Child custody in Divorce proceeding under sec.26 of Hindu marriage act.

Child custody in Divorce proceeding under sec.26 of Hindu marriage act.

Prabhati Mitra vs D.K. Mitra on 17 January, 1984

Equivalent citations: 25 (1984) DLT 186

Author: A B Robatgi

Bench: A B Rohatgi

JUDGMENT

Avadh Behari Robatgi, J.

(1) This unfortunate matter arises out of matrimonial differences. A girl of 14 and a boy of 11 are living with their mother. Their is a contest between the parents as to which should have their care and custody. Each is attacking the other. The guardian judge has decided that the minors should be transferred to the father's control. From that order mother appeals to this court.

(2) The appellant, Smt. Prabhati Mitra, is the mother of the children. The respondent, Shri D.K. Mitra, is their father. Their marriage was dissolved by a decree of divorce passed by this court on 21.5.82. There are two children of the marriage. A daughter Sofia alias Bipasha, a girl 14 years of age. She was reading in 8th class in Lady Irwyn School. The other is a son. Raja alias Tanmoy, a boy 11 years of age. He was studying in 5th class in Frank Anthony School.

(3) Unfortunately the marriage of the parties came to grief. The mother left the house on 22.3.1980. On 25.7.1980 she made an application under section 25 of the Guardian and Wards Act for the custody of the two minor children. The father opposed. The application was dismissed for want of prosecution on 24.8.1982.

(4) On 24.5.1983 the mother went to the house of the father and met the children in his absence. They narrated their tale of woe to her. Moved by the story of their maltreatment and neglect, she brought them with her without obtaining any orders of the court. On 30th. May, 1983 she made an application to the Guardian Judge staling that when she went to see the children at the house of their father, they started weeping and insisted that she should take them with her as they were not happy in the father's house, She found it unbearably distressing to lew them behind. So the children accompanied her to her house. At present they are with the mother. She produced the children before the judge. They told the judge that they would like to live with the mother. The court allowed her custody of the children till an application is moved by the father.

(5) It appears that the father had gone out of India during those days. When he returned he did not find the children at home. He immediately made an application under section 151, Code of Civil Procedure statling that the children bad been removed from his custody forcibly and that it is not in the interest of the children to live with their mother. He sought the custody of the minors. By his order dated 21st July, 1983 the Guardian Judge decided this application in favor of the father. He made an order to the mother to hand over the custody of both the children to the father "forthwith".

(6) The learned judge held that "the mother took the law in her own hands and removed the children from the custody of the father in his absence and such a course adopted by the mother cannot have any legal sanction." He was of the view that "the custody of the children with the mother is absolutely illegal". From this order granting custody to the father, the mother appeals to this court.

(7) It appears to me that the learned judge did not decide the case on merits. He mainly held that the wife had kidnapped the children from the legal custody of the father who was not unfit to retain their custody and therefore the children must be restored to the custody of the father. That is why at the end of his judgment he observed that it was open to the mother to claim custody and "she can apply afresh for obtaining custody of the children under the provisions of Guardians and Wards Act" or by reviving the earlier proceedings she had launched in 1980.

(8) In the very beginning when I started hearing the appeal I told counsel for both parties that I will decide the case on merits and they can adduce such evidence before me as they thought proper. The parties have given evidence by affidavits. I have heard arguments at length. Written arguments have also been submitted by both parties.

(9) In my opinion the learned judge erred in concluding that he should make a peremptory order for the children's return to the father. He should have heard the case on its merits. It is true that the parents ought to be discouraged from taking the law into their own hands. The courts must set their face against kidnapping. If a child is in the mother's care and the father takes it away against her will, the proper course usually will be to restore it to her forthwith in the absence of any evidence that this is likely to harm the child. But the courts are now more anxious to consider the case on its merits. The courts are becoming increasingly reluctant to make peremptory orders and are now much readier to consider the merits. This appears to be the view of Supreme Court in Dr. Mrs. Veena Kapoor v. Varender Kapoor, . The Punjab High Court had dismissed the mother's

petition for habeas corpus on the narrow ground that the custody of the child with the father was not illegal. The Supreme Court remitted the case to the High Court to take evidence and to consider the questions as to whether it was in the interest of the minor that its custody should be handed over to the mother, after taking into consideration all the circumstances of the case. This new attitude to the question of custody suggests that I should investigate the merits of the rival claims of the parties and for this purpose I embarked on an inquiry after taking affidavit evidence.

(10) This was not a case of kidnapping, as the Judge thought. The mother informed the Nizamuddin Police Station about the fact of removal of children on that very day i.e. 24.5.1983. She produced them before the judge. She brought their distressing condition to his notice. He allowed the mother to retain custody. But the course adopted by the learned judge means initially moving the children from father to mother, then from mother to father by his order, and possibly from father to mother if the wife did as advised by the judge. So the children will virtually become playthings in the parental warfare. Like a rolling stone they will have no stability of home.

(11) "THE controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents." (Rosy Jacob v. Jacob, ). It is well

settled that "in the matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party." (Veena Kapoor v. Varender Kapoor (supra) ).

(12) This is the paramount consideration. Other considerations must be subordinate. The mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child and can be effective only if it coincides with the welfare of the child. Consequently, it cannot be correct to talk of the pre-eminent position of parents, or of their exclusive right to the custody of their children, when the future welfare of those children is being considered by the court. What does this paramountcy of welfare means ? In the words of Lord Macdermott in J. v. C. (1970) Ac 668, 710 :

"(THESEwords) must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they can note a process whereby, when all the relevant facts, relationships, claims and wishes of parents. risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the Child's welfare as that term has now to be understood. That is the first consideration because it is of the first importance and the paramount consideration because it rules upon or determines the course to be followed."

(13) The crux of the case is that father and the mother have now been divorced. They were married in 1968. Out of the wedlock these two children were born. Sofia was born on 22nd December, 1969. Raja was born on 23rd August, 1973. Later on their marital relations became estranged. The wife petitioned for divorce on the ground of her husband's cruelty under section 13(1)(ia) of the Hindu Marriage Act. The Additional District Judge dismissed the petition. On appeal Goswani J. allowed the appeal of the wife holding the husband to be guilty of cruelty. He granted a decree of divorce in favor of the present appellant against the respondent. The custody proceedings are the outcome of this divorce litigation. One important fact which has to be constantly borne in mind is that after divorce the father remarried on 15.9.1982. The mother remains unmarried. She says that she does not intend to remarry.

(14) Of the problems resulting from the dissolution of marriage none is more serious than that of trying to ensure the future well being of the children. The size of the problem has assumed such an enormous proportion that each year thousands of children are affected by the divorce of their parents. While it is a general principle of law that in proceedings relating to the custody and upbringing of a child, the child's welfare is the first and foremost consideration, it is often the case-and should be openly admitted-that in divorce proceedings the welfare of the children of the marriage is in direct conflict with the desire- and the legal right-of one or both of the parents divorced. The very institution of divorce proceedings bodes ill for the children of the marriage. When the marriage breaks down their custody becomes the subject of a court order.

(15) In the forefront of his arguments counsel for the father said that the mother is living in adultery with one Mr. Vashisht and she is therefore disentitled to the custody of the children by reason of her moral character. For this he relies on the observations of Goswami J. in Prabhati Mitra v. D.K. Mitra. 1982 Hindu Law Reporter 397, 407.. What was argued before Goswami J. was that the wife had some sort of relationship with Mr. Vashisht. The wife denied this. The husband objected to the visits of Mr. Vashisht to their house. As a result there were quarrels between the husband and wife. The learned judge observed "in these circumstances, I feel that the learned trial judge was right in drawing the inference that the allegations of the respondent regarding the relationship of the petitioner and Mr. Vashisht were not without foundation or reckless and as such the said allegations cannot be termed as an act of cruelty". The learned judge was only concerned with the question whether the husband was cruel to the wife when he objected to the visits of Mr. Vashisht to the house. This point he decided in favor of the husband and held that on this count he was not cruel because his objection was not without foundation. I cannot read it as a positive finding of adultery against the wife. The wife alleged that Mr. Vashisht was like a brother to her. But she did not produce him in court. So it was held that the husband was not cruel to the wife when he objected to Vashisht's visits, whether frequent or spasmodic, and if as a result there were "unpleasant incidents" between the parties.

