DATE: 17th March, 2021
- A. M. Khanwilkar
- B. R. Gavai
- Krishna Murari
- Aman Lohia (APPELLANT)
- Kiran Lohia (RESPONDENT)
SUBJECT: In the present judgement the court is dealing with issue of guardianship of a child. The question before the court is whether the Family Court adhered to the principle of natural justice or not. Also, whether the orders passed by the family court were in accordance statutory provisions or not.
1. In the present case, the Supreme Court is hearing an appeal against the orders passed by the family court though which the court granted the custody of minor daughter to wife.
2. The appellant in this case is the father of a minor girl who filed a custody petition u/s 7 of Guardians and Wards Act stating that the child was in his custody at the relevant time. He sought to be appointed and declared as the guardian of person of the baby girl.
3. A notice for the same was issued in February 2018. However, the respondent had not responded to the notice until it was August 2018, when the appellant had moved an application asking for amendment of the petition u/s 151 of CPC. However, nothing on record showed that the application was dealt and disposed by the family court. Thus, the appellant filed another application u/s 151 of CPC and section 10 of Family Courts Act for amendment. However, the respondent, this time too, did not issue any response.
4. Since the respondent was not giving any response to any of the application filed by the appellant, he filed another application in Civil Contempt Petition.
5. The respondent thereafter filed an application u/s 151 of CPC for declaring and appointing her to be the sole and absolute guardian of the child and as far as the appellant is concerned, no notice was issued to him for the same.
6. It was alleged by the respondent in her application that the appellant had proved to be unworthy, incapable and incompetent to discharge any parenting privileges.
7. Further, the respondent filed one moiré application to transpose her as petitioner in the guardianship petition. The notice for the same was once again not served upon the appellant.
8. In its order the court stated that the appellant had abandoned and withdrawn from the case despite having knowledge about the pending proceedings and transposed the respondent as petitioner in the guardianship petition. Further, the family court held that in the best interest of the child, her mother, i.e; the respondent is declared as the sole, exclusive and absolute guardian of the child.
9. Aggrieved by the above decision, the present appeal is filed in which it is argued that the family court has failed to adhere to the established practice and procedure as per the statutes.
10. It is mentioned in the order that the report concerning the service of notice was still awaited. Also, the appellant was not served with any notice regarding the application filed by the respondent u/s 151 of CPC. Copy of application for transposing the respondent as petitioner was also not served.
11. Therefore it was alleged by the appellant in the present petition that the family court passed orders at behest of respondent while completely disregarding the mandatory procedure which is violative of principle of natural justice.
12. The appellant further contends that assuming the fact that appellant has abandoned the case when he has not stated the same before the court is not open to the family court. The same is question of fact and not something to be deduced by legal presumptions.
13. It was further contended by the appellant that transposition does not arise in guardianship petition and thus, the application filed by the respondent u/s 151 should be treated as substantive petition.
14. The respondent on the other hand stated that he appellant had abducted the child twice due to which she would have gone through traumatic experience as she was taken away from her mother to another country when she was only 2 years old. Thus, it was contended that the appellant was unfit as a model parent. The respondent urged to apply the maternal preference rule and grant the custody to the mother of the child.
FAMILY COURTS ACT, 1984
- Section 7- Subject to the other provisions of this Act, a Family Court shall
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
- Section 10- procedure generally
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.
GUARDIANS AND WARDS ACT
- Section 7- Power of the Court to make order as to guardianship.—
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—
(a) appointing a guardian of his person or property or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
CIVIL PROCEDURE CODE
- Section 151- Saving of inherent powers of Court -Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.
ISSUES: The sole issue before the court in the present case was whether the family court followed the procedure prescribed by the concerned act, much less a fair procedure adhering to the principle of natural justice was complied with or not?
ANALYSIS OF THE JUDGEMENT
- It is an established fact that more than husband and wife, dissolution of marriage affects the children. A child deserves the love and affection of both parents. However, a tussle between the parents raises questions of custody as to who would have the child.
- In the present judgement, the Supreme Court was dealing with a similar question. While not going by the facts of the case concerning the conduct of the parties, the court limited itself in dealing with the approach adopted by the Family Court.
- The court observed that the family court has exceeded its jurisdiction. The court expressly stated that the family courts does not have plenary powers to do away with the mandatory procedural requirements in particular , which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides. The court further opined that the family courts must adhere to the norms prescribed by the statute and foundational principle of fairness of procedure and natural justice.
- After looking into the provisions referred by the parties, the court observed that both the enactments provide for procedure in the form of disclosure, declaration and assertion and its refutation by the other party. All this is done to ensure fair opportunity to the concerned persons.
- While acknowledging the issue of transposition of respondent as petitioner the court held that the family court could not have entertained the transposition application filed by the respondent ex parte and that too without ensuring that it was duly served on the appellant consequent to notice issued thereon by the Court.
- Further on the issue of abandonment the court held that the same has to be expressed or in case it is implied the circumstances has to be so strong and convincing that such inference in inevitable. However, the same was not the case in the present case.
- Thus, the court held that if the appellant wants to pursue the guardianship petition, the application u/s 151 filed by respondent shall be dismissed. However, did not dismiss the application filed by the respondent to claim sole guardianship.
- Therefore, the appeal was partly allowed.
- Custody battles most of the times turns out to be an ugly fight between the parents by the hands of which only the child suffers. In one of its judgements the Supreme Court has stated “it is the children who pay the heaviest price as they are shattered when the court by its judicial process tells them to go with the parent whom he or she deems fit”.
- In the present case, the approach adopted by the family court was highly erring. It seemed as if the court has made up its mind against the appellant. In all of the instances where he was entitled to be served with formal notices, the appellant was deprived of the same. Yet, the order was passed against him.
- Thus, the Supreme Court in its judgement rightly dismissed the application filed by the respondent.
- Also, since the court did not look into the facts concerning the conduct of the parties, it rightly allowed the respondent to file application to declare herself the sole guardian of the child.
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