Delhi High Court
Pankaj Jain vs Parul Jain on 9 September, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 30.08.2024
Judgment delivered on: 09.09.2024
+ CM(M) 2406/2024 & CM APPL. 24187/2024 & CM APPL.
38452/2024 & CM APPL. 42124/2024
PANKAJ JAIN .....Petitioner
versus
PARUL JAIN .....Respondent
Memo of Appearance
For the Petitioner: Petitioner in person.
For the Respondent: Mr. Rama Kant Sharma with Mr. Prateek Avasthi and
Ms. Akriti Tyagi Seth, Advocates with respondent
in person.
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
MANOJ JAIN, J
1. Another battle between the two sparring spouses over custody of
their child.
2. For the sake of convenience, I would be referring to the petitioner
Sh. Pankaj Jain as “father” and respondent Ms. Parul Jain as “mother” in
the present judgment.
3. The facts are somewhat unusual and multifaceted.
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4. The parties got married on 22.04.2006 in accordance with Hindu
rites and ceremonies. They were blessed with a baby girl on 11.02.2013.
5. The mother left matrimonial home along with her daughter on
10.03.2018.
6. Soon thereafter, the father filed a petition seeking divorce on the
ground of cruelty. Such petition is pending adjudication and we are,
presently, not concerned with the same.
7. The matter herein relates to one Guardianship Petition filed by the
father.
8. Such petition was filed in May, 2018 under Section 7 and 25 of the
Guardians and Wards Act, 1890 (in short “G&W Act”). The petition has
been registered as GP No.54/2018 and seeks custody of said daughter.
9. The abovesaid petition is being contested, tooth and nail, by
mother. On the basis of the averments appearing in the pleadings, the
following issues were framed: –
I. Whether petitioner is entitled to permanent custody of minor
daughter Ms. Pinar Jain? (OPP)”
II. Relief.
10. In the interregnum, there were also directions regarding interim
custody for weekends, including overnight custody and the custody
during the vacation and certain special occasions and festivals.
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11. According to the father, their daughter was uncomfortable with her
mother and since her such distress level continued to go up, she came to
his house on 16.03.2023, claiming that she had decided not to stay with
her mother anymore.
12. Thus, according to father, their such daughter was not at all
interested in going back to her mother, being in a very bad psychological
state on account of conduct of her mother. Whereas, according to the
mother, there was nothing of that sort and, actually, she had been tutored
by her father.
13. And, as already noted, the father wanted her custody and for said
purpose only, he had filed the above guardianship petition.
14. It will be also appropriate to mention, albeit in brief only, that
during further proceedings, the learned Family Court directed the father
to restore the custody to her mother, else to face arrest. Aggrieved by
such order, the father filed an appeal before learned Division bench of
this Court, which was dismissed summarily.
15. Eventually, the father i.e. the petitioner herein filed a Special Leave
Petition (SLP) before the Hon‟ble Supreme Court. The Hon‟ble Supreme
Court stayed arrest and also interacted with the child.
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16. Said petition i.e. SLP (C) 14915/2023 was disposed of on
15.02.2024 and it will be appropriate to extract the abovesaid order,
which reads as under:-
“Heard learned counsel for the petitioner and the respondent.
The dispute out of which the present proceeding arises is over custody of the
girl child of the parties. The petitioner and the respondent, being the mother
and father of the child have matrimonial disputes and are living separately.
The father‟s application for custody of the child under Sections 7 and 25 of
the Guardianship and Wards Act, 1890 registered with the Family Court, Tis
Hazari(West), Delhi is still pending. On 5thJuly 2023, an order was passed by
the Family Court in certain interlocutory proceedings in connection with the
aforesaid petition in exercise of jurisdiction under Section 45 of the 1890 Act,
directing, inter-alia, handing over custody of the child to the mother by the
next day. The father preferred an appeal in the High Court of Delhi against
the said order and a Division Bench of the High Court on 10thJuly 2023,
dismissed the said appeal. In this petition, the aforesaid order of the High
Court has been assailed.
