Civil Revision Nos.2843 & 2849 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2843 of 2003 (O&M) Date of decision:27.04.2009 Sushila .............Petitioner Vs. Rajinder ............Respondent 2. Civil Revision No.2849 of 2003(O&M) Saroj ............Petitioner Vs. Mansa Ram .........Respondent Present: Mr. Vinod Gupta, Advocate for the petitioner. Mr. Mani Ram Verma, Advocate for the respondent. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K.KANNAN, J. (ORAL) 1. The revision petitions have directed against two consecutive orders passed by the District Judge, Bhiwani on 02.04.2003 and 09.05.2003 separately in Misc. Case No.39 of 1998 titled “Rajinder Vs. Sushila” and Misc. Case No.40 of 1998 titled “Mansa Ram Vs. Saroj”. Orders that have a bearing to the custody of the children and their production in Court are challenged by the mothers, one Sushila in respect of child Ajay (male) through the medium of C.R. No.2843 Civil Revision Nos.2843 & 2849 of 2003 (O&M) -2- of 2003 and C.R. No.2849 of 2003 is being contested by Saroj mother of the female child namely Suman. Both the revision petitions contain similar facts and are being disposed of by a common judgment. 2. It appears that marriage of the petitioners with the respondents have been dissolved by decrees of divorce and the respective mothers are having custody of the children. The contention of the mothers are that the fathers had filed petitions before the District Judge at Bhiwani under the Guardian and Wards Act, 1890 for securing the custody of the children and obtained the ex parte orders on 22.04.1998. These orders, according to the petitioners, were rendered without taking notice to them by filing the petitions in Court, which had not the jurisdiction to entertain the same. The further contention of the petitioners was that they were living with their minor children at Hissar and it was the District Court, Hissar, which had the jurisdiction to entertain the matter and the order passed by the Court at Bhiwani was without jurisdiction. They had also filed the applications for setting aside the ex partes order and that applications were pending. 3. During the pendency of the applications, fathers of the children had moved an application for enforcement of the orders passed by the District Judge, Bhiwani for directions to produce the children namely Suman and Ajay respectively and handing over the children to their respective fathers. An objection had been taken by the mothers against the enforceability of the order and contended that the orders had been passed without jurisdiction. It was their contention that the law contemplated merely imposition of fine and Civil Revision Nos.2843 & 2849 of 2003 (O&M) -3- detention in civil prison, as contemplated under Section 45 (a) of the Guardian and Wards Act and if they failed to produce the minor or comply with the directions of the Court under Section 12, the Court could direct the persons in whose custody the minor children were, to produce him or her at such place and time and before such person it appoints and also make an order of temporary custody and protection of the minors. The contention was that no such order under Section 12 had been made and therefore, orders passed issuing warrants against the respective mothers to produce the children were bad in law and deserve to be withdrawn. 4. While disposing of the objection taken by the mothers, the Court found that the orders that had been passed on 22.04.1998 had not been stayed or challenged and that they had obtained finality. The Judge reasoned that the non-enforceability of the orders was not available in execution when the earlier orders dated 22.04.1998 had not been set aside or withdrawn by any process known to law. Stating so, the Court found that the objections were frivolous and directed the production of the minors in Court. By subsequent orders dated 09.05.2003 passed in the Misc. Cases as stated above, the Court found that applications had been filed by the fathers for giving police help to produce the minor children namely Ajay and Suman and directed the concerned SHO to give adequate police help to the fathers to secure custody of the minor children. 5. At the outset, the grounds of revision urged on behalf of the petitioners contain a reference to Section 9 of the Guardian and Wards Act, 1890, which invests the Court jurisdiction to pass an order where Civil Revision Nos.2843 & 2849 of 2003 (O&M) -4- the minor originally resides. The Court initially passed an order on the basis of available material and evidence adduced and if according to the petitioners, District Judge, Bhiwani did not have the jurisdiction and it was only the District Judge at Hissar, which had jurisdiction, the decision itself could not be rendered void. The assumption of jurisdiction is essentially made on the question of fact proved by evidence and the Court at Bhiwani had passed an order directing the production of the children. That order could not be said to be void by the only fact that the mothers had contended that the children were in their custody within the jurisdiction of yet another Court. So long as the orders directing the production of the children had not been set aside, the Court was perfectly justified in directing the production of the children. 6. Again the contention on behalf of the mothers as contained in the grounds of revision that the Court could not have directed the production of the children before imposing a penalty of civil imprisonment under Section 45 is equally without substance. Section 45 of the Act merely spells out a remedy to which a decree-holder is entitled to obtain and the said provision is mutually exclusive to a direction for production of the child that the Court could make under Section 12. 8. In spite of the observations relating to the decision for passing of the orders, learned counsel for the respondenst-fathers states that the child Suman was 7 ½ years old at the time when the petition was filed in the year 1998 and since attained majority and the status of the minor itself has changed. Although the legality of the Civil Revision Nos.2843 & 2849 of 2003 (O&M) -5- order itself cannot be questioned for, I have found a legal justification for the nature of the order, I still dismiss C.R. No.2849 of 2003 on the ground that the prayer for custody of the child namely Suman on the basis that she was a minor no longer survives for consideration. 9. I have not the assistance of either side to say what is the age of the child namely Ajay presently and whether the matter requires consideration before Court. The Civil Revision No.2843 of 2003 is, therefore, disposed of affirming the reasoning of the Court below but the executability would still depend whether the child is a minor or the child has also become a major in the course of the proceedings. The ultimate executability of the order will be decided on the factual consideration of the minority or otherwise of the child namely Ajay. The civil revision is disposed of in the above terms. (K. KANNAN) JUDGE April 27, 2009 Pankaj*