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Family courts have no plenary powers to do away with the mandatory procedural requirements: SC

Indubitably, the Family Court is obliged to inquire into the matter as per the procedure prescribed by law. It does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides. The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice (Para 27).




AMAN LOHIA V/S KIRAN LOHIA

TRANSFERRED CASE (CIVIL) NO. 25 OF 2021

17 March 2021


The Hon’ble Supreme Court consisting of Justice A.M Khanwilkar, Justice B.R Gavai, and Justice Krishna Murari held in this case that the two applications for amendment of the petition filed by the appellant under Order VI Rule 17 read with Section 151 of the CPC shall stand restored and revived and be heard in the first place. Similarly, the other applications filed by the appellant to bring on record subsequent events/documents be also decided first. As the appellant has already withdrawn all proceedings between the parties pending in UAE Court, as recorded in connected matters pending in this Court, it is indicative of the fact that he intends to pursue the guardianship petition to its logical end, and for that reason, the transposition application under Order I Rule 10 read with Order XXIII Rule 1 read with Section 151 of the CPC, filed by the respondent, needs to be dismissed. A detailed note has been made after hearing the arguments of both parties.


In this case, the appellant had filed MAT Appeal (F.C.) No. 85/2020 in the High Court of Delhi at New Delhi, which stood withdrawn and transferred to the SC in light of other proceedings pending between the parties in this Court involving overlapping issues, as per the consent order passed on 29.7.2020. The appeal, filed by the appellant is against the judgment and orders dated 21.9.2019 of the Principal Judge, Family Court, Patiala House, New Delhi, whereby the application filed by the respondent for transposing her as petitioner in the petition filed by the appellant declaring him as guardian of the person of baby Raina and appointing him as her guardian, came to be allowed on the finding that the appellant had abandoned the petition. On the same day, by separate order, the respondent was appointed as sole, exclusive, and absolute guardian and custodian of the minor child.


At the outset, it was noted that for the nature of the order that we propose to pass in the present transferred case, it may not be necessary for us to advert to all the factual matters pointed out by both sides. Suffice it to be noted that the guardianship petition (G.P. No. 09/2018) was filed by the appellant under Section 7 of the Guardians and Wards Act, 1890 read with Section 7(g) of the Family Courts Act, 1984 on 9.2.2018 on the assertion that the minor child was in his custody at the relevant time. The appellant had prayed for the following reliefs: ­

A. To declare petitioner as guardian of the person of baby Raina.

B. Appointing the petitioner as guardian of the person of baby Raina.

C. Any other relief this Hon’ble Court may deem fit and proper.(Para 6)


Notice was issued on the said petition on 19.2.2018. The respondent did not file a written statement until August 2018, 5 for short, “the 1890 Act” 6 for short, “the 1984 Act” 4 when the appellant moved a formal application for amendment of the petition under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 and Section 10 of the 1984 Act to bring on record certain subsequent events including regarding habeas corpus petition(s). This application was filed by the appellant on 21.8.2018. There is nothing on record to indicate that the Family Court dealt with and disposed of this application before the impugned order came to be passed on 21.9.2019. The appellant had filed another application under Order VI Rule 17 read with Section 151 of the CPC and Section 10 of the 1984 Act for amendment of the petition, on 4.10.2018. The Family Court directed the respondent to file a reply to this application. However, the respondent did not file a reply even to this application. In view of certain further developments, the appellant moved another application before the Family Court on 20.2.2019 to place on record a copy of the order dated 13.2.2019 passed by the High Court in Civil Contempt Petition (CCP) No. 116/2019 against the respondent.


A lot of case laws were mentioned from the appellants' side, The appellant was relying on dictum in MamataMayee Sahoo vs. Abinash Sahoo, wherein the Orissa High Court took note of the procedural compliances to be made by the Family Court. According to the appellant, the decision relied upon by the Family Court of Delhi High Court in Someshwar Dayal vs. Anupama Dayal, was the opposite. It was distinguishable, as there was nothing on record to indicate that the petitioner had expressly abandoned the proceedings or after due opportunity, had committed default in any manner. The present case indeed was one of the counsels appearing for the appellant having withdrawn from the case. That does not mean that the appellant had abandoned the proceedings. It was urged that the application filed by the respondent under Section 151 of the CPC, in law, could not be regarded as a substantive petition required to be filed under Section 25 of the 1890 Act for a declaration/appointment as guardian. In any case, the Family Court was under obligation to insist for the written statement to be filed by the respondent including a reply to the applications filed by the appellant under Order VI Rule 17 of the CPC, and then to frame issues on which the matter could proceed. Not only that, the Family Court was obliged to record evidence before adjudicating the matters in issue and pronounce final declaration and judgment under Section 17 of the 1984 Act, which obliges the Family Court to record a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.