(16) The first and foremost consideration is the welfare of the minor. The rights and wishes of parents must be assessed and weighed in their bearing on the. welfare ofthe child in conjunction with all other factors relative to that issue. The mother's custody is preferred not because she has a paramount claim against other relations but because of the care and supervision that a mother who is not out at work can give to young children is a very important factor. The court may see the child privately and ascertain the wishes of a child if it is grown up. I talked to the children in my chamber twice-once on September 7, 1983 and a second time on October 13, 1983. They showed me their school record, their progress record and fee books. Both of them are studying in a good public school. They told me clearly and unambiguously that they were not willing to go to their father under any circumstances because they had been ill treated by their step mother. They complained of maltreatment by the stepmother and neglect by the father. They told me that they were given raw potatoes and onion to eat. They were not sent to school in clean and properly pressed school dress. They said that their stepmother in Calcutta threatened to drown them into sea if they did not leave her house.

(17) At this stage I must mention that the learned trial judge also had a private interview with the children. His impression was, however, different. He was of the view that the children had been "tutored" and "coaxed" to speak against their father so much so that they were not willing to talk to him. The children told the judge that their father will beat them for going away with their mother in his absence, To this the judge said :

"To my mind this apprehension in the "minds of the children has been created by continuous poisoning from the side of the mother."

From my talk with the children I did not have the impression that they had been tutored. They talked to me freely. As normal children, they seemed to me very happy with their mother. This was the dominant impression they left on my mind.

(18) It was said that the Father is employed in Trade Fair Authority on a decent salary, that he can give better education to the children, that they can be respectably brought up if custody is given to him. The fact that one claiment to the custody is in a position to give the child a better start in life than another does not give him a prior claim. It is the happiness of the child, not its material prospects, with which the court is concerned, and any other rule would automatically put a poor parent at a disadvantage. Obviously, however, a party's financial position cannot be ignored entirely, e.g. if he is so poor that he cannot provide home for his children, this in itself might be enough to refuse him actual custody. But again the quality of the home life that the child will have must not be measured in purely material terms : the amount of time and energy that a parent can devote to its care and upbringing is of considerable importance. This may mean that a mother who can spend the whole of her time with her children will necessarily have an advantage over the father who will be out at work all day, whatever alternative arrangements he can make to have them looked after. (See Re. K 1977 (1) All E.R. 647). Here the position is complicated by the fact that the father has remarried. Giving custody to the father will amount to giving custody to the stepmother. From the stepmother the children had maltreatment. From the father neglect. This was the experience of the past. The affidavits filed on behalf of-the mother and the children's report to me in private show that this was the state of things. It will be harsh to the children to repeat the old experiment. In the fact and circumstances of this case the husband is disentitled to the custody of the children. He has remarried. The new partner he has taken will care more for the children whom they bring into this world. Human nature is the same the world over.

(19) There is an affidavit by the stepmother as to her willingness and intention to look after the children and be a mother to them. I do not think a stepmother, however anxious to do her best for the children, can take the place of the mother. The mother is more likely to give the attention to the children that they need at this formative stage than a stepmother who, however anxious to perform her duties, will naturally be more interested to the needs of a child who is her own child. The order of the judge gives the custody to the father. So the mother is deprived of the care and control of the children. The children, too, are deprived of their mother's care. They will have the opportunity of a stepmother to care, but that is not always the same thing. Above all the children are not prepared to live with the stepmother.

(20) In Gohar Begum v. Suggi, the Supreme Court

applied the welfare principle and held that the mother, a muslim woman, and a singing girl by profession, was entitled to the custody of her minor illegitimate daughter of 6 years which was in the custody of her mother's sister. No matter who her father is, the Supreme Court said, the mother is entitled to the custody of the illegitimate daughter. The interest of the child will be better served if she is in the custody of the mother rather than her mother's sister, the court said.

(21) In Saraswatibai Ved v. Shripad Ved, Air 1941 Bombay 103 Beaumont Cj said:

"however the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world ever, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an "adequate subsitute for her for the custody of a child of tender years."

He further observed:

"The modern view of the judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother.--- The mother's position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband."

Wadia J. said:

"c of the minor has married again. That in itself may not be a ground for depriving him of the custody of bids minor child. But the court has got to consider all the circumstances of the case, and taking human nature as the same here as elsewhere, a stepmother cannot be expected to be very much interested in the welfare of a minor stepson, nor likely to give him the attention, love and sympathy which the child naturally reqauires."

(22) The courts in this country took this view in 1941. Now we have advanced much further. The position of women in society is much improved today. The modern trend is well represented by the Supreme Court decision in Gohar Begum where the mother, a singing girl, was held to be entitled to the custody of her illegitimate daughter. Regardless of the question who the father is, the court held that mother is preferable to any other near relation.

(23) In Balram Mandal v. Rajani Mandalain, the boy

was illtreated by the stepmother. The court said that if the boy is kept under the guardianship of the father, for all practical purposes, the stepmother will have full control over the boy. The court held that the natural mother was a better guardian than the stepmother.

(24) In Munnibai v. Dhanush, the father after divorce had remarried. The court held that there was probability of the minor child being neglected by the stepmother. It was held that the mother was entitled to the custody of the child as she had stated that she had no intention to marry again. The claim of the natural mother was preferred to the claim of the father in the matter of custody.

(25) The marriage of the parties has been dissolved by a decree of divorce. This is the most important factor in this case. After divorce the question of custody, control and maintenance of the minor children of the marriage has now arisen. Section 26 of the Hindu Marriage Act provides for the custody of the children:

"26.In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and . education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made."

(26) The wife ought to have petitioned under this section. This is the proper provision applicable to a broken home. All orders relating to "custody, maintenance, and education" of minor children are to be made "from time to time" and may be varied, suspended or discharged. They all automatically come to an end on the child's 18th birthday when he attains majority.

(27) The court can make provision "in the decree" and "after the decree", and from "time to time". The legislature has given full elasticity in the exercise of the court's power and it would be unwise to restrict this elasticity. So flexible are the powers of the judge. In effect the legislature is saying: "In such cases trust the judge." This flexibility is its greatest advantage. In ordinary circumstances no final order is ever made. "From time to time" it can be varied, suspended or superseded.

(28) The mother and father are fighting about the custody of the minor children. The court has to make such provisions-now that the decree of divorce has been passed-"as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible." If parents are divorced, arrangements have to be made about the children's upbringing. With whom are the children to live ? Who is to be empowered to take major decisions about their upbringing, for example, about their education ? If the children have their home with one parent, what arrangements are to be made to allow the other to preserve the relationship with them by visits, holidays and so on ? Who is to provide financially for the children ? These difficult questions arise.

(29) Where custody is contested between the parties, as here, other difficulties arise. Each of them is anxious to have custody, but it is open to question whether the contest always indicates that the parties are moved solely or even primarily by the desire to safeguard the children's interests. Passions are aroused in divorce and judgments distorted. One party may contest other's claim to custody from spiteful or selfish motives. The children are then in danger of becoming pawns in the struggle of wills. This case vividly illustrates it. In circumstances of this kind, the judge in deciding custody is in the end forced back to the test of welfare of the children. He strives to make the best arrangement which he can devise for the children in the new situation created by the dissolution of the marriage. The law is now infinitely more complex, largely because the welfare of the children has become a major concern of public policy transcending the "rights" of individual parents. This means more than that the courts will not enforce parental rights if to do so would not serve the children's interest. The legislature has given wide powers to the court to look after the welfare of the children. This indeed is one of the most difficult problems in family law.

(30) In the broadest sense, custody meant the sum total of the rights which a parent could exercise over his child. These rights continue until the child attains the age of 18. Over the years the father's primacy was reduced in three ways. First the Court in exercise of their paternal jurisdiction might interfere to deprive the father of some or all of his rights. This is the theory of Guardian and Wards Act 1890. Secondly, section 26 of the Hindu Marriage Act, 1955 has made the mother's rights equal to those of the father. Thirdly, the courts have attached increasing importance to the welfare of the child rather than the rights of the parents. The paramount consideration in case of disputes between the father and the mother is the welfare of the child. Section 26 says that provision has to be made consistently with the wishes of the minors wherever possible. This shows that the court may disregard the rights of a parent if it finds that by having regard to their wishes it will be promoting the welfare of the children. The parent's rights can be suspended and superseded where it is shown that to do so will be in the interest of the minor. This is the key-note of the law relating to the exercise of parental rights and gowers, as it has developed over the centuries culminating in the Hindu Marriage Act, 1955. Earlier cases indicate that effect will always be given to father's legal rights unless he had forfeited them by moral or cruel conduct or was seeking to enforce them capriciously or arbitrarily. The parental rights are on the decline. The welfare theory is on the ascendant.

