
Let notice of the application be issued to the
petitioner/nonapplicant and his counsel on filing of
PF as well as through Email as per law. Process be
given dasti.
Be listed on 16.09.2019 at 2.00 pm.
Ld. Counsel for the petitioner has filed on record
photocopy of the order of the Hon’ble High Court of Delhi
dated 12.09.2019 vide which the application for transfer
of the case from this court to some other court has been
dismissed. Since now there is no bar or restraint for this
court to proceed with the case notice has been issued to
the nonapplicant/petitioner.”
(emphasis supplied)
7
In terms of the said order, the matter was notified on 16.9.2019
when following order came to be passed:
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
16.9.2019
Present: Sh. Rajat Bhalla, Ld. Counsel for the petitioner.
Ld. Proxy Counsel for the respondent.
File taken up today as Sh. Rajat Bhalla, Ld. Counsel
for the petitioner has been served with notice of the
applications moved by ld. Counsel for the respondent for
early hearing and issuance of directions.
Sh. Rajat Bhalla, Advocate who was appearing on
behalf of the petitioner in the present petition and in HMA
Bearing No. 625/18 (new No. 663/18) states that since he
has not received any instructions from his client,
therefore, he seeks discharge from this case. He has also
pointed out that he has made similar request before the
Hon’ble High Court of Delhi in same cases pending
between the same parties and he was discharged in the
same vide order dated 12.9.2019. He also states that he
had written email to his client and had tried other modes
of service also to inform him that he should make
alternative arrangements for a counsel as he is seeking
discharge in this case. He states that he had sent emails
to the counsel for the respondent that he was no more
representing the petitioner Sh. Aman Lohia in any of the
matters handled by him.
Heard.
After hearing counsel for the petitioner and having
gone through the emails that he has sent to the
petitioner and the copies of the orders of the Hon’ble
High Court of Delhi, he is discharged from this case .
No one is present thus today on behalf of the
petitioner. Notice was sent to him dasti and report on
the same is awaited .
Be listed on 19.9.2019 at 2.30 pm.
Earlier date given i.e. 30.10.2019 stands
cancelled .”
(emphasis supplied)
8
In the meantime, the respondent filed another application under
Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of
the CPC to transpose her as the petitioner in the guardianship
petition (G.P. No. 09/2018). This application was filed on
18.9.2019. The reliefs claimed therein read thus:
PRAYER
“
In the above stated facts and circumstances, it is
respectfully prayed that this Hon’ble Court may be
pleased to:
a. Transpose the Respondent as the Petitioner
and the Petitioner as a Respondent in the present
case.
b. Pass such other orders or directions as it may
deem fit and proper in the interest of justice.”
8. On 19.9.2019, the matter was listed before the Family
Court, when the Court passed the following order:
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
19.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Ld. Counsel for the respondent has filed an
application under Order 1 Rule 10 and Order 23 Rule
1 a r/w Section 151 CPC to transpose the respondent.
Be listed for consideration on 20.09.2019 at
1.00 pm .”
(emphasis supplied)
On 20.9.2019, when the matter was taken up, the Court
recorded the following order:
9
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file
case law.
Be listed for orders on 21.09.2019.
Sd/
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
Once again, the Court did not advert to the crucial aspects as to
whether the application under consideration had been duly
served upon the appellant much less notice relating to
application under Section 151 of the CPC filed by the respondent,
as also, the subsequent application for transposition under Order
I Rule 10.
9. Accordingly, on 21.9.2019, the matter was posted for
hearing before the Family Court when two separate orders came
to be passed. The first order was that despite knowledge about
the pending proceedings, the appellant had abandoned and
10
withdrawn from the case for which reason the respondent was
entitled to be transposed as the petitioner in the guardianship
petition and seek declaration that she was the guardian of the
minor child. It is stated that no notice of the transposition
application was ever served on the appellant nor was he given
notice regarding hearing of the said application before the Court,
despite the fact that his counsel had been discharged from the
case and the appellant was not represented by any other counsel.
On the same day, the Family Court then proceeded to decide the
main guardianship petition (G.P. No. 09/2018). After recording
the material facts pointed out by the respondent, it proceeded to
hold that giving guardianship of the minor child, who was only
two and half years of age, to the appellant, was not advisable. By
virtue of his conduct, he (appellant) had disentitled himself to be
declared as guardian of the minor child. After recording this
finding, the Court proceeded to hold that in the paramount
interest and welfare of the child, the respondent mother needs to
be declared as the sole, exclusive and absolute guardian and
custodian of the minor child.
11
10. Feeling aggrieved, the appellant approached the High Court
by way of MAT Appeal (F.C.) No. 85/2020 to challenge the
aforesaid judgment and orders passed by the Family Court, dated
21.9.2019. The appellant had raised diverse grounds to
challenge the correctness of the view expressed by the Family
Court including the manner in which the impugned orders were
passed, without giving fair opportunity to him and also about
failure to follow mandatory procedure. The impugned orders
were passed by the Family Court without following due process of
law and in breach of principles of natural justice, in the matters
of discharging his advocate and not issuing notice to the
appellant even thereafter, calling upon him to make alternative
arrangements, and moreso in allowing transposition of the
respondent as petitioner and appellant as respondent and on the
same day to declare her (respondent) as the sole, exclusive and
absolute guardian and custodian of the minor child.