We are of the view that the Family Court would be the appropriate forum for
taking a final decision on the question of custody in the pending petition made
under Sections 7 and 25 of the 1890 Act. This matter has been heard on
several occasions by this Court and attempt was made to find a resolution, but
no solution could be worked out by and between the parties.
We are apprised that hearing in the main case for custody has reached an
advanced stage before the Family Court. We, accordingly, dispose of this
petition with a request to the Family Court to conclude hearing of the matter
as expeditiously as possible.
Till final decision is taken by the Family Court, the custody of the child shall
remain with the father. We are not expressing any opinion on merits in this
order lest it influences the Family Court while taking a decision in the
proceeding pending before it. We are also refraining from making any
comment as to whether the present custody of the child with the father is legal
or not. During pendency of the proceeding before the Family Court, the
question of respondent‟s visitation right shall be determined by the FamilyCM(M) 2406/2024 Page 4 of 24
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Court itself and for this purpose, the respondent shall be at liberty to make
appropriate prayer.
Pending application(s), if any, shall stand disposed of.
CONMT.PET.(C) Nos.860-861/2023 in SLP(C) Nos.6535-6536/2023
We dispose of the present contempt petitions with liberty to the petitioner
therein i.e. „Parul Jain‟ to apply afresh before the appropriate forum, should
such occasion arise.
Pending application(s), if any, shall stand disposed of.”
17. Admittedly, such daughter, thus, still continues to be with her
father.
18. However, in between there were significant happenings.
19. The father moved an application before the learned Family Court
seeking withdrawal of his guardianship petition and, simultaneously, his
wife moved an application under Section 10(3) of the Family Courts Act,
1984 seeking to get herself transposed as petitioner in the abovesaid
guardianship petition.
20. The learned Trial Court disposed of the abovesaid both
applications by common order dated 21.11.2023 and the application of
father seeking withdrawal was rejected with the direction that he would
continue to be one of the parties in the present petition. The application
moved by the mother was allowed and she was transposed as the
petitioner. The learned Family Court observed that the petitioner (father)
was trying to take advantage of his own wrongs and the application for
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withdrawal had been moved since he had the custody of her daughter
while taking advantage of the interim orders passed by the Court and the
transposition request of the mother was allowed while relying on
Someshwar Dayal vs. Anupama Dayal: 2016 SCC OnLine Del 4585.
21. The learned Family Court observed that it was conscious that the
transposition of the parties involved various procedural/technical issues
related to amendment of pleadings and evidence etc. but since the
paramount consideration was welfare of the child and since the pleadings
and the evidence of the respective parties were already on record and
their averments were also very clear, there was no requirement of
amending the pleadings or for that matter, recording evidence afresh.
22. Such order was challenged before the learned Division Bench of
this Court and vide order dated 12.12.2023, such appeal MAT APP(FC)
367/2023, too, was dismissed. Para 6 to para 10 of said order, germane in
the present context as well, read as under: –
“6. We have given considered thought to the contentions raised.
There is no dispute as to the proposition that the nature of inquiry before the
Family Court is adjudicatory and while adopting the procedure under sub-
section 3 of Section 10 of the Family Courts Act, 1984, the Court is bound to
follow the foundational principles of fairness of procedure and natural justice
along with the norms prescribed in the relevant statutes.
On the face of record, the learned Family Court appears to have adhered and
followed the practice and procedure for the purpose of adjudicating the
guardianship petition which was under consideration before it under the
Family Courts Act, 1984. Merely because the appellant filed an application
for withdrawal of the guardianship petition, it cannot be presumed that theCM(M) 2406/2024 Page 6 of 24
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Court became functus officio to further deal with the matter. The narration of
facts as observed above and also noticed in the impugned order clearly reflect
that sufficient time and opportunity was granted to the appellant to make
submissions. In fact, detailed submissions were made by the appellant before
the Family Court though the proceedings were also challenged for want of
proper service of application for transposition. Apparently, nothing restrained
the appellant from filing a reply to the said application, if he so desired.
