AMAN LOHIA versus KIRAN LOHIA
[2021] 2 S.C.R. 1131, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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AMAN LOHIA
v.
KIRAN LOHIA
(Transferred Case (Civil) No. 25 of 2021)
MARCH 17, 2021
[A.M. KHANWILKAR, B.R. GAVAI AND
KRISHNA MURARI, JJ.]
Guardians and Wards Act, 1890: s. 7 - Family Courts Act,
1984 - s. 7(g) – Power of the Court to make order as to guardianship
in respect of a minor – Guardianship petition by the father-appellant
seeking declaration as guardian – However, the mother-respondent
neither filed the written statement nor filed reply to two applications
u/Ord. VI r. 17 for amendment of pleadings, which are still pending
– Instead the mother filed application u/s. 151 CPC for declaring
and appointing her to be sole and absolute guardian and custodian
of the minor child, as also application u/Ord. VII r. 11 for dismissal
of guardianship petition, and one u/Ord. I r 10 and Ord. XXIII r. 1A
r/w s. 151 CPC to transpose her as petitioner in the guardianship
petition – Appellant not given notice on these applications and also
in the matter of discharge of his advocate - Family Court declared
the mother as the sole, exclusive and absolute guardian and
custodian of the minor child; and proceeding on the assumption
that the father had abandoned the proceedings, transposed the
mother as the petitioner in the guardianship petition – Propriety of
– Held: Family Court exceeded its jurisdiction by hastening the
entire proceedings – It did not follow the fair procedure prescribed
by the Act – There was non-compliance of the prescribed mandatory
procedure and
infraction of principles of natural justice – Court
could not have entertained the transposition application filed by
the respondent ex parte without ensuring that it was duly served on
the appellant consequent to notice issued – Guardianship petition
has to be decided on its own merits taking into account possibility
of joint shared parenting arrangement and child-centric approach
with paramount welfare and interest of the minor child – Thus, the
ex parte orders passed on transposition application, as well as, on
the application for declaration that the respondent is the sole
guardian and custodian of the minor child, is set aside – Issuance
[2021] 2 S.C.R. 1131
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[2021] 2 S.C.R.
of direction for revival of the guardianship petition and its remand
to the family court for fresh adjudication.
Family court – Adherence to practice and procedure
prescribed by the Statute – Held: 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 – Nature of inquiry before the Family Court is
adjudicatory – It is obliged to resolve the rival claims of the parties
by adhering to the norms prescribed by the statue in that regard
and also the foundational principle of fairness of procedure and
natural justice – Natural justice.
Family court – Working of – Explained.
Practice and procedure: Abandonment of proceedings –
Inference of – Held: There can be no legal presumption about the
factum of abandonment of proceedings – 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.
Disposing of the transferred case, the Court
HELD: 1.1 The Family Court 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][1155-F-G]
1.2 The provisions of the CPC are made applicable for
resolution of disputes falling under the 1984 Act. The Family
Court is deemed to be a Civil Court having all powers of such
Court. Section 9, 14, 15 and 16 plainly reveal that the Family
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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. [Paras 28, 29][1156-A-B, G]
1.3 The appellant admittedly filed petition before the Family
Court under Section 7 of the 1890 Act read with Section 7(g) of
the 1984 Act. Section 7 of the 1890 Act bestows power in the
Court to make order as to guardianship in respect of a minor.
Such prayer can be made by anyone interested in the welfare of
the minor and “not limited to the father and mother of the minor”.
In this inquiry, the Court, if so satisfied that it is for the welfare of
the minor, is free to appoint the applicant as a guardian of person
or property of the minor or both or merely declaring a person to
be such a guardian. Section 8 of the Act makes it amply clear as
to who is entitled to apply for the order. Such application is
required to be filed before the District Court having jurisdiction
in the place where the minor ordinarily resides under Section 9
of the 1890 Act.
As regards procedure for such an application, it
is delineated by providing for the form of application in Section
10 of the Act, which must contain necessary information referred
to therein. Section 11 prescribes for the procedure in the event
the Court is satisfied that there is ground for proceeding on the
application. That would require adducing of evidence before
making an order in terms of Section 13 of the 1890 Act. The
Court is required to consider certain matters as specified in
Section 17 of the 1890 Act and while making order, must also
bear in mind the exception provided in Section 19 as to who
should not be appointed as guardian. Suffice it to observe that
both the enactments (the 1984 Act and the 1890 Act), provide
for procedure in the form of disclosures, declarations and
assertions and its refutations by the other party opposing the
AMAN LOHIA v. KIRAN LOHIA
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claim, whereafter the matter proceeds for recording of evidence
followed by the declaration or order passed by the Court. Intrinsic
in all these steps is to guarantee fair opportunity to all concerned.
[Paras 30, 31][1156-H; 1157-A-B, C-F]
1.4 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. 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 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. It has been plainly noted that dasti notice
sent to the appellant was still awaited. [Para 33][1157-G-H; 1158-
A-E]
1.5 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
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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.
[Para 34][1158-E-G]
1.6 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, 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 the order dated 20.09.2019 about service
of the application under Section 151 of the CPC filed by the
respondent, 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,
order dated 16.9.2019 and 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
AMAN LOHIA v. KIRAN LOHIA
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dismissed the petition for default in exercise of power under
Order IX Rule 8 of the CPC. [Para 35][1158-G-H; 1159-A-B,
G-H]
1.7 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. 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 is not accepted. [Para 36][1160-C-F]
1.8 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 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
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own merits in accordance with law, which observation has been
completely glossed over by the Family Court in the instant case.