The appellant asserted that he is a loving, caring, concerned, and affectionate father and the minor cannot be denied of all that merely because of events that unfolded during the pendency of habeas corpus petition(s) or contempt petition(s) before the High Court. The central concern ofthe Court should be the paramount welfare and interest of the minor child. The approach of the Court in that regard ought to be child-centric. The issue cannot be answered on the basis of claims and counterclaims of the warring parents, as to deny the child of parentage of her father because of other acts of commission and omission of the father. To do so would, in effect, be punishing the minor child and depriving her of the love and affection of her father. That must be eschewed. The Family Court in such proceedings is obliged to record a clear finding of the unfitness or otherwise of the father to be a guardian. That must be in the context of child care and not other matters or worldly activities of the father. As a matter of fact, contends the learned counsel, the most appropriate course would be to follow the joint shared parenting plan, in which the child would interact with both the parents in equal measure.


The court noted about the respondent that,

It is urged that the respondent for reasons best known to her, precipitated the matter despite the peremptory directions given by this Court in connected proceedings between the parties, by taking U.S. nationality of the minor child and also obtained a Consular Report of Birth Abroad Status (CRBA) in December 2019 from the U.S. Embassy. The respondent herself is a U.S. citizen. Therefore, the appellant apprehends that the respondent has the intention to remove the child away from the jurisdiction of the Courts in India and permanently deny access to him and his family members. Since the respondent has secured CRBA status on the basis of the declaration given by the Family Court vide impugned judgment and orders, upon setting aside of that order, all consequential claims/benefits accrued or derived by the respondent on that basis, must also become non­-est in the eyes of law.(Para 15)


According to the respondent, the appeal filed by the appellant questioning the impugned judgment and orders passed by the Family Court does not merit any interference and the same be dismissed. After hearing out the arguments of both the parties the court stated that,

We are more than convinced that the Family Court, in the present case, exceeded its jurisdiction by hastening the entire proceedings. Indubitably, the Family Court is obliged to inquire into the matter as per the procedure prescribed by law. It does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides. The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice (Para.27).


The Family Courts came to be established under the 1984 Act. Section 7 specifies the jurisdiction of the Family Court and 31 about the nature of claims to be adjudicated by it in the form of suits and proceedings delineated in the explanation in subsection (1). Section 10 predicates about the procedure generally. The provisions of the CPC are made applicable for the resolution of disputes falling under the 1984 Act. The Family Court is deemed to be a Civil Court having all powers of such Court. Consequent to bestowing such power on the Family Court, comes with it a primary duty to make efforts for settlement, as prescribed under Section 9. If that does not happen, during the resolution of disputes between the parties, the Family Court then has to bear in mind the principles enunciated in the Indian Evidence Act, 1872, which had been made applicable in terms of Section 14 of the 1984 Act (Para 28).


The court referred to the provisions of the 1890 Act, as invoked by the appellant. The question, therefore, that needs to be answered in light of the grievance made by the appellant is:

whether the Family Court in the present case had followed procedure prescribed by the concerned Act, much less a fair procedure adhering to principles of natural justice?(Para 32).


With regard to the above, the court held that,

the two applications for amendment of a petition filed by the appellant under Order VI Rule 17 read with Section 151 of the CPC shall stand restored and revived and be heard in the first place. Similarly, the other applications filed by the appellant to bring on record subsequent events/documents be also decided first. As the appellant has already withdrawn all proceedings between the parties pending in UAE Court, as recorded in connected matters pending in this Court, it is indicative of the fact that he intends to pursue the guardianship petition to its logical end, and for that reason, the transposition application under Order I Rule 10 read with Order XXIII Rule 1 read with Section 151 of the CPC, filed by the respondent, needs to be dismissed. We, however, revive the application filed by the respondent under Section 151 of CPC for declaring her to be the sole and absolute guardian in place of the appellant. That shall proceed before the Family Court on its own merits in accordance with the law. All contentions available to both sides including about its maintainability are left open to be decided by the Family Court in accordance with law. (Para 43)


Concluding the court held that;

It was brought to our notice that the respondent has taken U.S. citizenship for the minor child and also a U.S. passport in her name. In the context of that grievance, the respondent through counsel had assured that she will not precipitate the said claim and is willing to surrender the same in this Court to avoid any misapprehension entertained by the appellant. The respondent may do so within two weeks from today. At the same time, we direct the respondent not to travel with the minor child outside Delhi or abroad without prior permission of this Court to be taken in the connected matters. The appeal is partly allowed in the aforementioned terms (referred to in paragraphs 42 to 44).


The transferred case was accordingly disposed of, with no order as to costs. All pending applications, in this case, were also disposed of.


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Aaron Varughese

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