According to the appellant, the judgment under appeal is
11.
not a judgment in terms of Section 17 of the 1984 Act. That the
12
record of the case makes it amply clear that the Family Court
failed to adhere to the established practice and procedure to be
followed for adjudicating the disputes brought before it under the
1984 Act. That is evident from the order dated 13.9.2019, which
records that notice be issued to the appellant herein and his
counsel returnable on 16.9.2019. at 2.00 p.m. However, on
16.9.2019, when the counsel appearing for the appellant – Mr.
Rajat Bhalla informed the Court that he intended to take
discharge and his application came to be allowed by the Court,
no notice thereof was given to the appellant. The order clearly
records that dasti report regarding service of notice sent to the
appellant was still awaited. As a matter of fact, on an earlier
date, the Court had posted the matter for 30.10.2019, which date
stood unilaterally cancelled by the Family Court in terms of order
dated 16.9.2019, again without notice to the appellant. Further,
no affidavit of service was filed on record indicating the factum of
service of notice on the appellant regarding the application under
Section 151 of the CPC filed by the respondent praying that she
be declared as the sole, exclusive and absolute guardian and
custodian of the minor child. Despite that, the Court proceeded
13
with the matter on 19.9.2019, but before that date, another
application came to be filed by the respondent for transposing
her as petitioner in the guardianship petition and appellant as
respondent therein, for the reasons mentioned in the application
dated 18.9.2019. Even copy of this application was not served on
the appellant and despite that, the Family Court proceeded
therewith on 19.9.2019 without recording the fact as to whether
the appellant was duly served with the earlier application or the
earlier notice; and yet chose to list the matter on the next day
i.e., 20.9.2019 for consideration at 1.00 p.m. In short, it is urged
that the record plainly speaks about the manner in which the
Family Court proceeded to pass the orders on 21.9.2019, with
tearing hurry at the behest of the respondent whilst completely
disregarding the mandatory procedure prescribed in the 1984 Act
read with the provisions of the CPC. It was a clear case of
infraction of principles of natural justice. It is urged that it was
not open to the Family Court to assume the factum of appellant
having abandoned the proceedings unless he had appeared in
Court to say so or had informed the Court in writing in that
regard. It is a question of fact and not a matter for deducing
14
legal presumption. Assuming that the Court was convinced that
the appellant was not pursuing the proceedings diligently or was
creating obstruction in any manner, the Court, at best, could
have dismissed the petition filed by the appellant on the ground
of default or nonprosecution under Order IX Rule 8 of the CPC.
In any case, since the Court chose to proceed with the
transposition application against the appellant, it should
ex parte
have clearly recorded that fact in its order and the reasons in
support thereof. Besides, after transposition of respondent as
the petitioner in the guardianship petition (G.P. No. 09/2018)
filed by the appellant and appellant as respondent therein, it was
imperative for the Court to issue notice to the appellant to file his
response in the proceedings. As a matter of fact, in guardianship
proceedings, the question of transposition does not arise. For, it
is a substantive petition founded on cause of action personal to
the person claiming to be guardian of his own ward. Moreover,
admittedly, the respondent had never filed written statement to
oppose the guardianship petition filed by the appellant much less
reply to the application(s) for amendment of petition, which could
be treated by the Court as guardianship petition filed by the
15
respondent herself. In either case, the Court was obliged to issue
notice to the appellant and only after service of notice, could have
proceeded in the matter. If the respondent had any difficulty in
effecting service of notice on the appellant, the Court could have
allowed the respondent to serve the appellant through
substituted service under Order V of the CPC. Even that attempt
was not made by the Court. Instead, it presumed that the
appellant had abandoned the proceedings. That approach is
manifestly wrong. Hence, the procedure followed by the Family
Court until culmination of proceedings into judgment and orders
dated 21.9.2019, is vitiated in law.
12. The appellant is relying on dictum in Mamata Mayee
9
, wherein the Orissa High Court took
Sahoo vs. Abinash Sahoo
note of the procedural compliances to be made by the Family
Court. According to the appellant, the decision relied upon by
the Family Court of Delhi High Court in Someshwar Dayal vs.