[Para 40][1161-E-H; 1162-A]
1.9 A priori, there is no hesitation in setting aside the ex
parte impugned judgment and orders dated 21.9.2019 passed by
the Family Court on transposition application, as well as, on the
application for declaration that the respondent is the sole,
exclusive and absolute guardian and custodian of the minor child.
For the same reasons, the purported follow up order passed on
16.10.2019 by the Family Court, directing handing over custody
of the minor child within the time specified therein, is also set
aside. As these orders are set aside, any action taken on the
basis of the said orders is to be regarded as non-est in law and is
so declared hereunder. That does not mean that the custody of
the minor child needs to be restored to the father (appellant)
forthwith. That issue will have to be decided finally by the Family
Court in the proceedings remanded in terms of this order.
[Para 42][1162-D-F]
1.10 By this order, remand and revival of the Guardianship
petition and also all applications filed in the main guardianship
petition by the appellant is directed. The two applications for
amendment of petition filed by the appellant under Order VI Rule
17 read with Section 151 CPC would be restored and revived
and be heard in the first place. 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. However, 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 is revived. That shall
proceed before the Family Court on its own merits in accordance
with law. All contentions available to both sides including about
its maintainability are left open to be decided by the Family Court.
[Para 43][1162-F-H; 1163-A-B]
AMAN LOHIA v. KIRAN LOHIA
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1.11 The respondent has taken U.S. citizenship for the minor
child and also U.S. passport in her name. In the context of that
grievance, the respondent through counsel had assured that she
would not precipitate the said claim and is willing to surrender
the same in this Court to avoid any misapprehension entertained
by the appellant. [Para 44][1163-C-D]
Mamata Mayee Sahoo vs. Abinash Sahoo 2015 SCC
Online Ori 167; Someshwar Dayal vs. Anupama Dayal
2016 SCC Online Del 458; Ruchi Majoo vs. Sanjeev
Majoo (2011) 6 SCC 479 : [2011] 7 SCR 674; Savitha
Seetharam vs. Rajiv Vijayasarathy Rathnam 2020 (4)
AKR 372; JK vs. NS 2019 SCC Online Del 9085;
Tushar Vishnu Ubale vs. Archna Tushar Ubale AIR 2016
Bom 88; Lahari Sakhamuri vs. Sobhan Kodali (2019)
7 SCC 311:[2019] 5 SCR 240; Ashish Ranjan vs.
Anupma Tandon & Anr. (2010) 14 SCC 274:[2010] 14
SCR 961; Tejaswini Gaud & Ors. vs. Shekhar Jagdish
Prasad Tewari & Ors. (2019) 7 SCC 42:[2019] 7 SCR
335; Vivek Singh vs. Romani Singh (2017) 3 SCC
231:[2017] 2 SCR 312; Nithya Anand Raghavan vs.
State (NCT of Delhi) & Anr. (2017) 8 SCC 454:[2017]
7 SCR 281; Prateek Gupta vs. Shilpi Gupta & Ors.
(2018) 2 SCC 309:[2017] 13 SCR 230; Kanika Goel
vs. State of Delhi & Anr. (2018) 9 SCC 578 : [2018] 11
SCR 546; ABC vs. State (NCT of Delhi) (2015) 10 SCC
1 : [2015] 8 SCR 422; Roxann Sharma vs. Arun Sharma
(2015) 8 SCC 318 : [2015] 2 SCR 572; Sangram Singh
vs. Electional Tribunal, Kotah & Anr.
AIR 1955 SC
425 : [1955] SCR 1; State of Punjab & Anr. vs. Shamlal
Murari & Anr. (1976) 1 SCC 719 : [1976] 2 SCR 82 ;
Rosy Jacob vs. Jacob A. Chakramakkal (1973) 1 SCC
840 : [1973] 3 SCR 918; Gaurav Nagpal vs. Sumedha
Nagpal (2009) 1 SCC 42 : [2008] 16 SCR 396 –
referred to.
Child Access & Custody Guidelines alongwith Parenting
Plan; Child Access & Custody Guidelines alongwith
Parenting Plan by Child Rights Foundation NGO,
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Mumbai, 2014; Law Commission of India Report No.
257 – Reforms in Guardianship and Custody Laws in
India (May, 2015) – referred to.
Case Law Reference
[2011] 7 SCR 674
referred to
Para 12
2020 (4) AKR 372
referred to
Para 14
AIR 2016 Bom 88
referred to
Para 14
[2019] 5 SCR 240
referred to
Para 14
[2010] 14 SCR 961
referred to
Para 14
[2019] 7 SCR 335
referred to
Para 14
[2017] 2 SCR 312
referred to
Para 14
[2017] 7 SCR 281
referred to
Para 16
[2017] 13 SCR 230
referred to
Para 16
[2018] 11 SCR 546
referred to
Para 16
[2015] 8 SCR422
referred to
Para 16
[2015] 2 SCR 572
referred to
Para 16
[1955] SCR 1
referred to
Para 17
[1976] 2 SCR 82
referred to
Para 17
[1973] 3 SCR 918
referred to
Para 17
[2008] 16 SCR 396
referred to
Para 22
CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)
No. 25 of 2021
From the Judgment and Order dated 29.07.2020 of the High Court
of Delhi at New Delhi in MAT Appeal (F.C.) No. 85 of 2020.