(31) In this age of equality of sexes the effect of legislation and judge-made law is to whittle down the father's rights and also to give the mother positive rights to custody which in earlier days the law did not accord to her. In the cascade of legislation passed in the fifties of this century e.g. The Hindu Marriage Act 1955, the Hinnu Minority and Guardianship Act 1956, the Mindu Adoptions and Maintenance Act 1956, the legislature has touched upon the subject of welfare and protection of children from many angles. The new Guardianship Act of 1956 is in addition to and not in derogation of the Guardians and Wards Act 1893. The father's pre-eminent position as the patria potestas or head of the family who demanded unquestioned obedience to his commands simply does not obtain today. It is the children's interest which predominates. The legislation, old and new, is characterised by the golden thread which runs through it, which is that the welfare of the child is considered first, last and all the time.

(32) The "welfare principle" is the proper test to be applied in cases of disputes between the parents and is now universally accepted as applicable in all courts dealing with this issue, whether it is matrimonial jurisdiction or guardianship jurisdiction. The welfare of a child is not to be measured by money alone, nor by physical comfort only. It must beread in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do.

(33) The conduct of the parents in relation to the child is obviously relevant in determining what is in his best interest. The parents' conduct towards each other may also be relevant if it reveals personality, or behavior problems which might adversely affect the child. But is matrimonial mis- conduct and responsibility for the breakdown of the parents' marriage "as district from conduct towards the child" to be taken into account in deciding custody issues? There has been a remarkable change of judicial policy on this issue in England. It was for long a settled rule of the divorce court that a mother who had been guilty of adultery should be deprived of care and control. It then came to be recognised that an adulterous mother could nevertheless be a good mother. (Willoughby v. Willoughby 1951 Probate J 84). Singleton L.J. said : "I have yet to learn that the fact that a woman commits adultery prevents her in all circumstances from being a good mother" (p. 192). In some cases even the conduct of the parent was a relevant factor. If one of the spouses was an innocent party it was thought that he was entitled to the custody. But even this is no longer accepted as a universal principle. It all depends on the facts of a particular case. Any attempt to formulate general pronoucements applicable in all cases will be likely to create more difficulties than it solves. What the court has to deal with is the lives of human beings and these cannot be regulated by formulae.

(34) Take the present case. The husband was held to have treated his wife with cruelty. He was the breaker of the home. His cruel conduct sounded the death knell of the marriage. No one can possibly be proud of that.

(35) On the facts of this case it appears to me that the mother is entitled to the custody of the children. The daughter Sophia is a young girl of 14 years. The mother can be relied upon to give that wise counsel and sure guidance that are so necessary to a young girl growing up and maturing through adolescence into a womanhood. As regards the son it will not be in their interest if brother and sister are separated. They have grown up together. The substitute care which the father can provide cannot outweigh the risks of separating these two children from their mother. Their interests will suffer if they are brought up in the home we of the stepmother. On the facts welfare of the children-this girl of 14 and a boy of 11-admits of no other solution.

(36) In practice, as the cases show, the mother now has a built-in-advantage in disputes over the care and control of young children since it will normally be difficult for a father to provide adequate material care for them. In any case the courts have been heavily influenced by the view that a mother's care is necessary for the child's proper psychological development. Hence a mother is likely to be given care and control because she is thought "not as a matter of law, but in the ordinary course of nature the right person to have charge of young children." (Re : K (minors), 1977 I All E, 647, 655 per Sir John Pennycuick ; Rosy Jacob v. Jacob, and Raj

Rani v. Subhash Chander, 23 (1983) Delhi Law Times 240 (DB).

(37) Much capital was sought to be made of the observations of Goswami J. in relation to the wife's character and conduct, that is visits of Vashist to the matrimonial home and the husband's protests with regard thereto. It was said that the wife is disqualified from claiming custody of the children on this ground. According to this view if the husband is morally blameless in relation to the breakup of marriage he ought to be given the custody. I do not agree, If the father, however innocent he may be, cannot provide the necessary physical and emotional environment, nothing can derogate from the court's duty to provide the solution which is for the child's welfare. The child's welfare has become the only factor to be taken into account and everything else is subordinate to it. In the end the judge has this single decision to made, namely, what is best for the welfare of the child ?

(38) Applying these principles it appears to me that there is no reason at all why the mother ought not to have the custody, care and control of the children. They are devoted to her and she is attached to them. The husband has remarried. The new partner he has taken will have her own children. The father had one child from the second marriage. But unfortunately he has died. Remarriage is a factor which has to be taken into account. If on that ground the husband is disqualified the natural mother must be given the custody. In many cases this must inevitably happen when a home is broken. To grant custody to the father would only lead to further unhappiness. The guardian judge has failed to give enough weight to the loving relationship between the mother and the children who are now grown up. Nor has he given due weight to the second marriage of the husband. The judge seems to me to have repeated one of the myths that the court has been trying to explode for many years. In the judgment he says:

"The mother has not absolved herself of the charge of adultery against her and rather thought not fit to contest the charge. Such conduct disentitles her from claiming the custody of the children."

He thought that the observations of Goswami, J. "reflect upon the way of life which the mother is leading at the moment and if the children are allowed to be in her company it may have adverse affect on their moral as well as physical growth." I cannot accept this view. Goswami, J. has not found that the mother is living in adultery. He was concerned only with the question of cruelty. He found that the husband was not cruel when Vashist visited his house and he protested. To say that this is a finding of adultery against the wife will be doing the grossest injustice to her. V/e live in a tolerant society. Adultery has to be put in issue and proved like a quasi-criminal offence. So the basis of the judge's order giving custody to the father was, in my view, unsound. He made a wrong decision. Founding himself on a narrow conception of moral welfare, he gave too little weight to the factors favorable and too much weight to the factors adverse to the mother's claim that she should retain care and control of the children. It is the duty of the appellate court to set aside the decision if it is satisfied that it is wrong. On the view I take the Judge's error was in the balancing exercise. Every case of custody involves a balancing exercise. It involves choices and risks.

(39) The relations between the parties are embittered. They are fighting in court, as I saw each of them, with inflamed passions. They are on the worst of terms. A state of acute hostility prevails between them. This sharpness of conflict between parents has made my task difficult. Even though the divorce proceedings have ended, the bitterness and mutual recrimination continue. There were allegations, counter-allegations, and mutual suspicions. The wife complained that the husband is following her everywhere to see that she is thrown out of employment by the employer and out of the house where she is living by the landlord. She showed me letters which, according to her, he had written under anonymous names to her employers and others describing her as a call girl and a smuggler. The husband denied this. I have not gone into the truth of these allegations, because that was not the scope of the proceedings. But what I have found is that there are unending accusations of one against the other even now that they are divorced,

(40) I have borne in mind throughout the children's welfare is the first and paramount consideration. I am convinced that it is in the children's interest to stay with their mother. To take them away from her would not only be wrong from their point of view, it would also, in my judgment, be a grave injustice to the mother. As I see, these proceedings are in fact a continuation of divorce proceedings which took place before Goswami J. I have, therefore, to keep in mind the characters and personalities of the claimants, before and after divorce, their rights and wrongs, their conduct and behavior, their quarrels, shoutings and unkindnesses.

(41) Under section 26 the court is enjoined to make a provision for the minor children "consistently with their wishes wherever possible". I have met these two children twice in my chamber and talked to them in private. Although the court cannot allow a young person of 14 to decide entirely for herself, the fact that she did at the moment have a very positive view cannot be ignored as a most important factor in the case. I cannot ignore the close relationship of the mother and the daughter. It appears to me that she is a caring and a loving mother. The children have attained the age of the discretion. One is 14 and the other is 11. They can make an intelligent preference. The girl will soon be on her own.

(42) Custody means physical possession. It means a bundle of rights or to be more exact a bundle of powers which continue until the child attains the age of 18 years. But as Lord Denning has pointed out :

"custordy is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is, It starts with a right of control and ends with little more than advice."

( Hewer v. Bryant, 1970 (1) Q.B. 357, 369).