10
, was inapposite. It was clearly
Anupama Dayal
distinguishable, as there was nothing on record to indicate that
the petitioner had expressly abandoned the proceedings or after
9 2015 SCC Online Ori 167
10 2016 SCC Online Del 4585
16
due opportunity, had committed default in any manner. The
present case indeed, was one of counsel appearing for the
appellant having withdrawn from the case. That does not mean
that the appellant had abandoned the proceedings. It is urged
that the application filed by the respondent under Section 151 of
the CPC, in law, could not be regarded as a substantive petition
required to be filed under Section 25 of the 1890 Act for a
declaration/appointment as guardian. In any case, the Family
Court was under obligation to insist for the written statement to
be filed by the respondent including reply to the applications filed
by the appellant under Order VI Rule 17 of the CPC and then to
frame issues on which the matter could proceed. Not only that,
the Family Court was obliged to record evidence before
adjudicating the matters in issue and pronounce final declaration
and judgment under Section 17 of the 1984 Act, which obliges
the Family Court to record a concise statement of the case, the
point for determination, the decision thereon and the reasons for
such decision. The Family Court in the guise of entertaining
application under Section 151 of the CPC, cannot assume the
plenary power of a constitutional Court, but is obliged to decide
the case as per the mandatory procedure prescribed in the
17
concerned Act and/or the CPC, as the case may be, for conduct
of trial and inquiry. Strikingly, the Family Court, after
pronouncing the impugned judgment and orders on 21.9.2019,
upon an application filed by the respondent under Section 151 of
the CPC, despite becoming functus officio , issued directions vide
order dated 16.10.2019 to the effect that the custody of the minor
child be handed over to the respondent mother within specified
time. It was matter of record that the child was away from the
jurisdiction of the Family Court when the relevant orders came to
be passed. In law, therefore, the Family Court could not have
exercised jurisdiction as noted in
Ruchi Majoo vs. Sanjeev
11
Majoo .
The appellant asserts that he is a loving, caring, concerned
13.
and affectionate father and the minor cannot be denied of all that
merely because of events that unfolded during the pendency of
habeas corpus petition(s) or contempt petition(s) before the High
Court. The central concern of the Court should be the
paramount welfare and interest of the minor child. The approach
of the Court in that regard ought to be childcentric. The issue
11 (2011) 6 SCC 479
18
cannot be answered on the basis of claims and counter claims of
the warring parents, as to deny the child of parentage of her
father because of other acts of commission and omission of the
father. To do so would, in effect, be punishing the minor child
and depriving her of the love and affection of her father. That
must be eschewed. The Family Court in such proceedings is
obliged to record a clear finding about the unfitness or otherwise
of the father to be a guardian. That must be in the context of the
child care and not other matters or worldly activities of father.
As a matter of fact, contends the learned counsel, the most
appropriate course would be to follow the joint shared parenting
plan, in which the child would interact with both the parents in
equal measure. Further, the paramount interest and welfare of
the child is not limited to being connected with father and
mother, but even other family members from both sides for her
wellbeing and holistic growth. That is vital in the context of
child psychology and upbringing. As a matter of fact, during
counselling, the respondent had accepted the fact that because
she is a working woman, the child can remain with the
grandparents, who were staying only few houses away, during
19
the day time on working days. The appellant had highlighted
several aspects about the unfitness of the respondent to groom
the child or devote enough time and attention herself.
Reliance has been placed on the dictum in
14. Savitha
12 13
Seetharam vs. Rajiv Vijayasarathy Rathnam , JK vs. NS ,
14
,
Tushar Vishnu Ubale vs. Archna Tushar Ubale Law
15
Commission of India Report No. 257 and Child Access &
16
. According to
Custody Guidelines alongwith Parenting Plan
the appellant, joint custody or shared parenting would be in the
“best interest and welfare of the child”. That would ensure that
every decision taken regarding the child is for fulfilment of her
basic rights and needs, identity, social wellbeing and physical,
emotional and intellectual development. Reliance is placed on
17
decision in ,
Lahari Sakhamuri vs. Sobhan Kodali Ashish
18
Ranjan vs. Anupma Tandon & Anr. , Tejaswini Gaud & Ors.
12 2020 (4) AKR 372 (paragraphs 9-11, 13, 23 and 32)
13 2019 SCC Online Del 9085 (paragraphs 89 and 95-97)
14 AIR 2016 Bom 88 (paragraphs 15 and 17-20)
15 Law Commission of India Report No. 257 – Reforms in Guardianship and Custody Laws
in India (May, 2015)
16 Child Access & Custody Guidelines alongwith Parenting Plan by Child Rights Foundation
NGO, Mumbai, 2014
17 (2019) 7 SCC 311
18 (2010) 14 SCC 274
20
19
, and
vs. Shekhar Jagdish Prasad Tewari & Ors. Vivek
20
Singh vs. Romani Singh .
It is urged that the respondent for reasons best known to
15.
her, precipitated the matter despite the preemptory directions
given by this Court in connected proceedings between the parties,
by taking U.S. nationality of the minor child and also obtained a
Consular Report of Birth Abroad Status (CRBA) in December,
2019 from the U.S. Embassy. The respondent herself is a U.S.
citizen. Therefore, the appellant apprehends that the respondent
has intention to remove the child away from the jurisdiction of
the Courts in India and permanently deny access to him and his
family members. Since the respondent has secured CRBA status
on the basis of declaration given by the Family Court vide
impugned judgment and orders, upon setting aside of that order,
all consequential claims/benefits accrued or derived by the
respondent on that basis, must also become nonest in the eyes
of law.