K.M. Natraj, ASG , Shyam Divan, Sr. Adv., Anil Malhotra, Mukul
Kumar, Rupesh Kumar, Rajeev Sharma, Taubon Irani, Ms. Neelam
Sharma, Ms. Pankhuri Shrivastava, Alekshendra Sharma, Pravesh
Bahuguna, Viresh B. Saharya, Akshat Agarwal, Ms. Malavika Rajkotia,
Ms. Rytim Vohra, Sudipto Sircar, Ms. Ria Singh Sawhney, Lakshmi
AMAN LOHIA v. KIRAN LOHIA
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[2021] 2 S.C.R.
Raman Singh, Ashok Panigrahi, Ms. Shraddha Deshmukh, Nabab Singh,
B.V. Balaram Das, Arvind Kumar Sharma, Ms. Indira Bhakar, Sughosh
Subramanyam, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant Dogra,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. The appellant1 had filed MAT Appeal (F.C.) No. 85/2020 in the
High Court of Delhi at New Delhi2, which stood withdrawn and
transferred to this Court 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. That appeal, filed by the appellant is against
the judgment and orders dated 21.9.2019 of the Principal Judge, Family
Court, Patiala House, New Delhi3, whereby the application filed by the
respondent4 for transposing her as petitioner in the petition filed by the
appellant declaring him as guardian of 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 a separate order, the
respondent was appointed as sole, exclusive and absolute guardian and
custodian of minor child.
2. Both the parties have resorted to multiple proceedings against
each other, essentially emanating from the discordant marital relationship
between them. Besides the guardianship petition filed by the appellant,
the respondent had filed habeas corpus petition on
two occasions and
because of non-compliance of the directions issued by the Court regarding
custody and visitation rights, both had to file contempt petition against
each other. The appellant, as well as, his parents have also filed special
leave petition(s) against the judgment of the High Court in habeas corpus
petition(s) and contempt petition(s).
3. As aforesaid, during the hearing of the said proceedings, parties
consented to the transfer of first appeal [MAT Appeal (F.C.) No. 85/
2020] pending before the High Court against the orders of the Family
Court, dated 21.9.2019, which essentially involves issue regarding
guardianship. Besides, a divorce petition is also pending between the
parties.
1 husband of the respondent
2 for short, “the High Court”
3 for short, “the Family Court”
4 wife of the appellant
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4. Be that as it may, when the cases between the parties in this
Court were listed for analogous hearing, it was deemed appropriate to
first deal with the question of guardianship, to which suggestion, the
parties favourably responded and have addressed the Court on all aspects
of that matter. Intriguingly, despite this Court vide order dated 29.7.2020
had withdrawn the stated first appeal pending before the High Court
and transferred it to this Court, the High Court on 6.8.2020 in the very
appeal, even after taking note of the order dated 29.7.2020 passed by
this Court, proceeded to dispose of the appeal alongwith pending
applications therein. That, obviously, could not have been done by the
High Court. For, it had ceased to have jurisdiction to deal with the appeal
any further after the order of this Court dated 29.7.2020. Nevertheless,
both parties advisedly argued the transferred case (appeal) on merits
without reference to the order of the High Court, dated 6.8.2020.
5. As aforesaid, there are multiple proceedings pending between
the parties. But, in this judgment, we may confine to the basic facts for
answering the matter in issue before us regarding guardianship.
6. At the outset, we may note that for the nature of 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 note that the guardianship petition (G.P. No. 09/2018) was
filed
by the appellant under Section 7 of the Guardians and Wards Act,
18905read with Section 7(g) of the Family Courts Act, 19846 on 9.2.2018
on the assertion that the minor child was in his custody at the relevant
time. The appellant had prayed for following reliefs: -
“A.
To declare petitioner as guardian of person of baby Raina.
B.
Appointing the petitioner as guardian of person of baby
Raina.
C.
Any other relief this Hon’ble Court may deem fit and
proper.”
Notice was issued on the said petition on 19.2.2018. The
respondent did not file written statement until August, 2018, 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,
5 for short, “the 1890 Act”
6 for short, “the 1984 Act”
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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19087 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
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 reply to
this application. However, the respondent did not file 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 copy of order dated 13.2.2019 passed by the High Court in Civil
Contempt Petition (CCP) No. 116/2019 against the respondent and for
issuing further directions that because of the contemptuous conduct of
the respondent, she should not be heard on any application until she
purges contempt. The Family Court, besides taking note of that
application, also recorded in its order dated 20.2.2019 that the application
filed by the appellant under Order VI Rule 17 was still pending and
notified the same for hearing on 8.3.2019. When the matter was listed
before the Family Court on 8.3.2019, the respondent without any prior
intimation,
started arguing application under Section 26 of the Hindu
Marriage Act, 19558 filed by her, despite the fact that the said application
was not listed for argument on that date. What was listed on that day
were the four applications, namely, two applications under Order VI
Rule 17 of the CPC filed by the appellant, an application to take on
record copy of High Court order dated 13.2.2019 in CCP No. 116/2019
and the fourth one - filed by the respondent under Order VII Rule 11 for
dismissal of the guardianship petition (G.P. No. 09/2018). However, all
the four applications stood deferred on that day.
