Aman Lohia vs Kiran Lohia

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 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 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; 1158A-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 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 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 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]

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, Mumbai, 2014; Law Commission of India Report No.

257 – Reforms in Guardianship and Custody Laws in India (May, 2015) – referred to.