As a matter of fact, in the Indian context, neither provisions
16.
of the 1984 Act nor the 1890 Act, envisage a declaration in favour
19 (2019) 7 SCC 42
20 (2017) 3 SCC 231
21
of the parent to be the sole, exclusive and absolute guardian and
custodian of the minor child. Such declaration has been
intentionally obtained by the respondent from the Family Court
to serve her ulterior purpose. The appellant has taken us
through other points to buttress the argument that the
respondent is not a fit person for parental custody or
guardianship of the minor child. The appellant has also relied on
the observations in
Nithya Anand Raghavan vs. State (NCT of
21 22
Delhi) & Anr. , Prateek Gupta vs. Shilpi Gupta & Ors. ,
23
and
Kanika Goel vs. State of Delhi & Anr. ABC vs. State
24
(NCT of Delhi) . According to the appellant, the father being a
natural guardian under the Hindu Laws, is entitled for
declaration of guardianship unless it is found in a given case that
he is unfit in the context of parenting of the minor child or would
act against the interest and welfare of the minor child, as the
case may be. According to the appellant, the father is a natural
guardian. Irrespective of the mother’s custody, the guardianship
of the father cannot be divested in law. To buttress this
21 (2017) 8 SCC 454
22 (2018) 2 SCC 309
23 (2018) 9 SCC 578
24 (2015) 10 SCC 1
22
contention, reliance is placed on
Roxann Sharma vs. Arun
25
Sharma . It is contended that unless the father is declared as
unfit, the relief of declaring him to be the guardian cannot be
declined. The fact that the appellant had taken the child away
from the jurisdiction of the Family Court, does not mean that he
was a kidnapper of the child, as he continues to be a natural
guardian.
17. It is also urged that interparental child removal is not a
statutory offence. Reliance has been placed on
the Hague
Convention on the Civil Aspects of International Child
26
, to contend that issue of
Abduction dated 25.10.1980
accession to the 1980 Hague Convention is still under
consideration of the Government of India and interparental child
abduction has not yet found any recognition in Indian law.
18. According to the appellant, the impugned judgment and
orders cannot be sustained on any parameter and need to be set
aside and instead, the guardianship petition (G.P. No. 09/2018)
filed by the appellant be made absolute in favour of the appellant.
25 (2015) 8 SCC 318
26 for short, “the 1980 Hague Convention”
23
The respondent has stoutly refuted the stand taken by the
19.
appellant. It is urged that the Family Court had no other option,
but to proceed on the basis that the appellant had abandoned the
proceedings before that Court. Merely because there is no
express statement forthcoming from the appellant in the
proceedings before the Family Court, does not mean that he had
not abandoned the proceedings before the Family Court by his
conduct and other circumstances established from the record
and so noted even by the High Court. The appellant admittedly
filed proceedings in the UAE Court claiming himself to have
converted to Islam. It is only when it became impossible for him
to continue with those proceedings and his arrest became
inevitable, he had no other option, but to withdraw those
proceedings and submit to the jurisdiction of this Court. Such a
litigant cannot be shown any indulgence nor would deserve any
sympathy. The appellant is required to discharge high burden of
estoppel , in raising procedural deficiencies in the decision
making process by the Family Court. In any case, the facts and
the record would reveal that the appellant had full notice about
the progress of the matter and the applications filed by the
respondent, as is evident from his email trail. It is urged that the
24
appellant because of his conduct, has denied himself of raising
technical pleas about procedural lapses committed by the Family
Court. The procedural justice is always subservient to the
substantive justice. It is urged that hyper technical argument of
the appellant regarding noncompliance of procedure by the
Family Court, needs to be negatived in light of the exposition in
27
,
Sangram Singh vs. Electional Tribunal, Kotah & Anr.
28
State of Punjab & Anr. vs. Shamlal Murari & Anr. and
29
.
Rosy Jacob vs. Jacob A. Chakramakkal
20. In the alternative, it is submitted that there are strong
reasons why the order passed by the Family Court needs to be
upheld. For, the appellant not only converted himself to Islam
but also indulged in misadventure by abducting minor child and
taking her away outside India and obtained Dominica citizenship
and Dominica passport for the minor. The mother being the
natural guardian and the appellant having misconducted
rendered himself to be unfit as guardian, the Family Court justly
recognised the respondent as the sole guardian of the minor.
27 AIR 1955 SC 425 (paragraph 16)
28 (1976) 1 SCC 719 (paragraph 8)
29 (1973) 1 SCC 840
25
As regards the U.S. citizenship taken by the respondent of
21.
the minor child and U.S. passport, the respondent through
counsel submits that she would surrender the same. That was
taken by the respondent in good faith and for the welfare of the
minor child. It is urged that the Family Court has done
independent evaluation of the relevant factual matrix before
concluding that giving guardianship to the appellant father would
not be advisable and instead, the respondent was the fit person
to be appointed as sole, exclusive and absolute guardian and
custodian of the minor child. That can be discerned from the
discussion in paragraphs 15, 17 to 28 of the impugned judgment.