7. The respondent then filed an application under Section 151 of
the CPC for declaring and appointing her to be the sole and absolute
guardian and custodian of the minor child. This application was filed by
the respondent on 13.9.2019. No notice was given to the appellant of
this application nor advance copy thereof was supplied to him personally
or his counsel. It had been averred in that application, that from the
proceedings before the High Court appended to the application it was
amply clear that the appellant had proved himself to be unworthy,
7 for short, the “CPC”
8 for short, “the HMA”
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incapable and incompetent to act in the welfare of child and discharge
any parenting privilege whatsoever. In the wake of serious allegations
against the appellant, this application was ordered to be posted for hearing
before the Family Court on 16.9.2019 at 2.00 p.m., as noted in the order
dated 13.9.2019, which reads thus: -
“GP No. 09/2018
Aman Lohia vs. Kiran Lohia
13.09.2019
Present: Ms. Rytim Vohra, Ld. Counsel for the respondent/
applicant.
File taken up today on application under Section 151 CPC
seeking appropriate directions filed on behalf of the respondent/
applicant.
Let notice of the application be issued to the
petitioner/non-applicant and his counsel on filing of PF as
well as through E-mail as per law. Process be given dasti.
Be listed on 16.09.2019 at 2.00 pm.
Ld. Counsel for the petitioner has filed on record photocopy
of the order of the Hon’ble High Court of Delhi dated 12.09.2019
vide which the application for transfer of the case from this court
to some other court has been dismissed. Since now there is no
bar or restraint for this court to proceed with the case notice has
been issued to the non-applicant/petitioner.”
(emphasis supplied)
In terms of the said order, the matter was notified on 16.9.2019
when following order came to be passed: -
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
16.9.2019
Present: Sh. Rajat Bhalla, Ld. Counsel for the petitioner.
Ld. Proxy Counsel for the respondent.
File taken up today as Sh. Rajat
Bhalla, Ld. Counsel for the
petitioner has been served with notice of the applications moved
by ld. Counsel for the respondent for early hearing and issuance
of directions.
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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Sh. Rajat Bhalla, Advocate who was appearing on behalf
of the petitioner in the present petition and in HMA Bearing No.
625/18 (new No. 663/18) states that since he has not received
any instructions from his client, therefore, he seeks discharge from
this case. He has also pointed out that he has made similar request
before the Hon’ble High Court of Delhi in same cases pending
between the same parties and he was discharged in the same
vide order dated 12.9.2019. He also states that he had written e-
mail to his client and had tried other modes of service also to
inform him that he should make alternative arrangements for a
counsel as he is seeking discharge in this case. He states that he
had sent e-mails to the counsel for the respondent that he was no
more representing the petitioner Sh. Aman Lohia in any of the
matters handled by him.
Heard.
After hearing counsel for the petitioner and having
gone through the e-mails that he has sent to the petitioner
and the copies of the orders of the Hon’ble High Court of
Delhi, he is discharged from this case.
No one is present thus today on behalf of the petitioner.
Notice was sent to him dasti and report on the same is
awaited.
Be listed on 19.9.2019 at 2.30 pm.
Earlier date given i.e. 30.10.2019 stands cancelled.”
(emphasis supplied)
In the meantime, the respondent filed another application under
Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the
CPC to
transpose her as the petitioner in the guardianship petition (G.P.
No. 09/2018). This application was filed on 18.9.2019. The reliefs claimed
therein read thus: -
“PRAYER
In the above stated facts and circumstances, it is respectfully
prayed that this Hon’ble Court may be pleased to:
a. Transpose the Respondent as the Petitioner and the Petitioner
as a Respondent in the present case.
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b. Pass such other orders or directions as it may deem fit and
proper in the interest of justice.”
8. On 19.9.2019, the matter was listed before the Family Court,
when the Court passed the following order: -
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
19.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms. Malvika Rajkotia.
Ld. Counsel for the respondent has filed an application under
Order 1 Rule 10 and Order 23 Rule 1 a r/w Section 151 CPC to
transpose the respondent.
Be listed for consideration on 20.09.2019 at 1.00 pm.”
(emphasis supplied)
On 20.9.2019, when the matter was taken up, the Court recorded
the following order: -
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms. Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00 pm on
applications, one application under Order 1 Rule 10 and Order 23
Rule 1a r/w Section 151 CPC and other application under Section
151 CPC have been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file case law.
Be listed for orders on 21.09.2019.
Sd/-
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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Once again, the Court did not advert to the crucial aspects as to
whether the application under consideration had been duly served upon
the appellant much less notice relating to application under Section 151
of the CPC filed by the respondent, as also, the subsequent application
for transposition under Order I Rule 10.
9. Accordingly, on 21.9.2019, the matter was posted for hearing
before the Family Court when two separate orders came to be passed.
The first order was that despite knowledge about the pending proceedings,
the appellant had abandoned and withdrawn from the case for which
reason the respondent was entitled to be transposed as the petitioner in
the guardianship petition and seek declaration that she was the guardian
of the minor child.  It is stated that no notice of the transposition application
was ever served on the appellant nor was he given notice regarding
hearing of the said application before the Court, despite the fact that his
counsel had been discharged from the case and the appellant was not
represented by any other counsel. On the same day, the Family Court
then proceeded to decide the main guardianship petition (G.P. No. 09/
2018). After recording the material facts pointed out by the respondent,
it proceeded to hold that giving guardianship of the minor child, who was
only two and half years of age, to the appellant, was not advisable. By
virtue of his conduct, he (appellant) had
disentitled himself to be declared
as guardian of the minor child. After recording this finding, the Court
proceeded to hold that in the paramount interest and welfare of the
child, the respondent mother needs to be declared as the sole, exclusive
and absolute guardian and custodian of the minor child.
