Case: AMAN LOHIA Vs. KIRAN LOHIA


Decision reasoning: 0[ds]26. After cogitating over the rival submissions, in our considered opinion, it may not be appropriate for us to delve into the factual matrix of the case, especially regarding the conduct of the parties as alleged by them against each other, for the nature of order that we propose to pass.27. 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.29. These provisions plainly reveal that the Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision. For doing this, the Family Court is expected to give notice to the respective parties and provide them sufficient time and opportunity to present their claim in the form of pleadings and evidence before determination of the dispute.33. It is not in dispute that the appellant had filed the petition by invoking provisions of Section 7 of the 1890 Act read with Section 7(g) of the 1984 Act. Admittedly, no written statement was ever filed by the respondent to oppose the said petition. On the other hand, the appellant took out two applications for amendment of the pleadings under Order VI Rule 17 of the CPC. No reply was filed by the respondent even to these applications, despite Court directing her to do so vide order dated 4.10.2018. There is nothing on record to indicate that the Family Court decided these two applications for amendment of pleadings taken out by the appellant. Although the main objection alongwith two applications for amendment filed by the appellant remained pending from February, 2018, the respondent never filed response to the main petition or the amendment applications and instead took out application under Section 151 of the CPC for being appointed the sole and absolute guardian and custodian of the minor child, on 13.9.2019. This application was posted for hearing on 13.9.2019, on which date the Court issued notice to the appellant and his counsel. As per that order, the matter was again notified on 16.9.2019 when the counsel appearing for the appellant – Mr. Rajat Bhalla requested the Court to discharge him from the case, which request was acceded to by the Court. As a matter of fact, before discharging the counsel, the Family Court should have ensured that notice was given to the appellant about the request made by his counsel including to make alternative arrangements, if he so desired. Admittedly, no such notice was issued by the Family Court. That is reinforced from the order dated 16.9.2019 reproduced in paragraph 7 above. It has been plainly noted that dasti notice sent to the appellant was still awaited.34. Assuming that the Family Court could have allowed the request of the counsel for the appellant to unilaterally take discharge without giving notice to the appellant. However, after accepting that request, it was obligatory to issue notice to the appellant to inform about the order so passed and also calling upon the appellant to make necessary arrangements on the next date. The Family Court instead set down the main matter on 19.9.2019 at 2.30 p.m. In terms of order dated 16.9.2019, the Family Court additionally cancelled the already scheduled returnable date of 30.10.2019, unilaterally. There is nothing on record to show that the respondent had made such a request.35. What is more striking, is that, before 19.9.2019, the respondent took out another application under Order I Rule 10 read with Order XXIII Rule 1A of the CPC for being transposed as petitioner in the guardianship petition and to transpose appellant as respondent therein, for the reasons stated in the application dated 18.9.2019. Admittedly, even copy of this application was not served on the appellant nor a formal notice came to be issued by the Family Court on this application, when it was taken up for hearing on 19.9.2019. The Family Court merely ordered to place the matter on 20.9.2019 at 1.00 p.m. The order dated 19.9.2019 (in paragraph 8 above), makes no reference to the fact as to whether the notice sent to the appellant vide order dated 16.9.2019 had been duly served nor about the filing of any affidavit of service effected on him.Once again, there is no mention even in this order about service of (i) the application under Section 151 of the CPC filed by the respondent, (ii) the application under Order I Rule 10 of the CPC read with Order XXIII Rule 1 read with Section 151 of the CPC filed by the respondent, (iii) order dated 16.9.2019 and (iv) order issuing notice on application under Order I Rule 10 on the appellant. Despite this, the Court proceeded on the assumption that the appellant had abandoned the proceedings. There can be no legal presumption about the factum of abandonment of proceedings. The abandonment has to be express or even if it is to be implied, the circumstances must be so strong and convincing that drawing such inference is inevitable. Rather, no other view is possible. For that, the Court ought to have adverted to the material/evidence indicating that the appellant/petitioner was duly served with the applications filed by the respondent and that he was fully aware about the discharge of the counsel representing him in the proceedings including about service of Court notices. Even if the Court was to infer abandonment, it could at best have dismissed the petition for default in exercise of power under Order IX Rule 8 of the CPC.36. Further, the 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. Admittedly, there is no official Court record to indicate that such service was effected on the appellant including that the Court had issued notice on the transposition application. Arguendo, such transposition was permissible but after allowing the transposition application ex parte, unless the cause title was amended and appropriate changes/amendments made in the petition including parties producing evidence in support of their claim, the matter could not have proceeded for final determination. After such amendment, in any case, opportunity was required to be given to the appellant by issuing Court notice so as to enable him to respond to the amended petition including to contest the same. We may not be understood to have accepted the proposition that transposition in guardianship proceeding is permissible, much less permissible as a matter of course at the instance of the other parent of the minor child. We leave that question open.37. In Sangram Singh (supra), this Court in paragraph 16 observed that procedure is something designed to facilitate justice and further its ends – not a penal enactment for punishment and penalties; not a thing designed to trip people up. Further, too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. These observations are contextual and have no application to the case where there is no semblance of procedure followed by the Family Court and the entire matter is disposed of in a short span of less than eight days after filing of an application (on 13.9.2019) by the respondent under Section 151 of the CPC for declaring her to be the sole, exclusive and absolute guardian and custodian of the minor child including the transposition application under Order I Rule 10 (filed on 18.9.2019) and culmination of the proceedings in favour of the respondent on 21.9.2019 vide impugned judgment and orders, that too without notice to the appellant nor waiting for service of notice already issued on the former application. This is substantial non-compliance of the prescribed mandatory procedure and infraction of principles of natural justice, not a technical irregularity to be overlooked.38. Reliance was also placed on the dictum in Shamlal Murari (supra). In paragraph 8, while construing the concerned rule, this Court opined that every minor detail in that rule cannot carry a compulsory or imperative import. On that finding, the Court construed the said rule as directory and not having the effect of vitiating proceedings as in the present case, both on account of non-compliance of statutory procedural safeguards and in violation of principles of natural justice.39. Reliance was then placed on Rosy Jacob (supra). In that case, the Court dealt with proceedings under Section 25 of the 1890 Act and in the fact situation of that case, noted that the guardian Court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. This issue may have to be debated in the remanded proceedings. We do not wish to dilate on this aspect.40. Suffice it to observe that the appellant is justified in contending that the impugned judgment and orders came to be passed by the Family Court in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so in light of the observations made by the High Court in habeas corpus and contempt matters against the appellant. The impugned judgment does make reference to those orders. We may hasten to add that the conduct of the appellant frowned upon by the High Court in the habeas corpus petition or contempt petition, cannot be made the sole basis to determine the factum of fitness or otherwise of the appellant for being a guardian of the minor child. That fact has to be decided on its own merits taking all aspects into account including possibility of joint shared parenting arrangement and more particularly, child-centric approach with paramount welfare and interest of the minor child. It is for that reason, even the High Court whilst disposing the habeas corpus and contempt proceedings, had added a word of caution at the end of its judgment that guardianship petition or other proceedings between the parties must proceed on their own merits in accordance with law, which observation has been completely glossed over by the Family Court in the present case.41. We have chosen not to dilate on other aspects or reported decisions brought to our notice by both sides including about the conduct of parties as alleged by each of them against the other. Nor it is necessary for us to examine the necessity of exploring the possibility of joint shared parenting plan, to assuage the psychological barriers likely to be encountered by the minor child of tender age and more particularly, for her holistic development, welfare and paramount interest. Those are matters which the Family Court ought to examine after giving due opportunity to both sides on their own merits and in accordance with law.