It is urged that the minor child is not comfortable while in
company of the appellant or his family members, whereas, she is
being properly looked after by the respondent and her family
members. Even though the respondent is a working woman
being a professional, she is conscious of her obligation towards
the minor child and gives her best for the welfare and upbringing
of her daughter. The present arrangement of visitation permitted
by this Court in the connected proceedings to appellant can
continue on same terms without disturbing the decision of the
Family Court declaring the respondent as the sole guardian of
26
the minor. The respondent is willing to abide by any terms and
conditions, as may be imposed by this Court to secure the
welfare and interest of the minor child. The appellant having
converted himself to Islam for reasons best known to him, has
disentitled himself from acting as a guardian of the child who
continues to remain Hindu.
Reliance is placed on Section 6 of the Hindu Minority and
22.
30
Guardianship Act, 1956 . As per the proviso therein, no person
is entitled to act as the natural guardian of a minor under the
provisions of Section 6, if he has ceased to be a Hindu. There
being a clear embargo by statute coupled with the welfare of the
minor child, the appellant is unfit for a declaration sought by
him. The appellant had indulged in abduction of the minor child
on two occasions, which has been frowned upon by the High
Court in habeas corpus proceedings and more particularly, in
contempt action initiated against the appellant and his family
members. That itself is a good reason to deny any relief to the
appellant. Rather, the appellant should not be heard until he
purges contempt and those proceedings are still pending before
this Court. This Court ought to exercise parens patriae
30 for short, “the 1956 Act”
27
jurisdiction, keeping in mind the paramount interest of the minor
31
child as observed in Gaurav Nagpal vs. Sumedha Nagpal ,
especially because the appellant has acted against the welfare of
the minor. Any other view would result in rewarding him for his
misconduct and misadventure including the disobedience of the
directions issued by the High Court, by abducting the minor on
two occasions, the first one when she was seven months old and
the second when she was only two years old. The minor must
have undergone traumatic experience because of such abduction
and taking her away to foreign country completely blocking out
from her mother (respondent). This is not a case of overzealous
emotional father, who loves his child, but is a revengeful father
who hates his wife (mother of minor child), much more than his
proclaimed love for his child. The appellant is unfit as a model
parent and does not have moral values of an upstanding citizen
who respects the law and cares about the people around him.
23. Reliance has been placed on the pleadings filed by the
appellant, wherein he had gone to the extent of showing distrust
in the judicial system of this country and had converted himself
to Islam only to ensure that the custody of the child remains with
31 (2009) 1 SCC 42
28
him. He did not stop at that, but also fraudulently obtained
passport for the minor child from the Dominica when her Indian
passport was in custody of the High Court. He devised a legal
stratagem of using Indian legal system, as well as, the Courts in
UAE for achieving his immoral plan of retaining custody of the
minor child with him and to completely deny the respondent of
any access or interaction whatsoever with the minor child. The
appellant had approached the Court of equity and having
misconducted himself and abused the judicial process, is not
entitled for any relief whatsoever. It is urged that by now, it is
well established that “maternal preference rule” is the rule
codified in the form of Section 6(a) of the 1956 Act, which gives
right to the mother to get absolute custody of the minor
daughter. Reliance is placed on dictum in (supra) in
ABC
support of this proposition. According to the respondent, there is
an ongoing risk of third kidnapping or attempt in that behalf by
the appellant. The appellant is a flight risk and cannot be pinned
down in the event he manages to escape with the minor child. To
safeguard the interest of the minor child in appropriate way and
to ensure that she is not denied of the motherly love of the
respondent and her family members as well, it will be just and
29
proper to uphold the decision of the Family Court. Further, there
is no merit in the argument of the appellant that because of
stated procedural lapses committed by the Family Court, the
matter needs to proceed afresh before the Family Court. That
would be a futile exercise because the conduct of the appellant all
throughout has disentitled him for being declared as a fit person
for being the guardian of minor child.
Our attention was drawn to various documents to support
24.
the argument about the manner in which the appellant had
misconducted with her (respondent) including disobeying the
directions issued by the High Court and resultantly, caused
immense tension and stress to the minor child of such a tender
age, because of her abduction on two occasions. According to the
respondent, the appeal filed by the appellant questioning the
impugned judgment and orders passed by the Family Court does
not merit any interference and the same be dismissed.
25. We have heard Mr. Anil Malhotra, learned counsel for the
appellant and Mr. Shyam Divan, learned senior counsel for the
respondent.
30
After cogitating over the rival submissions, in our
26.
considered opinion, it may not be appropriate for us to delve into
the factual matrix of the case, especially regarding the conduct of
the parties as alleged by them against each other, for the nature
of order that we propose to pass.
We are more than convinced that the Family Court, in the
27.
present case, exceeded its jurisdiction by hastening the entire
proceedings. Indubitably, the Family Court is obliged to inquire
into the matter as per the procedure prescribed by law. It does
not have plenary powers to do away with the mandatory
procedural requirements in particular, which guarantee fairness
and transparency in the process to be followed and for
adjudication of claims of both sides. The nature of inquiry before
the Family Court is, indeed, adjudicatory. It is obliged to resolve
the rival claims of the parties and while doing so, it must adhere
to the norms prescribed by the statue in that regard and also the
foundational principle of fairness of procedure and natural
justice.