(43) One other thing remains to be said. The wife is educated. She is a teacher. She was employed in a women's organisation. She produced her salary certificate. She earns from tuitions also. She can look after the education of the children. The husband's case is that the education of the children has suffered. They were removed from their previous schools, it is true. The girl was removed from Lady Irwin School and the boy from Frank Anthony Public School. I was at pains to ascertain whether they are being sent to a good school now. I found that they are reading in a good public school. I saw their progress report and their fee book. The mother has put them in a good school with whatever means she has. But she was not willing to disclose the name of the school in open court because she feared that the husband will remove them from the school. This will add to her difficulties, she said. She has asked me not to disclose the name of the school in my judgment.

(44) The question is whether the court is bound to disclose the name of the school to the father. He is very much insistent. In my opinion, I am not bound to disclose it to him in view of embittered relations between the parties and the vilification campaign which he is carrying on against his previous wife, as was alleged by the appellant. The inherent jurisdiction of the court is derived from the crown's prerogative power as parens patriae. The theory is that court is the guardian of all the infants in the realm. This invests the proceedings with a somewhat unusual character. Inasmuch as there is a justiciable issue between the parties the court is normally exercising a judicial function, but as its first duty is to protect the child irrespective of parents' wishes, its jurisdiction is also administrative. The House of Lords concluded in Official Solicitor v.K ((1965) Appeal Cases 201) that this entitled it to depart from the normal rules of evidence if this is necessary in the child's interest. It has always been accepted that the judge is entitled to see the child and each of the parents in private. In Official Solicitor v. K (supra) it was held that the judge may receive a confidential report from the child's guardian ad litem without disclosing it to the parties if he considers that disclosure would be detrimental to the child.

(45) Where the paramount purpose is the welfare of the minor, the procedure and rules of evidence should serve and certainly not thwart that purpose. The judge can hold proceedings in camera. He can see the children privately in his room when dealing with these cases. He can see each parent separately. This is left co judge's discretion. In the last resort the welfare of the child must dominate. Everything else is subordinate. This is the essence of the matter. (See Scott v. Scott, (1913) Ac 417, 437). No one disputes that this practice is free from objection or that these interviews are confidential. (In re A" at p. 235). As has been said :

"A principle of judicial enquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of principle of this sort does not serve the ends of justice, it must be dismissed otherwise it would become the master instead of the servant of justice."

(In re K p. 238 per Lord Devlin).

(46) This is an unusual step, no doubt. But this is necessitated by the exceptional circumstances of this case where I have found that the parties even after divorce have taken to the path of unending accusations and recriminations.

(47) PARENTS' pre and post-divorce behavior has induced me to take this unusual step. Apart from this it must be remembered that the wardship jurisdiction of the court is not ousted or abrogated. The wardship litigation is very different from other litigation. It is not an ordinary lis. In the words of Lord Cross :

"clearly a wardship case differs altogether from ordinary litigation. In an ordinary action the court has before it two parties, each of whom asserts that he has a legal right to a decision in his favor. The function of the judge is to act as umpire at the fight and to decide which side has won. In a wardship case the court is asked to take the child into its care and to decide how and with whom it is best for the child to be brought up. The role of the parties is to simply put before the judge for his consideration their suggestions with regards to the ward's upbringing."

( 83 (1967) Lqr p. 200, 207).

(48) It is right at this stage to say that in order to be satisfied myself whether the children were reading in some school I asked the Registrar to verify the fact from the school named by the children in my private interview with them. He has informed me that the children are actually reading in a public school, as deposed by the mother in her affidavit. The daughter is in 8th class and the boy is in 5th class.

(49) To summarise: I rest my judgment on the broad ground that the mother is entitled to the custody of the children ; and there is nothing in her conduct, her character, or her present position to induce any court to take away her children from her. I do not want to take the risk of sending the children back to the father who has remarried. That will produce a rankling sense of injustice and depression in them which will not only hinder their development, but can easily prejudice their whole future. My choice is for the mother.

(50) The welfare test is the ultimate criterion. It is the governing consideration. Between 1890 and 1955 the whole social attitude towards parents and children had changed and the law has continued to develop and will develop by reflecting the changing times, trends and tendencies. Gone are the days of the pater familias. Gone are the days of the absolute right of the father to the custody of his child. The change in the climate of social conditions has taken place gradually and its influence on the courts has been quite perceptible. The tide began to turn against the power and authority of the father. Under the impact of changing social conditions and the weight of opinion the Hindu Marriage Act was passed in 1955. Section 26 is directed to equalise the legal rights or claims of the parents, and seeks to achieve an equality between the sexes in relation to custody of minors. This is a statutory provision which is almost refreshing in its clarity. The section means what it says-no more and no less : if on a consideration of all the circumstances the judge considers that the paramount welfare of the minor demands a particular arrangement as being the proper one he shall make that arrangement. The stepmother has lodged an affidavit that she will act as the mother of the children. I think she cannot take the place of the mother. The mother has layers of love for her children. She can wipe the tear of every eye.

(51) The judge is required to give sympathetic consideration to the wishes of the minor if he is of an age fit enough to express an opinion. The court has the duty to consider the application on its merits before it. It must take into account all the merits and demerits of the alternative proposals as they seem likely to bear upon the child's welfare. In the end it must adopt the course most calculated to promote the welfare of the child. There is nothing permanent about the order relating to custody; it can be varied at any time.

(52) The more modern approach to the question of custody is represented by Gohar Begum's case. The modern feeling in these matters is that ties of affection ought not to be disregarded. Ved v. Ved be Beaumont Cj illustrates it. The equality of parents is much more pronounced in the Hindu Marriage Act. The authorities are not always consistent and the way along which they have moved towards a broader discretion had many twists and turns. No useful purpose will be served by a copious citation of authority. The Hindu Guardianship Act, 1956 has also put the rights of the mother on an equality with those 'of the father in relation to the custody of minors, and the tide has run more strongly against the father as the cases show.

(53) A child's future happiness and sense of security are always important factors. On the whole facts of this easel have come to the conclusion that the children should remain with the mother and the change of custody will prove detrimental to their interests. I am also of opinion that the aspersion cast on the character of the mother is without any substance. She has not forfeited her right to custody in any manner.

(54) For these reasons the order of the Guardian Judge dated 21.7.1983 is set aside. The appeal is allowed. The custody of the children will remain with their mother, until further orders. The parties are left to bear their own costs.

custody of child under section 26 of Hindu Marriage act,1955.

custody of child under section 26 of Hindu Marriage act,1955.

Arun Lata vs Civil Judge And Ors. 

Equivalent citations: AIR 1998 All 29, II (1997) DMC 383

Author: D Seth

Bench: D Seth

ORDER

D.K. Seth, J.

1. An application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20th March 1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12th May 1997. On 25th April 1997, both the learned counsel pointed out that the matter was fixed on 24th April, 1997 but by mistake the date was noted as 12th May, 1997 in the order dated 9th April, 1997. Accordingly the matter was fixed on 9th May, 1997 instead of 12th May, 1997 by an order dated 25th April, i 997 by the consent of the parties for the reasons recorded in the order dated 25th April, 1997.

2. On 9th May 1997, an application for amendment was tiled in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24th April, 1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20th March, 1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on day's list for hearing together with the application for amendment and the application for vacating the interim order.

3. Since the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.

4. The opposite party No. 2 Arvind Kumar and the petitioner Arun Lata were married on 4th May, 1980. Arvind Kumar is a lawyer practising at Bulandshahr. He instituted a suit for divorce being Divorce petition No. 208 of 1981 in the Court of Civil Judge, Bulandshahr on 23rd July, 1981. A child out of the wedlock was born on 15th March, 1982. The suit for Divorce was decreed ex parte on 5th May, 1982 (Annexure '1'). In the said suit, no interim order was passed with regard to the custody or maintenance of the child. Neither any provision with regard thereto was incorporated in the decree. On 23rd May, 1994, Arvind Kumar filed an application under the Guardians and Wards Act for the custody of the child. The same was registered as Misc. Case No. 22 of 1984. Arvind Kumar had also filed Case No. 440 of 1984 for certain other reliefs against Prakash Rani and others including Arun Lata before the Special Judicial Magistrate, Bulandshahr. At this stage, Arun Lata sought for transfer of respective cases from Bulandshahr to Delhi, on which the Hon'ble Supreme Court was pleased to issue notice on Arvind by an order dated 11th July, 1984 (Annexure '2'). By an order dated 20th February, 1985 (Annexure '3'), the Transfer Petition was disposed of. In the said order, it was recorded that both the parties had agreed that all the cases filed by them against each other would forthwith be withdrawn and that Arvind Kumar will pay Rs. 200/- per month regularly for maintenance of their only son with effect from March 1, 1985. Accordingly the parties had undertaken to withdraw all the cases. In terms of the said order dated 20th February 1985 both case No. 440 of 1984 and Misc. No. 22 of 1984 were withdrawn by Arvind Kumar.

