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