28. The Family Courts came to be established under the 1984
Act. Section 7 specifies the jurisdiction of the Family Court and
31
about the nature of claims to be adjudicated by it in the form of
suits and proceedings delineated in the explanation in sub
section (1). Section 10 predicates about the procedure generally.
The provisions of the CPC are made applicable for resolution of
disputes falling under the 1984 Act. The Family Court is deemed
to be a Civil Court having all powers of such Court. Consequent
to bestowing such power on the Family Court, comes with it a
primary duty to make efforts for settlement, as prescribed under
Section 9. If that does not happen, during the resolution of
disputes between the parties, the Family Court then has to bear
in mind the principles enunciated in the Indian Evidence Act,
1872, which had been made applicable in terms of Section 14 of
the 1984 Act. A Family Court can receive as evidence any report,
statement, documents, information or matter that may, in its
opinion, assist it to deal effectually with a dispute, whether or not
the same would be otherwise relevant or admissible under the
Indian Evidence Act, 1872. There is another provision, which
gives insight into the working of the Family Court in the form of
Section 15. It posits that the Family Court shall not be obliged to
record the evidence of witnesses at length, but the Judge, as the
examination of each witness proceeds, shall, record or cause to
32
be recorded, a memorandum of the substance of what the
witness deposes, and such memorandum shall be signed by the
witness and the Judge and shall form part of the record. An
incidental provision regarding efficacy of recording of evidence
can be traced to Section 16 of the 1984 Act. That envisages that
evidence of any person where such evidence is of a formal
character, may be given by affidavit and may, subject to all just
exceptions, be read in evidence in any suit or proceeding before a
Family Court.
29. These provisions plainly reveal that the Family Court is
expected to follow procedure known to law, which means insist
for a formal pleading to be filed by both sides, then frame issues
for determination, record evidence of the parties to prove the
facts asserted by the concerned party and only thereafter, to
enter upon determination and render decision thereon by
recording reasons for such decision. For doing this, the Family
Court is expected to give notice to the respective parties and
provide them sufficient time and opportunity to present their
claim in the form of pleadings and evidence before determination
of the dispute.
33
We may usefully refer to the provisions of the 1890 Act, as
30.
invoked by the appellant by filing petition before the Family
Court. The appellant admittedly filed petition before the Family
Court under Section 7 of the 1890 Act read with Section 7(g) of
the 1984 Act. Section 7 of the 1890 Act bestows power in the
Court to make order as to guardianship in respect of a minor.
Such prayer can be made by anyone interested in the welfare of
the minor and “not limited to the father and mother of the
minor”. In this inquiry, the Court, if so satisfied that it is for the
welfare of the minor, is free to appoint the applicant as a
guardian of person or property of the minor or both or merely
declaring a person to be such a guardian. Section 8 of the Act
makes it amply clear as to who is entitled to apply for the order.
It has specified four categories of persons. First is person
desirous of being the guardian of the minor. The second is any
relative or friend of the minor. The third is the Collector of the
district or other local area within which the minor ordinarily
resides and the fourth is the Collector having authority with
respect to the class to which the minor belongs. Such
application is required to be filed before the District Court having
jurisdiction in the place where the minor ordinarily resides under
34
Section 9 of the 1890 Act. As regards procedure for such an
application, it is delineated by providing for the form of
application in Section 10 of the Act, which must contain
necessary information referred to therein. Section 11 prescribes
for the procedure in the event the Court is satisfied that there is
ground for proceeding on the application. That would require
adducing of evidence before making an order in terms of Section
13 of the 1890 Act. The Court is required to consider certain
matters as specified in Section 17 of the 1890 Act and while
making order, must also bear in mind the exception provided in
Section 19 as to who should not be appointed as guardian.
31. Suffice it to observe that both the enactments (the 1984 Act
and the 1890 Act), provide for procedure in the form of
disclosures, declarations and assertions and its refutations by
the other party opposing the claim, whereafter the matter
proceeds for recording of evidence followed by the declaration or
order passed by the Court. Intrinsic in all these steps is to
guarantee fair opportunity to all concerned.
The question, therefore, that needs to be answered in light
32.
of the grievance made by the appellant is: whether the Family
35
Court in the present case had followed procedure prescribed by
the concerned Act, much less a fair procedure adhering to
principles of natural justice?
33. It is not in dispute that the appellant had filed the petition
by invoking provisions of Section 7 of the 1890 Act read with
Section 7(g) of the 1984 Act. Admittedly, no written statement
was ever filed by the respondent to oppose the said petition. On
the other hand, the appellant took out two applications for
amendment of the pleadings under Order VI Rule 17 of the CPC.
No reply was filed by the respondent even to these applications,
despite Court directing her to do so vide order dated 4.10.2018.