10. Feeling aggrieved, the appellant approached the High Court
by way of MAT Appeal (F.C.) No. 85/2020 to challenge the aforesaid
judgment and orders passed by the Family Court, dated 21.9.2019. The
appellant had raised diverse grounds to challenge the correctness of the
view expressed by the Family Court including the manner in which the
impugned orders were passed, without giving fair opportunity to him and
also about failure to follow mandatory procedure. The impugned orders
were passed by the Family Court without following due process of law
and in breach of principles of natural justice, in the matters of discharging
his advocate and not issuing notice to the appellant even thereafter, calling
upon him to make alternative arrangements, and more so in allowing
transposition of the respondent as petitioner and appellant as respondent
and on the same day to declare her (respondent) as the sole, exclusive
and absolute guardian and custodian of the minor child.
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11. According to the appellant, the judgment under appeal is not a
judgment in terms of Section 17 of the 1984 Act. That the record of the
case makes it amply clear that the Family Court failed to adhere to the
established practice and procedure to be followed for adjudicating the
disputes brought before it under the 1984 Act. That is evident from the
order dated 13.9.2019, which records that notice be issued to the appellant
herein and his counsel returnable on 16.9.2019. at 2.00 p.m. However,
on 16.9.2019, when the counsel appearing for the appellant – Mr. Rajat
Bhalla informed the Court that he intended to take discharge and his
application came to be allowed by the Court, no notice thereof was
given to the appellant. The order clearly records that dasti report regarding
service of notice sent to the appellant was still awaited. As a matter of
fact, on an earlier date, the Court had posted the matter for 30.10.2019,
which date stood unilaterally cancelled by the Family Court in terms of
order dated 16.9.2019, again without notice to the appellant. Further, no
affidavit of service was filed on record indicating the factum of service
of notice on the appellant regarding the application under Section 151 of
the CPC filed by the respondent praying that she be declared as the
sole, exclusive and absolute guardian and custodian of the minor child.
Despite that, the Court proceeded with the matter on 19.9.2019, but
before that date, another application came
to be filed by the respondent
for transposing her as petitioner in the guardianship petition and appellant
as respondent therein, for the reasons mentioned in the application dated
18.9.2019. Even copy of this application was not served on the appellant
and despite that, the Family Court proceeded therewith on 19.9.2019
without recording the fact as to whether the appellant was duly served
with the earlier application or the earlier notice; and yet chose to list the
matter on the next day i.e., 20.9.2019 for consideration at 1.00 p.m. In
short, it is urged that the record plainly speaks about the manner in which
the Family Court proceeded to pass the orders on 21.9.2019, with tearing
hurry at the behest of the respondent whilst completely disregarding the
mandatory procedure prescribed in the 1984 Act read with the provisions
of the CPC. It was a clear case of infraction of principles of natural
justice. It is urged that it was not open to the Family Court to assume the
factum of appellant having abandoned the proceedings unless he had
appeared in Court to say so or had informed the Court in writing in that
regard. It is a question of fact and not a matter for deducing legal
presumption. Assuming that the Court was convinced that the appellant
was not pursuing the proceedings diligently or was creating obstruction
in any manner, the Court, at best, could have dismissed the petition filed
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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by the appellant on the ground of default or non-prosecution under Order
IX Rule 8 of the CPC. In any case, since the Court chose to proceed
with the transposition application ex parte against the appellant, it should
have clearly recorded that fact in its order and the reasons in support
thereof. Besides, after transposition of respondent as the petitioner in
the guardianship petition (G.P. No. 09/2018) filed by the appellant and
appellant as respondent therein, it was imperative for the Court to issue
notice to the appellant to file his response in the proceedings. As a matter
of fact, in guardianship proceedings, the question of transposition does
not arise. For, it is a substantive petition founded on cause of action
personal to the person claiming to be guardian of his own ward. Moreover,
admittedly, the respondent had never filed written statement to oppose
the guardianship petition filed by the appellant much less reply to the
application(s) for amendment of petition, which could be treated by the
Court as guardianship petition filed by the respondent herself. In either
case, the Court was obliged to issue notice to the appellant and only
after service of notice, could have proceeded in the matter. If the
respondent had any difficulty in effecting service of notice on the appellant,
the Court could have allowed the respondent to serve the appellant through
substituted service under Order V of the CPC. Even
that attempt was
not made by the Court. Instead, it presumed that the appellant had
abandoned the proceedings. That approach is manifestly wrong. Hence,
the procedure followed by the Family Court until culmination of
proceedings into judgment and orders dated 21.9.2019, is vitiated in law.
12. The appellant is relying on dictum in Mamata Mayee Sahoo
vs. Abinash Sahoo9, 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 Dayal10, was inapposite. It
was clearly 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 counsel appearing for the appellant having withdrawn
from the case. That does not mean that the appellant had abandoned the
proceedings. It is 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
9 2015 SCC Online Ori 167
10 2016 SCC Online Del 4585
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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 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 Family Court in the guise of entertaining application under
Section 151 of the CPC, cannot assume the plenary power of a
constitutional Court, but is obliged to decide the case as per the mandatory
procedure prescribed in the concerned Act and/or the CPC, as the case
may be, for conduct of trial and inquiry. Strikingly, the Family Court,
after pronouncing the impugned judgment and orders on 21.9.2019, upon
an application filed by the respondent under Section 151 of the CPC,
despite becoming functus officio, issued directions vide order dated
16.10.2019 to the effect that the custody of the minor child be handed
over to the respondent mother within specified time. It was matter of
record that the child was away from the jurisdiction of the Family Court
when the relevant orders came to be passed. In law, therefore,
the Family
Court could not have exercised jurisdiction as noted in Ruchi Majoo vs.