5. Subsequently on 30th September, .1991, Arvind Kumar filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act against Arun Lata for the custody of the said child. And 20th October, 1991 was the date fixed in the said Case No. 200 of 1991. She sent a telegram on 21st October 1991 (Annexures '4' and''5')intimating the Court that she had fallen ill and, therefore, the case may be adjourned. The said Case No. 200 of 1991 was ultimately allowed ex parte by an order dated 26th October, 1991 (Annexure '6'). Arun Lata filed Misc. Case No. 239 of 1991 for setting aside the ex parte order dated 26th October, 1991. On account of non-appearance of her counsel, Misc. Case No. 239 of 1991 was dismissed by an order dated 20th, November, 1992 (Annexure '7'). Arun Lata filed Misc. Case No. 134 of 1992 for restoration of Misc. Case No. 239 of 1991. By an order dated 14th May, 1993, on account of non-appearance of Arun Lata's counsel. Misc. Case No. 134 of 1992 was dismissed for default. Arvind Kumar thereupon filed an application under Section 28-A for execution of the ex parte order dated 26th October, 1991. The same was registered as Execution Case No. 34 of 1993 in the Court of the Civil Judge, Bulandshahr. The said execution was allowed by an order dated 31st May, 1993 passed ex parte (Annexure '12'). In the said order, a direction was given to the Senior Superintendent of Police, Bulandshahr to provide police assistance for bringing the child and produce him in the Court on 5th July, 1993 for delivery of custody to Arvind Kumar. For compliance of the said order, 13th August, 1993 was fixed. Arun Lata has now filed this writ petition seeking to quash the orders dated 31st May 1993 and 26th October, 1991.

6. By an order dated 12th August, 1993 passed in the present writ petition, the operation of the order dated 31st May, 1993 was stayed till further orders. It is this order which has been sought to be vacated by means of the application for vacating the interim order by Mr. Govind Krishna appearing on behalf of Arvind Kumar.

7. By an application for amendment, the following amendment has been sought to be incorporated :

"1. That in the title of the petition, wherein it has been stated that writ petition under Article 226 of the Constitution of India, should be added as "under Articles 226/227 of the Constitution of India" be added;

2. That in the grounds after ground No. G the following ground be added :

"H. Because in view of the order of the Hon'ble Supreme Court dated 20-2-1985, it was not open to the respondent to file a petition for the custody of. Master Nipun'.

3. That in the prayer clause after prayer No. V the following prayer may be permitted to be added :

VI. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the order dated 20-6-1992 passed in Misc. Case No. 239 of 1991 and the orders dated 13-4-1992 and 14-5-1993;

VII. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the ex parte decree passed in Matrimonial Petition No. 208 of 1991;

VIII. To issue a writ, order or direction in the nature of mandamus directing the respondents not to give effects the orders dated 20-5-1992, 13-4-1992 and 14-5-1993."

8. Mr. Govind Krishna opposed the said amendment on the ground that the same having been made at such a belated stage, the amendment should not be allowed. He also contended that the amendment, if allowed, would not only change the complexion of the case made out by the petitioner, it would also change the whole nature and character of the proceedings. Mr. Kumar on the other hand, contended that amendment would neither change the complexion of the case nor would have the effect of changing the nature and character of the case. The situation is as such that the delay cannot stand in the way of allowing the amendment in the special facts and circumstances of the present case. Inasmuch as it is only another point of view on which the orders impugned could be assailed has been sought to be incorporated as ground. It is only in effect supplemental and are elaboration of the grounds already taken. The objection taken is technical since the order dated 26th October, 1991 has already been challenged. The other three orders dated 13th April, 1992, 20th may 1992 and 14th May, 1993 have been sought to be included by way of mere formalities. Therefore, the amendment should be allowed.

9. I have heard both the counsel on the question of amendment. The fact remains that it was the order dated 29th October, 1991 in execution whereof the order dated 31st May, 1993 was passed and these are the two principal orders on which the rights of the parties survive in favour of or against the one or the other. The other two orders dated 13th April, 1992 and 20th May, 1992 are the orders by which the applications for recalling the order dated 26th October, 1991 were dismissed for default. Therefore, those are only ancillary orders. In case the order dated 26th October, 1991 is set aside, then the said orders dated 13th April, 1992 and 20th May, 1992 would become redundant and/or non-est. Similarly if the order dated 26th October, 1991 is set aside, then again the ex-parte order and the execution thereof passed on 14th may, 1993 would similarly become redundant and non-est. These are pure technicalties. When the two principal orders have been challenged, simply because of a technical flaw in not challenging the said three orders, the writ petition cannot be thrown away and would very well be maintainable even without the same if on merit or otherwise the order dated 26th October, 1991 could be or is interfered with in exercise of the discretionary power under Article 226. The amendment seeks to incorporate a ground and three prayers which does not in any way change the nature and character of the proceedings. Neither it has any effect on the complexion of the case made out. Therefore, the amendment sought to be incorporated, by no stretch of imagination, could be said to be inconsistent with the pleadings.

10. The application has been originally inscribed as one under Article

226. By amendment it was also sought to be inscribed alternatively as one under Article 227. Whether the application is maintainable under Article 226 or 227 would be dealt with later on. Whether this Court will exercise its discretion either under Article 226 or 227 would also be gone into subsequently. For the purpose of allowing the amendment, it is not required to go into those questions, it is the jurisdiction which is being sought to be invoked. In case a particular kind of proceedings is not maintainable and a different kind of proceeding lies in respect thereof, the Court has jurisdiction to convert the one into the other subject to limitation and Court-fee, as the case may be. This question will also be gone into later on when the question of maintainability as has been raised by Mr. Govind Krishna will be dealt with. At this stage, in view of the legal propostion that this Court has jurisdiction in appropriate cases to convert a proceeding from one into the other, for the sake of deciding the question of amendment, it is not required to be gone into the said question. Subject to the objection taken on the question of maintainability of the writ petition and its conversion into one under Article 227, the amendment as a whole is hereby allowed and shall be deemed to be incorporated in the writ petition.

11. Mr. Govind Krishna contends that the jurisdiction under Article 220 and Article 227 are altogether different. The petitioner has to make a choice which jurisdiction he seeks to invoke. It is an option exercised by the petitioner. If opted for one, the other shall be deemed to have been waived by the petitioner. By way of amendment, he cannot opt for the other since been waived. The petitioner cannot opt for both on being indecisive. In such cases, he contends that though the Court has jurisdiction to convert the one into the other, the Court should not exercise its discretion in favour of the petitioner which he had deliberately given up earlier. Secondly he contends that the scope of Article 226 and 227 cannot go together and, therefore, an application cannot be treated to be an application under either one or the other.

12. Under Article 220, the High Court exercises the jurisdiction conferred on it by the Constitution to issue writs against any person. The exercise of writs are restricted by the restraint exercised by the Court upon itself. Writ as it originally conceived was available against the State and the authority within the meaning of Article 12. The concept of authority under Article 12 has been widely expanded by various judicial pronouncements and has developed to an extent as it stands today. By reason of development in law, the horizon of Article 12, has been extended not only to include the State and the other authorities but also the agencies and instrumentalities of the State (See Ramanna Daya Ram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, Ajay Hasis v. Khalid, AIR 1981 SC 487 and Central Inland Water Transport Corporation v. Brojo Nath Ganguli, AIR 1986 SC 1571).

13. The organs of the sovereign has been divided into three-legislature, executive and the jurisdicary. Article 12 while defining "the State" included the Government and parliament of India and the Government and the Legislature of each of the States and local and other authorities within the territory of India or under the control of the Government of India. This definition has been included in Part III in relation to Fundamental Rights. Whereas in Part V dealing with the Union in Chapter I, it mentions Executive and in Chapter II it mentions Parliament. While Judiciary has been dealt with in Chapter IV. Similarly in Part VI dealing with the States, Chapter II deals with the Executive while Chapter III relates to the State Legislature and Chapter V deals with the High Courts in the States. Fundamental rights are available against the State. These fundamental rights are enforced under Article 226 through High Courts. The Courts while discharging judicial functions is not a State and no fundamental right is available against the judiciary when it discharges judicial functions. The Judiciary may be State in relation to a certain class of people when it exercises administrative functions over them. Judiciary cannot be State for enforcement of fundamental rights in its relation with the litigants who come for enforcement of their rights through judiciary. That was the reason, despite existence of Article 226, immediately thereafter Article 227 has been engrafted conferring overall superintending power on the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Similarly Article 32 has been engrafted in relation to the Apex Court. The learned counsel for the opposite party contends that since the order impugned is an order passed by a Civil Court, it is not amenable to writ jurisdiction particularly when the dispute is a dispute between two private persons, as has been held in the case of Matthan Singh v. II Additional District Judge, Meerut, (1996)1 All Rent Cas 117.