There is nothing on record to indicate that the Family Court
decided these two applications for amendment of pleadings taken
out by the appellant. Although the main objection alongwith two
applications for amendment filed by the appellant remained
pending from February, 2018, the respondent never filed
response to the main petition or the amendment applications and
instead took out application under Section 151 of the CPC for
being appointed the sole and absolute guardian and custodian of
the minor child, on 13.9.2019. This application was posted for
hearing on 13.9.2019, on which date the Court issued notice to
36
the appellant and his counsel. As per that order, the matter was
again notified on 16.9.2019 when the counsel appearing for the
appellant – Mr. Rajat Bhalla requested the Court to
discharge him from the case, which request was acceded to by
the Court. As a matter of fact, before discharging the counsel,
the Family Court should have ensured that notice was given to
the appellant about the request made by his counsel including to
make alternative arrangements, if he so desired. Admittedly, no
such notice was issued by the Family Court. That is reinforced
from the order dated 16.9.2019 reproduced in paragraph 7
above. It has been plainly noted that dasti notice sent to the
appellant was still awaited.
34. Assuming that the Family Court could have allowed the
request of the counsel for the appellant to unilaterally take
discharge without giving notice to the appellant. However, after
accepting that request, it was obligatory to issue notice to the
appellant to inform about the order so passed and also calling
upon the appellant to make necessary arrangements on the next
date. The Family Court instead set down the main matter on
19.9.2019 at 2.30 p.m. In terms of order dated 16.9.2019, the
Family Court additionally cancelled the already scheduled
37
returnable date of 30.10.2019, unilaterally. There is nothing on
record to show that the respondent had made such a request.
35. What is more striking, is that, before 19.9.2019, the
respondent took out another application under Order I Rule 10
read with Order XXIII Rule 1A of the CPC for being transposed as
petitioner in the guardianship petition and to transpose appellant
as respondent therein, for the reasons stated in the application
dated 18.9.2019. Admittedly, even copy of this application was
not served on the appellant nor a formal notice came to be issued
by the Family Court on this application, when it was taken up for
hearing on 19.9.2019. The Family Court merely ordered to place
the matter on 20.9.2019 at 1.00 p.m. The order dated 19.9.2019
(in paragraph 8 above), makes no reference to the fact as to
whether the notice sent to the appellant vide order dated
16.9.2019 had been duly served nor about the filing of any
affidavit of service effected on him. Be that as it may, when the
matter was listed on 20.9.2019, the Court after hearing the
learned counsel for the respondent passed the following order
(also reproduced in paragraph 8 above):
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
38
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file
case law.
Be listed for orders on 21.09.2019.
Sd/
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
Once again, there is no mention even in this order about service
of (i) the application under Section 151 of the CPC filed by the
respondent, (ii) the application under Order I Rule 10 of the CPC
read with Order XXIII Rule 1 read with Section 151 of the CPC
filed by the respondent, (iii) order dated 16.9.2019 and (iv) order
issuing notice on application under Order I Rule 10 on the
appellant. Despite this, the Court proceeded on the assumption
that the appellant had abandoned the proceedings. There can be
no legal presumption about the factum of abandonment of
proceedings. The abandonment has to be express or even if it is
to be implied, the circumstances must be so strong and
convincing that drawing such inference is inevitable. Rather, no
39
other view is possible. For that, the Court ought to have adverted
to the material/evidence indicating that the appellant/petitioner
was duly served with the applications filed by the respondent and
that he was fully aware about the discharge of the counsel
representing him in the proceedings including about service of
Court notices. Even if the Court was to infer abandonment, it
could at best have dismissed the petition for default in exercise of
power under Order IX Rule 8 of the CPC.
36. Further, the Court could not have entertained the
transposition application filed by the respondent ex parte and
that too without ensuring that it was duly served on the
appellant consequent to notice issued thereon by the Court.
Admittedly, there is no official Court record to indicate that such
service was effected on the appellant including that the Court
had issued notice on the transposition application. Arguendo ,
such transposition was permissible but after allowing the
transposition application ex parte , unless the cause title was
amended and appropriate changes/amendments made in the
petition including parties producing evidence in support of their
claim, the matter could not have proceeded for final
40
determination. After such amendment, in any case, opportunity
was required to be given to the appellant by issuing Court notice
so as to enable him to respond to the amended petition including
to contest the same. We may not be understood to have accepted
the proposition that transposition in guardianship proceeding is
permissible, much less permissible as a matter of course at the
instance of the other parent of the minor child. We leave that
question open.
37. In (supra), this Court in paragraph 16
Sangram Singh
observed that procedure is something designed to facilitate
justice and further its ends – not a penal enactment for
punishment and penalties; not a thing designed to trip people up.
Further, too technical a construction of sections that leaves no
room for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is done to both
sides) lest the very means designed for the furtherance of justice
be used to frustrate it. These observations are contextual and
have no application to the case where there is no semblance of
procedure followed by the Family Court and the entire matter is
disposed of in a short span of less than eight days after filing of
an application (on 13.9.2019) by the respondent under Section
41
151 of the CPC for declaring her to be the sole, exclusive and
absolute guardian and custodian of the minor child including the
transposition application under Order I Rule 10 (filed on
18.9.2019) and culmination of the proceedings in favour of the
respondent on 21.9.2019 vide impugned judgment and orders,
that too without notice to the appellant nor waiting for service of
notice already issued on the former application. This is
substantial noncompliance of the prescribed mandatory
procedure and infraction of principles of natural justice, not a
technical irregularity to be overlooked.