Sanjeev Majoo11.
13. The appellant asserts 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 of the 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
counter claims 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
about the unfitness or otherwise of the father to be a guardian. That
must be in the context of the child care and not other matters or worldly
activities of father. As a matter of fact, contends the learned counsel,
11 (2011) 6 SCC 479
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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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. Further, the paramount interest and welfare of the child is not
limited to being connected with father and mother, but even other family
members from both sides for her well-being and holistic growth. That is
vital in the context of child psychology and upbringing. As a matter of
fact, during counselling, the respondent had accepted the fact that
because she is a working woman, the child can remain with the
grandparents, who were staying only few houses away, during the day
time on working days. The appellant had highlighted several aspects
about the unfitness of the respondent to groom the child or devote enough
time and attention herself.
14. Reliance has been placed on the dictum in Savitha Seetharam
vs. Rajiv Vijayasarathy Rathnam12, JK vs. NS13, Tushar Vishnu Ubale
vs. Archna Tushar Ubale14, Law Commission of India Report No.
25715 and Child Access & Custody Guidelines alongwith Parenting
Plan16. According to the appellant, joint custody or shared parenting
would be in the “best interest and welfare of the child”. That would
ensure that every decision taken regarding the child is for fulfilment of
her basic rights and needs, identity, social well-being and physical,
emotional and intellectual development. Reliance is placed on decision
in Lahari Sakhamuri vs.
Sobhan Kodali17, Ashish Ranjan vs.
Anupma Tandon & Anr.18, Tejaswini Gaud & Ors. vs. Shekhar
Jagdish Prasad Tewari & Ors.19, and Vivek Singh vs. Romani
Singh20.
15. It is urged that the respondent for reasons best known to her,
precipitated the matter despite the pre-emptory 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.
12 2020 (4) AKR 372 (paragraphs 9-11, 13, 23 and 32)
13 2019 SCC Online Del 9085 (paragraphs 89 and 95-97)
14 AIR 2016 Bom 88 (paragraphs 15 and 17-20)
15 Law Commission of India Report No. 257 – Reforms in Guardianship and Custody
Laws in India (May, 2015)
16 Child Access & Custody Guidelines alongwith Parenting Plan by Child Rights
Foundation NGO, Mumbai, 2014
17 (2019) 7 SCC 311
18 (2010) 14 SCC 274
19 (2019) 7 SCC 42
20 (2017) 3 SCC 231
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The respondent herself is a U.S. citizen. Therefore, the appellant
apprehends that the respondent has 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 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.
16. As a matter of fact, in the Indian context, neither provisions of
the 1984 Act nor the 1890 Act, envisage a declaration in favour of the
parent to be the sole, exclusive and absolute guardian and custodian of
the minor child. Such declaration has been intentionally obtained by the
respondent from the Family Court to serve her ulterior purpose. The
appellant has taken us through other points to buttress the argument that
the respondent is not a fit person for parental custody or guardianship of
the minor child. The appellant has also relied on the observations in
Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr.21, Prateek
Gupta vs. Shilpi Gupta & Ors.22, Kanika Goel vs. State of Delhi &
Anr.23 and ABC vs. State (NCT of Delhi)24. According to the appellant,
the father being a natural guardian under the Hindu Laws, is entitled for
declaration of guardianship unless it is found in a given case that he is
unfit in the
context of parenting of the minor child or would act against
the interest and welfare of the minor child, as the case may be. According
to the appellant, the father is a natural guardian. Irrespective of the
mother’s custody, the guardianship of the father cannot be divested in
law. To buttress this contention, reliance is placed on Roxann Sharma
vs. Arun Sharma25. It is contended that unless the father is declared as
unfit, the relief of declaring him to be the guardian cannot be declined.
The fact that the appellant had taken the child away from the jurisdiction
of the Family Court, does not mean that he was a kidnapper of the child,
as he continues to be a natural guardian.
17. It is also urged that interparental child removal is not a statutory
offence. Reliance has been placed on the Hague Convention on the
Civil Aspects of International Child Abduction, dated 25.10.198026
21 (2017) 8 SCC 454
22 (2018) 2 SCC 309
23 (2018) 9 SCC 578
24 (2015) 10 SCC 1
25 (2015) 8 SCC 318
26 for short, “the 1980 Hague Convention”
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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to contend that issue of accession to the 1980 Hague Convention is still
under consideration of the Government of India and interparental child
abduction has not yet found any recognition in Indian law.
18. According to the appellant, the impugned judgment and orders
cannot be sustained on any parameter and need to be set aside and
instead, the guardianship petition (G.P. No. 09/2018) filed by the appellant
be made absolute in favour of the appellant.