14. The question was considered in the case of Ganga Saran v. Civil Judge Hapur, AIR 1991 All 114 by a Full Bench of this very Court in which the principle was laid down to the extent that writ will lie against an order passed by the Civil Court where "either appeal or revision under Section 115, C.P.C. is available to the High Court because of the amendment of Section 115, C.P.C. at Allahabad on the same principle on which the jurisdiction under Article 226 is exercised provided that there has been violation of fundamental principles law and the relief sought for is not a relief which the other side is not obliged to perform in discharge of his public duty. The decision in the case of Matthan Singh (supra) is not an independent decision but is an understanding on the reading of the ratio decided by the Full Bench in the case of Ganga Saran (AIR 1991 All 114) (supra).

15. In the present case, the relief sought against the order does not emanate from any obligation to perform anything in discharge of public duty by either of the parties. The lis is between two private persons, none of whom is obliged to discharge any public duty in relation to the dispute concerned. There is no lis against the Judge or the Judiciary, while discharging judicial function, the Courts decide dispute between the parties. It never becomes a party to the lis and there being provisions for appeal and revision either under Section 115, C.P.C. or under Article 227, as the case may be, the jurisdiction under Article 226 can not be invoked, even though the test of violation of fundamental principles of law is satisfied. Therefore, in the facts and circumstances, of the case, the application under Article 226 of the Constitution of India is not maintainable against the orders impugned.

16. The learned counsel for the opposite party contends that if the application itself is not maintainable, there cannot be any scope of allowing an amendment in a non-maintainable proceeding. If the Court does not have the jurisdiction to entertain the writ petition, in that event, it cannot assume jurisdiction to amend the said writ petition in respect of which the Court cannot exercise jurisdiction. The scope of the two Articles being altogether different, the amendment if allowed altogether changes the nature and character of the proceedings.

17. The second contention of the counsel for the opposite party, as above does not stand to reason because of the fact that the nature of the proceeding is in substance a revision. While exercising writ jurisdiction, the High Court exercises its power of revision. It does not sit on appeal but a review of the manner in which the decision was made. The jurisdiction exercised under Article 227 is also a revisional jurisdiction. In exercise of Article 227, the High Court does not sit on appeal but revises or reviews the process making the decision or the jurisdiction or otherwise. Therefore, in substance the jurisdiction exercised under Article 226 and under Article 227 are substantially a revisional jurisdiction. The only difference is that the revision under Article 226 is exercised against the State or other authorities falling within the ambit of Article 12 while jurisdiction under Article 227 is that of superintendence over the Courts and Tribunals within the territory over which the High Court exercises its jurisdiction. It is only the authority whose order is being revised makes the distinction or difference as to which revisional power would be exercised by the High Court (226 or 227). Therefore, by reason of conversion of application from one under Article 226 to one under Article 227 does not change the nature and character of the proceeding. It remains are visional proceeding in either of the two cases. So far as the first part of the above contention of the opposite party is concerned, the same cuts at the root of the jurisdiction of the High Court to convert one into other. By now it has been a settled principle of law that the High Court has power to convert an appeal into a revision or a revision into an appeal subject to limitation and Court-fees, as the case may be. In the present case, neither under Article 226 or under Article 227, there is any provision provided for limitation. Though, however, delay in invoking the jurisdiction is a factor to be taken into consideration, similarly the question of Court-fee also docs not pose any hindrance in the present case inasmuch as the Court-fees in respect of an application under Articles 226 and 227 are one and the same.

18. The contention of the counsel for the petitioner that by reason of such amendment, the Court is creating jurisdiction in itself which it did not possess when the application was originally made. The Court cannot create jurisdiction through amendment in an application which was not maintainable as it stood when the amendment is being made.

19. The above contention is not acceptable because of the reason that the Court cannot create jurisdiction if it does not possess the same. Here by reason of amendment, no jurisdiction is created. The High Court is in possession of different jurisdictions under Article 226 and under Article 227. It is exercising in its discretion as to which jurisdiction it would exercise. The power of superintendence as conferred by Article 227 is ingrained in the High Court. This power of superintendence includes power of judicial revision to get the inferior Courts and Tribunal within the bound of their authority to see that they do what their duty requires and that they do it in a legal manner (See D.N. Banerjee v. R.K. Mukherjee, 1953 SCR 302 : (AIR 1953 SC 58). The power of judicial superintendence conferred by Article 227 is not limited by technical rules which govern the exercise of the power to issue writ to certiorari under Article 226. The power under Article 226 can be exercised only on an application of a party. But the power under Article 227 may be exercised by the Court also suo motu (See Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1995) 1 SCR 1104 : (AIR 1955 SC 233). The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. Though there is no period of limitation prescribed for such application which may be refused inter alia on the ground of unreasonable delay which is not explained by special circumstances and particularly were by reason of delay the position of the opposite party has changed. Therefore, even if the High Court in its discretion thinks it can interfere with the matter is exercise of its power of superintendence, there the conversion would not affect materially the jurisdiction conferred on the High Court itself which is already in existence. That apart in the case of The Reliable Water Supply Service of India (P) Ltd. v. Union of India, AIR 1871 SC 2083 the High Court's power to convert one into other has been recognised.

20. In the present case two orders have been challenged one dated 31st May, 1993 and the other 26th October, 1991. The writ petition was moved on 12th August, 1993 having been affirmed on 16th July, 1993. Therefore, so far as the order dated 31st May, 1993 is concerned, there was no question of delay. But so for as the order dated 26th October, 1991 is concerned, the same stands explained by reason of the statements made in the petition itself that two attempts to set aside order had failed and that in what circumstances the order dated 31st May, 1993 was passed. Therefore, it cannot be said that the delay remains unexplained particularly when from one order impugned in the petition, there is no delay at all. Therefore, I have not been able to persuade myself to agree with the contention of the learned counsel for the opposite party in this regard.

21. Now on the question of merit, the counsel for the opposite party contends that since both the orders impugned are orders either passed under Section 26 or flows from it, an appeal lies under Section 28 of the Hindu Marriage Act to the learned District Judge because of Section 19 of the Family Courts Act. Therefore, even if the High Court has power of superintendence under Article 227, even then it cannot convert the application under Article 227 into one under appeal since the appeal lay before the learned District Judge and not before the High Court. Alternatively he argues that even if the application under Article 226 is converted into under Article 227, the same cannot be exercised when there is an alternative forum by means of an appeal.

22. Admittedly if an adequate alternative remedy lay and if the same has not been availed of, the jurisdiction under Article 227 cannot be invoked as has been held in the case of Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, AIR 1976 SC 2446 (Para 6), wherein it is further observed :

"It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of the applicant."

23. In the case of Shanker Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 : 1969 (2) SCC 74 (78) it was held that if two remedies were open and the party had exhausted one it would not be sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. But in the present case, the other mode of relief has not been invoked or exhausted. Hence it is a case where the Court has to exercise one or the other of the modes if one does not apply and the other does. Therefore, it has to be looked into as to how far the contention of the counsel for the opposite-party works in favour of his contention or against that of the counsel for the petitioner.

24. The counsel for the opposite party contends that an appeal lies under Section 28 of the Hindu Marriage Act from an order passed under Section 26 of the said Act before the Court such appeal lay from an order passed by the Court. According to him, by reason of Section 19 of the Family Courts Act, the order has been passed by the learned Civil Judge who is conferred with the jurisdiction under the Family Courts Act. Ordinarily an appeal lies to the District Judge from an order passed by the Civil Judge. Therefore, in terms of Section 28, the appeal lies to the District Judge and not to the High Court. Therefore, there is no scope for conversion of the proceedings into one under appeal.