38. Reliance was also placed on the dictum in Shamlal Murari
(supra). In paragraph 8, while construing the concerned rule,
this Court opined that every minor detail in that rule cannot
carry a compulsory or imperative import. On that finding, the
Court construed the said rule as directory and not having the
effect of vitiating proceedings as in the present case, both on
account of noncompliance of statutory procedural safeguards
and in violation of principles of natural justice.
39. Reliance was then placed on (supra). In that
Rosy Jacob
case, the Court dealt with proceedings under Section 25 of the
42
1890 Act and in the fact situation of that case, noted that the
guardian Court in case of a dispute between the mother and the
father is expected to strike a just and proper balance between the
requirements of welfare of the minor children and the rights of
their respective parents over them. This issue may have to be
debated in the remanded proceedings. We do not wish to dilate
on this aspect.
40. Suffice it to observe that the appellant is justified in
contending that the impugned judgment and orders came to be
passed by the Family Court in a tearing hurry, may be because of
the insistence of the respondent and her counsel to do so in light
of the observations made by the High Court in habeas corpus and
contempt matters against the appellant. The impugned judgment
does make reference to those orders. We may hasten to add that
the conduct of the appellant frowned upon by the High Court in
the habeas corpus petition or contempt petition, cannot be made
the sole basis to determine the factum of fitness or otherwise of
the appellant for being a guardian of the minor child. That fact
has to be decided on its own merits taking all aspects into
account including possibility of joint shared parenting
43
arrangement and more particularly, childcentric approach with
paramount welfare and interest of the minor child. It is for that
reason, even the High Court whilst disposing the habeas corpus
and contempt proceedings, had added a word of caution at the
end of its judgment that guardianship petition or other
proceedings between the parties must proceed on their own
merits in accordance with law, which observation has been
completely glossed over by the Family Court in the present case.
We have chosen not to dilate on other aspects or reported
41.
decisions brought to our notice by both sides including about the
conduct of parties as alleged by each of them against the other.
Nor it is necessary for us to examine the necessity of exploring
the possibility of joint shared parenting plan, to assuage the
psychological barriers likely to be encountered by the minor child
of tender age and more particularly, for her holistic development,
welfare and paramount interest. Those are matters which the
Family Court ought to examine after giving due opportunity to
both sides on their own merits and in accordance with law.
44
A priori , we have no hesitation in setting aside the ex parte
42.
impugned judgment and orders dated 21.9.2019 passed by the
Family Court on transposition application, as well as, on the
application for declaration that the respondent is the sole,
exclusive and absolute guardian and custodian of the minor
child. For the same reasons, the purported follow up order
passed on 16.10.2019 by the Family Court, directing handing
over custody of the minor child within the time specified therein,
is also set aside. As these orders are set aside, any action taken
on the basis of the aforesaid orders is to be regarded as nonest in
law and is so declared hereunder. That does not mean that the
custody of the minor child needs to be restored to the father
(appellant) forthwith. That issue will have to be decided finally by
the Family Court in the proceedings remanded in terms of this
order.
By this order, we direct remand and revival of the
43.
Guardianship petition (G.P. No. 09/2018) and also all
applications filed in the main guardianship petition by the
45
appellant. In other words, the two applications for amendment of
petition filed by the appellant under Order VI Rule 17 read with
Section 151 of the CPC shall stand restored and revived and be
heard in the first place. Similarly, the other applications filed by
the appellant to bring on record subsequent events/documents
be also decided first. As the appellant has already withdrawn all
proceedings between the parties pending in UAE Court, as
recorded in connected matters pending in this Court, it is
indicative of the fact that he intends to pursue the guardianship
petition to its logical end, and for that reason, the transposition
application under Order I Rule 10 read with Order XXIII Rule 1
read with Section 151 of the CPC, filed by the respondent, needs
to be dismissed. We, however, revive the application filed by the
respondent under Section 151 of CPC for declaring her to be the
sole and absolute guardian in place of the appellant. That shall
proceed before the Family Court on its own merits in accordance
with law. All contentions available to both sides including about
its maintainability are left open to be decided by the Family Court
in accordance with law.
46
It was brought to our notice that the respondent has taken
44.
U.S. citizenship for the minor child and also U.S. passport in her
name. In the context of that grievance, the respondent through
counsel had assured that she will not precipitate the said claim
and is willing to surrender the same in this Court to avoid any
misapprehension entertained by the appellant. The respondent
may do so within two weeks from today. At the same time, we
direct the respondent not to travel with the minor child outside
Delhi or abroad without prior permission of this Court to be
taken in the connected matters.
45. The appeal is partly allowed in the aforementioned terms
(referred to in paragraphs 42 to 44). The transferred case is
accordingly disposed of. No order as to costs. All pending
applications in this case are disposed of.
………............................J.
(A.M. Khanwilkar)
………............................J.
(B.R. Gavai)
………............................J.
(Krishna Murari)
47
New Delhi;
March 17, 2021.
48