19. The respondent has stoutly refuted the stand taken by the
appellant. It is urged that the Family Court had no other option, but to
proceed on the basis that the appellant had abandoned the proceedings
before that Court. Merely because there is no express statement
forthcoming from the appellant in the proceedings before the Family
Court, does not mean that he had not abandoned the proceedings before
the Family Court by his conduct and other circumstances established
from the record and so noted even by the High Court. The appellant
admittedly filed proceedings in the UAE Court claiming himself to have
converted to Islam. It is only when it became impossible for him to
continue with those proceedings and his arrest became inevitable, he
had no other option, but to withdraw those proceedings and submit to the
jurisdiction of this Court. Such a litigant cannot be shown any indulgence
nor would deserve any sympathy. The appellant is required to discharge
high burden of
estoppel, in raising procedural deficiencies in the decision-
making process by the Family Court. In any case, the facts and the
record would reveal that the appellant had full notice about the progress
of the matter and the applications filed by the respondent, as is evident
from his email trail. It is urged that the appellant because of his conduct,
has denied himself of raising technical pleas about procedural lapses
committed by the Family Court. The procedural justice is always
subservient to the substantive justice. It is urged that hyper technical
argument of the appellant regarding non-compliance of procedure by
the Family Court, needs to be negatived in light of the exposition in
Sangram Singh vs. Electional Tribunal, Kotah & Anr.27, State of
Punjab & Anr. vs. Shamlal Murari & Anr.28 and Rosy Jacob vs. Jacob
A. Chakramakkal29.
27 AIR 1955 SC 425 (paragraph 16)
28 (1976) 1 SCC 719 (paragraph 8)
29 (1973) 1 SCC 840
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20. In the alternative, it is submitted that there are strong reasons
why the order passed by the Family Court needs to be upheld. For, the
appellant not only converted himself to Islam but also indulged in
misadventure by abducting minor child and taking her away outside India
and obtained Dominica citizenship and Dominica passport for the minor.
The mother being the natural guardian and the appellant having
misconducted rendered himself to be unfit as guardian, the Family Court
justly recognised the respondent as the sole guardian of the minor.
21. As regards the U.S. citizenship taken by the respondent of the
minor child and U.S. passport, the respondent through counsel submits
that she would surrender the same. That was taken by the respondent in
good faith and for the welfare of the minor child. It is urged that the
Family Court has done independent evaluation of the relevant factual
matrix before concluding that giving guardianship to the appellant father
would not be advisable and instead, the respondent was the fit person to
be appointed as sole, exclusive and absolute guardian and custodian of
the minor child. That can be discerned from the discussion in paragraphs
15, 17 to 28 of the impugned judgment. It is urged that the minor child is
not comfortable while in company of the appellant or his family members,
whereas, she is being properly looked after by the respondent and her
family members. Even though the respondent is a working woman being
a professional, she is conscious of her obligation towards the minor child
and gives her best for the welfare and upbringing of her daughter. The
present arrangement of visitation permitted by this Court in the connected
proceedings to appellant can continue on same terms without disturbing
the decision of the Family Court declaring the respondent as the sole
guardian of the minor. The respondent is willing to abide by any terms
and conditions, as may be imposed by this Court to secure the welfare
and interest of the minor child. The appellant having converted himself
to Islam for reasons best known to him, has disentitled himself from
acting as a guardian of the child who continues to remain Hindu.
22. Reliance is placed on Section 6 of the Hindu Minority and
Guardianship Act, 195630. As per the proviso therein, no person is entitled
to act as the natural guardian of a minor under the provisions of Section
6, if he has ceased to be a Hindu. There being a clear embargo by
statute coupled with the welfare of the minor child, the appellant is unfit
for a declaration sought by him. The appellant had indulged in abduction
30 for short, “the 1956 Act”
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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of the minor child on two occasions, which has been frowned upon by
the High Court in habeas corpus proceedings and more particularly, in
contempt action initiated against the appellant and his family members.
That itself is a good reason to deny any relief to the appellant. Rather,
the appellant should not be heard until he purges contempt and those
proceedings are still pending before this Court. This Court ought to
exercise parens patriae jurisdiction, keeping in mind the paramount
interest of the minor child as observed in Gaurav Nagpal vs. Sumedha
Nagpal31, especially because the appellant has acted against the welfare
of the minor. Any other view would result in rewarding him for his
misconduct and misadventure including the disobedience of the directions
issued by the High Court, by abducting the minor on two occasions, the
first one when she was seven months old and the second when she was
only two years old. The minor must have undergone traumatic experience
because of such abduction and taking her away to foreign country
completely blocking out from her mother (respondent). This is not a
case of over-zealous emotional father, who loves his child, but is a
revengeful father who hates his wife (mother of minor child), much
more than his proclaimed love for his child. The appellant is unfit as a
model parent and does not have moral values of an upstanding citizen
who respects the law and cares about the people
around him.
23. Reliance has been placed on the pleadings filed by the appellant,
wherein he had gone to the extent of showing distrust in the judicial
system of this country and had converted himself to Islam only to ensure
that the custody of the child remains with him. He did not stop at that,
but also fraudulently obtained passport for the minor child from the
Dominica when her Indian passport was in custody of the High Court.
He devised a legal stratagem of using Indian legal system, as well as,
the Courts in UAE for achieving his immoral plan of retaining custody of
the minor child with him and to completely deny the respondent of any
access or interaction whatsoever with the minor child. The appellant
had approached the Court of equity and having misconducted himself
and abused the judicial process, is not entitled for any relief whatsoever.
It is urged that by now, it is well established that “maternal preference
rule” is the rule codified in the form of Section 6(a) of the 1956 Act,
which gives right to the mother to get absolute custody of the minor
daughter. Reliance is placed on dictum in ABC (supra) in support of this
proposition. According to the respondent, there is an ongoing risk of
31 (2009) 1 SCC 42
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third kidnapping or attempt in that behalf by the appellant. The appellant
is a flight risk and cannot be pinned down in the event he manages to
escape with the minor child. To safeguard the interest of the minor child
in appropriate way and to ensure that she is not denied of the motherly
love of the respondent and her family members as well, it will be just and
proper to uphold the decision of the Family Court. Further, there is no
merit in the argument of the appellant that because of stated procedural
lapses committed by the Family Court, the matter needs to proceed afresh
before the Family Court. That would be a futile exercise because the
conduct of the appellant all throughout has disentitled him for being
declared as a fit person for being the guardian of minor child.