25. The above proposition does not appeal to me for the simple reason that under Section 19 of the Hindu Marriage Act, every petition under the said Act is to be presented before the District Court as defined in Section 3(b) thereof being the principal Civil Court of original jurisdiction or any other Civil Court notified by the State Government. An appeal from the principal Civil Court of original jurisdiction lies to the High Court as is understood from the scheme as expressed in Section 28 of the said Act. The issue is further clarified in a clear and unambiguous expression used in Section 19 of the Family Courts Act providing therein that an appeal shall lie from every judgment and order of a Family Court to the High Court notwithstanding anything contained in the Code of Civil Procedure or in any other law. The jurisdiction exercised by the Civil Judge is conferred by reason of Section 7 of the Family Courts Act as established under Section 3 of the said Act. Therefore, it cannot be said that the High Court cannot invoke its power to convert a revision into a memo of appeal or vice versa as sought to be urged by the learned counsel for the opposite party.

26. Section 26 of the Hindu Marriage Act provides as follows :

"26. Custody of children. -- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose; make from time to lime, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made".

27. The said Section postulate that the Court may pass interim orders or may make provision in the decree with regard to the custody, maintenance and education of the minor children consistently with their wishes, wherever possible. Where such provision is made either by way of an interim order or in the decree, in such cases, after the decree, further applications can be made in respect of the custody, maintenance and education. By such decree or interim order and for such purpose, the proceeding for obtaining such decree shall be deemed to be pending. The Court may also revoke, suspend or vary such orders and provisions previously made. The scheme of the Section clearly indicates that the power under Section 26 can be exercised by way of interim order in the pending proceeding or while disposing of any such application made therein before the decree is passed or at the time of passing the decree by incorporating such provision in the decree itself, such provision can also be made. The power under Section 26 can also be exercised after the decree is passed only if such orders were passed previous to the decree either by way of interim order or in the decree itself, it is clear from the expressions used that only on these conditions as referred to above, the Court can exercise jurisdiction under Section 26. In view of the clear and unambiguous expression used, it does not postulate any other contingency. Inasmuch as if no order towards that end is made either by way of interim order or otherwise in the pending proceeding or it is not incorporated in the decree itself, in that event, the Court cannot assume jurisdiction to decide an application under Section 26 of the Act after the decree is passed, namely, whereafter the proceeding terminates and does not remain pending, the deeming clause postulates deemed pendency only in cases where provisions were made either by interim order or otherwise during the pendency of the proceeding or in the decree itself and not otherwise. My above view finds support from the clear and unambigous expression used in the Section itself. The expression "previously made" read with the expression "such provisions ............... as might have been made by such decree or interim orders', there is no scope for any ambiguity i n the scheme itself. The language is very clear and simple There cannot be any other meaning because of the expression used in the said Section. When the meaning of a statute is available on a true construction by the plain meaning, the Court cannot add or substract anything therefrom. The principle of interpretation does not permit the Court to find out any other meaning when the language is clear, unambigous, sure and simple. In the present case, the language and expression used in Section 26 is clear, simple, unambigusous, sure and certain.

28. Section 26 does not confer an independent right to any person. It is a right conferred on the parties to a litigation litigating under the Hindu Marriage Act only in a pending proceeding and the proceeding deems to be pending as mentioned above. If no proceeding is pending, Section 26 does not create any right for initiation of a proceeding independent of a proceeding under the said Act.

29. It is also not contended by the counsel for the opposite party that the said proceeding is a suit or proceeding in relation to the Guardians and Wards Act and independent of the earlier proceedings for divorce. But, however, in the order dated 26th October, 1991, it is recorded that the opposite party was she guardian of the child according to the Hindu Minority and Guardianship Act and, therefore, he is entitled to the guardianship and custody of the child. The learned counsel for the opposite party contended that the earlier application for the custody of the child was under the Guardian and Wards Act or under the Hindu Minority and Guardianship Act. The order dated 20th February, 1985 records that the cases filed by each of them against the other will forthwith be withdrawn. The parties had undertaken to withdraw all the cases. Accordingly Arvind Kumar had withdrawn the cases. After having withdrawn, he is precluded from making any further application. The order, however, refers to an order dated 5th September, 1991, wrongly printed as 5th September, 1993, passed by the Apex Court but no such order is being produced before this Court. Even in the written statement filed by the counsel for the opposite party, no reference has been made to the order dated 5th September, 1991 except that the opposite party had filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act in connection with Matrimonial Case No. 208 of 1991. Therefore, it is not a proceeding within the meaning of Section 7(1), Explanation (g) of the Family Courts Act. On the other hand, it was clearly a miscellaneous proceeding as asserted by the counsel for the opposite party under Section 26 of the Hindu Marriage Act filed in connection with the said Original Matrimonial Case No. 208 of 1991. The jurisdiction of the Family Court is confined in respect of the suits in proceedings of the nature referred to in the Explanation to Sub-section (1) of Section 7 and not otherwise, Clause (g) of the Explanation to Sub-section (1) of Section 7 refers to "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, a minor." The jurisdiction of the Family Court having been specifically provided, it can assume jurisdiction in respect of suits or proceedings, the nature whereof does not fall within one or other of the Clauses (a) to (g) of the said explanation. The Family Court cannot assume jurisdiction in respect of any other proceeding. Though the Family Court could exercise jurisdiction under Section 26 in a proceeding of the nature contemplated in Clause (a), hut because of Section 26 of the Hindu Marriage Act, no application under Section 26 could be made before the Family Court in connection with the proceeding of the nature contemplated in Clause (a) since no such proceeding is pending before the said Court which had already stood terminated by the passing of the decree. An application under Section 26 of the Hindu Marriage Act does not fall within the category provided in Section 7(1)(g) of the Family Courts Act.

30. Therefore, in the facts and circumstances of the case, the Family Court could not have assumed jurisdiction to decide the said application under Section 26 of the Hindu Marriage Act and try Matrimonial Suit No. 208 of 1991 which was not pending in the facts and circumstances of the case. As such the order passed is wholly without jurisdiction. Therefore, it is amenable to the jurisdiction exercised by this Court under Article 226 of the Constitution of India.

31. Now on the facts it is alleged by the petitioner that she was not being represented by the counsel engaged by her on the date when her applications were dismissed. She alleges that such a situation was brought in by reason of the influence exercised by the husband who happened to be a practising lawyer in the said Court. The husband had initiated the proceeding for divorce even without waiting for the birth of the child. The child was born only in March, 1982 whereas the ex parte decree was obtained on 5th May, 1982. The husband has alleged that he was not aware of the birth of the child till 1991. The husband never cared either for the wife or for the child and filed the suit for divorce in July 1981 and sought for guardianship and custody of the child after long 9 years when he had withdrawn his earlier petition in 1985. That he was not aware of the birth of the child is a misstatement on the face of the record that he had made an application for the custody of the child under the Guardians and Wards Act in May, 1984 which he had ultimately withdrawn.

32. That apart the impugned order dated 26th October, 1991 does not show that the wishes of the child was ever attempted to be taken into consideration. While deciding the case, the Courts had been exercising the jurisdiction of the Family Court which has been established with the object at bringing in a conciliation in the relation of the families as provided in Section 9 of the said Act which requires the Court to endeavour for settlement of the dispute. The word 'endeavour' occurred in Section 9(1) being preceded by the word 'every' signifies great importance in respect of the duty cast on the Court to bring about reconciliation. My attention has not been drawn to any such attempt to have been made towards reconciliation or any attempt to settle the dispute. The order impugned or any other order does not show that the wishes of the child was taken into account.

33. It is a settled principle of law that the paramount consideration for the custody of a minor child is the welfare and well being of the child and other considerations are subordinate. There is no rule of law that rights and wishes of parents should prevail over other considerations'. Such rights and wishes are recognised by nature and the society. But such rights are capable for administering to the welfare of the child. The parental rights remain qualified and not absolute for the purpose of investigation. Concern has been expressed by the Courts out of growing experience that serious harm may be caused even to any children by change in the custody, a difficulty which cannot be resolved by purely theoretical considerations. The mere desire of a parent should be subordinate to the consideration of the welfare of the child. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, it was held :--

"The Court will generally refuse to give the custody of minor children to the guilty party, whether husband or wife. The section gives a wide discretion to the Court to make such orders as it may deem just and proper and whenever a marriage is dissolved or an order for judicial separation is made, it becomes the duty of the Court to take into consideration the welfare of the children which is of the paramount importance. The wishes of the mother or the father to have the custody of the child, cannot override the consideration of the welfare of the child."