24. Our attention was drawn to various documents to support the
argument about the manner in which the appellant had misconducted
with her (respondent) including disobeying the directions issued by the
High Court and resultantly, caused immense tension and stress to the
minor child of such a tender age, because of her abduction on two
occasions. 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.
25. We have heard Mr. Anil Malhotra, learned counsel for the
appellant and Mr. Shyam Divan, learned senior counsel for the respondent.
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.
28. The Family Courts came to be established under the 1984
Act. Section 7 specifies the jurisdiction of the Family Court and about
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]
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the nature of claims to be adjudicated by it in the form of suits and
proceedings delineated in the explanation in sub-section (1). Section 10
predicates about the procedure generally. The provisions of the CPC
are made applicable for 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. A Family Court
can receive as evidence any report, statement, documents, information
or matter that may, in its opinion, assist it to deal effectually with a dispute,
whether or not the same would be otherwise relevant or admissible under
the Indian Evidence Act, 1872. There is another provision, which gives
insight into the working of the Family Court in the form of Section 15. It
posits that the Family Court shall not be obliged to record the evidence
of witnesses at length, but the Judge, as the examination of each witness
proceeds, shall, record or cause to be recorded, a memorandum of the
substance of what the witness deposes, and such memorandum shall be
signed by the witness and the Judge and shall form part of the record.
An incidental provision regarding efficacy of recording of evidence can
be traced to Section 16 of the 1984 Act. That envisages that evidence of
any person where such evidence is of a formal character, may be given
by affidavit and may, subject to all just exceptions, be read in evidence in
any suit or proceeding before a Family Court.
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.
30. We may usefully refer to the provisions of the 1890 Act, as
invoked by the appellant by filing petition before the Family Court. The
appellant admittedly filed petition before the Family Court under Section
7 of the 1890 Act read with Section 7(g) of the 1984 Act. Section 7 of
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the 1890 Act bestows power in the Court to make order as to guardianship
in respect of a minor. Such prayer can be made by anyone interested in
the welfare of the minor and “not limited to the father and mother of the
minor”. In this inquiry, the Court, if so satisfied that it is for the welfare
of the minor, is free to appoint the applicant as a guardian of person or
property of the minor or both or merely declaring a person to be such a
guardian. Section 8 of the Act makes it amply clear as to who is entitled
to apply for the order. It has specified four categories of persons. First is
person desirous of being the guardian of the minor. The second is any
relative or friend of the minor. The third is the Collector of the district or
other local area within which the minor ordinarily resides and the fourth
is the Collector having authority with respect to the class to which the
minor belongs. Such application is required to be filed before the District
Court having jurisdiction in the place where the minor ordinarily resides
under Section 9 of the 1890 Act. As regards procedure for such an
application, it is delineated by providing for the form of application in
Section 10 of the Act, which must contain necessary information referred
to therein. Section 11 prescribes for the procedure in the event the Court
is satisfied that there is ground for proceeding on the application. That
would require adducing of evidence before making an order in terms of
Section 13 of the 1890 Act. The Court is required to consider certain
matters as specified in Section 17 of the 1890 Act and while making
order, must also bear in mind the exception provided in Section 19 as to
who should not be appointed as guardian.
31. Suffice it to observe that both the enactments (the 1984 Act
and the 1890 Act), provide for procedure in the form of disclosures,
declarations and assertions and its refutations by the other party opposing
the claim, whereafter the matter proceeds for recording of evidence
followed by the declaration or order passed by the Court. Intrinsic in all
these steps is to guarantee fair opportunity to all concerned.
32. 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?
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
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[A.M. KHANWILKAR, J.]
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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,
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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. Be that as it may, when the matter was listed on 20.9.2019, the
Court after hearing the learned counsel for the respondent passed the
following order (also reproduced in paragraph 8 above): -
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms. Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00 pm on
applications, one application under Order 1 Rule 10 and Order 23
Rule 1a r/w Section 151 CPC and other application under Section
151 CPC have been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file case law.
Be listed for orders on 21.09.2019.
Sd/-
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
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
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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
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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
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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.
42. A priori, we have no hesitation in setting aside the ex parte
impugned judgment and orders dated 21.9.2019 passed by the Family
Court on transposition application, as well as, on the application for
declaration that the respondent is the sole, exclusive and absolute guardian
and custodian of the minor child. For the same reasons, the purported
follow up order passed on 16.10.2019 by the Family Court, directing
handing over custody of the minor child within the time specified therein,
is also set aside. As these orders are set aside,
any action taken on the
basis of the aforesaid orders is to be regarded as non-est in law and is
so declared hereunder. That does not mean that the custody of the minor
child needs to be restored to the father (appellant) forthwith. That issue
will have to be decided finally by the Family Court in the proceedings
remanded in terms of this order.
43. By this order, we direct remand and revival of the Guardianship
petition (G.P. No. 09/2018) and also all applications filed in the main
guardianship petition by the appellant. In other words, the two applications
for amendment of 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
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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 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.
44. It was brought to our notice that the respondent has taken
U.S. citizenship for the minor child and also 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.
45. The appeal is partly allowed in the aforementioned terms
(referred to in paragraphs 42 to 44). The transferred case is accordingly
disposed of. No order as to costs. All pending applications in this case
are disposed of.
Nidhi Jain
Transferred case disposed of.
AMAN LOHIA v. KIRAN LOHIA
[A.M. KHANWILKAR, J.]