34. In Hari Chand Rattan Chand v. Virabala, (1974) 15 Guj LR 499: (AIR 1975 Guj 150), it has been held :

"Where the minor has a settled home the Court is not to pass a mechanical order removing the child to another home without consulting the parents and ascertaining the wishes of the minor. The Court has also to see that happiness of a child is linked with his associates, his work, his school and finally on his home, where he gets all the love and affection needed for his proper growth."

35. Where the application for custody of her minor male child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise. In a case before Delhi High Court, Suraj Prakash v. Santosh, 1979 Mad LR 161, it was held, "the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change in circumstances." Though the section requires that wherever possible the wishes of the minor children should be consulted by the Court before passing any order under the section, particularly in the matter of their custody but I.D. Dua, J. who delivered the judgment in Chander Prabha v. Prem Nath, AIR 1969 Delhi 283 held that in a case of conflict between father and mother when the child is below five years of age, the mother has been rightly endowed with a preferential claim in regard to the child's custody as in such cases the child is not capable of forming any intelligent preference and expressing it. In case of a child of tender age, care of the child will be taken much better if he is kept with his mother. In Mohini v. Virender, 1976 HLR 305 (sic), the Supreme Court held :

"The modern trend seems to be that in case of conflict between the mother and father regarding the custody of a child of tender age, preference should be given to the mother in the interest and welfare of the child. Age of the child cannot be held to be the Sole deciding factor regarding his custody and in a case where the age of the boy was eleven years, custody of the child was given to the mother as the welfare of the child warranted it so."

36. The Society is in evolution and has been changing. Old concepts and thoughts are being replaced by new concepts and thoughts. The concept of penance and penance only by the Weaker section of the society viz. the women folk has undergone a change. If the men folk could remarry and the children could carry on with the father then how it would be conceived to be a taboo if the wife remarries and the child or children carries with her. The attitude and outlook of a fast changing developing society has to keep abreast the developed situation if it is good for the reorganised family. Law is for the society. Society is not for law. Therefore, the law has to keep itself abreast with the changes through evolutions and be alive to suit the needs to maintain a healthy and peaceful society vis-a-vis the family. Therefore, orders in this respect are to be passed with due, care and caution having regard to the facts and circumstances of the case.

37. The fact remains that the decree was passed ex parte on 5th May, 1982 on the Divorce petition filed on 23rd June, 1981 while the child was born some time in March, 1982. Therefore, there was no scope for anything to be provided either by way of interim order or any decree with regard to the custody, maintenance and education of the child. The learned counsel for the opposite party has not been able to show anything that the decree contained any provision with regard to the custody, maintenance or education of the child nor he has shown anything that there was any interim order in respect thereof. The application under Section 26 being Case No. 208 of 1991 was filed some times in 1991 long after the decree. By reason of such application, the Court had no jurisdiction to entertain the same since the proceedings for obtaining the decree could deem to be pending only when such orders are provided either in the interim order or in the decree. If no provision in respect of custody etc. is made either in the interim order or in the decree for the purpose of Section 26, the proceeding terminates with the passing of the decree. By no stretch of imagination, it can be deemed to be pending under Section 26 in view of the specific expression used, as indicated above.

38. If the Court does not have jurisdiction and the application is entertained by misconceived notion and the jurisdiction is exercised though it had none, the order is a nullity. In absence of any jurisdiction, the order can, in no way, be treated to be an order in exercise of such jurisdiction. Therefore, the order in the present case, by no stretch of imagination, could be said to be an order passed under Section 26 of the Hindu Marriage Act and, therefore, no appeal can lie against such order under Section 28(2). The order under Section 26 as has been made appealable under Sub-section (2) passed in proceeding under the Hindu Marriage Act indicates by reason of expression used in the said Sub-section (2) that the said order is to be passed as contemplated within the meaning of Section 26 only when the same is an interim order. Such orders can be appealable even if passed after the decree provided the proceeding is deemed to be pending on satisfaction of the conditions as mentioned in Section 26. Once the decree is passed without any provision either by way of order passed on interlocutory application or in the decree itself, in that event, the decree becomes final and it cannot be revived for the purpose of being deemed to be pending by filing of any application subsequent to the decree. Section 26 is provided for passing order of custody by way of interlocutory measure in a matrimonial proceeding. The relief with regard to the custody and maintenance of a child is provided in the Guardianships and Wards Act and in the Hindu Minority Guardianship Act, 1956. Such relief can be had independently, even without a matrimonial proceeding under the Hindu Marriage Act or any other Marriage Act, under the provision either under the Guardians and Wards Act or under the provision of the Hindu Minority and Guardianship Act, as the case may be. Only to avoid multiplicity of proceedings. Section 26 has been engrafted for the intention of granting relief with regard thereto if a proceeding is pending. But as soon the proceeding terminations, Section 26 cannot be available. If such an interpretation is given, in that event, it will be a parallel statute with those of the Guardianship and Wards Act and the Hindu Minority and Guardianship Act. Such an interpretation would be preposterous. The phrase "orders made by the Court in any proceedings under this Act under Section 25 or Section 26 clearly indicates that such appeal lies against the order passed under Section 26 in a pending proceeding and not otherwise. Therefore, in the present case, the impugned order, in the facts and circumstances of the case, not being an order under Section 26 passed in a proceeding under the said Act, since none were pending, is not appealable under Sub-section (2). The proceedings, not being one under Section 7(1)(g) of the Family Courts Act or a proceeding arising out of one under Section 7(1)(a), the order impugned is also not appealable under Section 19 of the Family Courts Act.

39. The fact as disclosed above is s o aggrevating, it is the duty of the Court to activate itself to put the things straight when the process are patently staring on the face of it as an abuse of it. It is the duty of the High Court to keep the subordinate Court within the limit of its jurisdiction even suo motu when such matters arc brought to its notice. Both Article 227 of the Constitution and Section 115 may be exercised without any application. Such observations is supported by the view expressed in the case of Jatindra Mohan Nandy v. Krishnadas Nandy, 56 Cal WN 858 : AIR 1953 Cal 34 (Para 6 of AIR) wherein it was held :--

"In any event this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us."

40. Mr. Justice P.N. Mookherji, in the case of Mahendra Dutta and Co. (P.) Ltd. v. Uma Charan Lal, (1964) 68 Cal WN 179 (DB), presiding over the Division Bench had laid down :

"It is hardly arguable that a point, which goes to the root of the Court's jurisdiction cannot be taken in a revision application if the said point has not been urged before the trial Court. That will practically nullify the revisional powers of this Court in very appropriate cases in many instances. If the trial Court has passed an order, which it had no jurisdiction to make, or which was made in the irregular or illegal exercise of its jurisdiction. This Court will be failing in its duty if it does not revise the same simply because the point of jurisdiction was not taken in the trial Court. It is of course true the exercise of the revisional power of this Court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, if the exercise of this discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this Court, simply because it was not taken in the trial Court."

"......It seems to us that when the Rule comes up for final hearing before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other taken the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection. The Court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. Indeed, in every rule issued by this Court, we have the residuary clause, "such other or, further order as to this Court may deem fit and proper." In our view, those words are comprehensive and wide enough to include all appropriate revisional grounds and to allow this Court to interfere in a proper case even on a ground which was not taken at the time the rule was issued, or upon which the Rule was not initially issued. In the other words, such interference may well be made even on a ground other than the one on which the Rule was issued.

In short, in a matter of this kind, where a question of jurisdiction is involved, to deprive a party of suitable relief under the revisional powers of this Court on the ground that the particular objection was not taken in the trial Court, or that even if it was taken in the trial Court, as Rule was issued on that ground, would be to de feat the ends of justice and, in any view, such a restricted interpretation of the scope of the revisional powers of this Court would not be consistent either with law or with the principles of justice, or with precedents or authority."

41. Following the said two decisions the Hon'ble Mr. Justice N.K. Mitra in the case of M/s. Dwarika Das Raghubir Prasad Chaudhary, (1987) 1 Cal LJ 479.

"The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned."

42. Similar view was taken following the above decisions in the case of Ratan Muni Jain Intermediate College, Agra v. Director of Education (Secondary), Allahabad, AIR 1997 All 163.

43. The facts of the present case, as disclosed above, are such as this Court is required to intervene because of the reason that proceedings in which the impugned orders were passed were wholly outside the scope and jurisdiction of the learned single Judge, as has been observed earlier. Therefore, the impugned orders dated 26th October, 1991 and 31st May, 1993 (Annexures '6' and '12') are hereby set aside.

44. In the result, this revision application under Article 227 of the Constitution is allowed.

There will, however, be no order as to costs