Perusal of record reflects that the appellant sought to withdraw the
guardianship petition at the fag end, only to ensure that the orders for
handing back of the custody of the child remain non-complied. It cannot be
ignored that the pleadings had been duly completed and evidence had been
almost led by the parties in respect of their respective stand before the Family
Court. It does not appear to be logical that when the parties had almost
concluded their evidence before the Court and the matter reached at the final
stage after following the due procedure of law, rights of respondent for
adjudication of her rights for custody of the child could be defeated by merely
permitting the appellant to withdraw the petition and burden her to file a fresh
guardianship petition.
7. It is well settled that in the guardianship and custody matters, the Court
exercises the „parens patriae jurisdiction‟ keeping in perspective the welfare
of the minor child. The child would continue to remain the sufferer on account
of discord between the parents, in case the rights of the parties are not
expeditiously determined as per law. The procedural law is always
subservient to the substantive justice and hyper-technical procedure can not
be insisted upon in view of clear mandate under sub-section 3 of Section 10 of
the Family Courts Act, 1984, which permits the Family Court to lay down its
own procedure with a view to arrive at a settlement in respect of the subject
matter of the suit or proceedings or at the truth of the facts.
8. In the facts and circumstances of the case, we are of the considered view
that if the application for withdrawal of the guardianship petition preferred by
the appellant is permitted, the same would result in mere abuse of judicial
process, defeating the rights of the respondent mother for adjudication of her
guardianship rights and return of the custody of the child to the respondent.
It is also pertinent to observe that the very purpose of transposition is to
enable the effective and comprehensive adjudication of the mater inCM(M) 2406/2024 Page 7 of 24
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controversy between the parties and the Court has wide powers to grant such
a prayer for transposition, if the appellant seeks to withdraw or abandon his
claim only in order to defeat the rights of the respondent for custody of the
child. Such transposition, if denied, would also lead to unnecessary
multiplicity of the proceedings and delay the adjudication of the rights of the
respondent qua custody of child, as already observed above.
9. The factual position in Aman Lohia (supra) relied by the learned counsel
for the appellant appears to be clearly distinguishable since in the aforesaid
case, there appears to be non-compliance with the prescribed procedure and
in fraction of principles of natural justice as also noticed by the learned Trial
Court. There is no dispute as to the proposition of law and the observations
made by the Hon‟ble Apex Court in para 48 as referred to by learned counsel
for the appellant.
10. In the facts and circumstances of the case, for the reasons stated herein,
the order passed by the learned Trial Court declining to accept the
withdrawal of the guardianship petition and transposing the respondent as
petitioner appears to be fully justified. The appeal is accordingly dismissed.
Nothing stated herein shall tantamount to an opinion on the merits of the case.
No order as to costs.”
23. The abovesaid order seems to have attained finality as the father
did not take any exception to the same.
24. Things, however, did not stop there.
25. The father, now as opposite party, moved three applications before
the learned Family Judge.
26. These were (i) application under Order VII Rule 10 CPC seeking
return of the petition due to lack of territorial jurisdiction; (ii) application
under Order VII Rule 11 CPC seeking to reject the petition on account of
non-compliance of Section 10 and 25 of G&W Act; and (iii) application
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under Section 151 CPC seeking directions for his wife to amend the
petition in terms of specific observations made by the Hon‟ble Supreme
Court in Aman Lohia vs. Kiran Lohia: (2021) 5 SCC 489.
27. All these three applications have been dismissed by a composite
order dated 02.03.2024, which is under challenge before this Court, at the
moment.
28. The petitioner has appeared in person and has advanced arguments
all by himself.
29. During course of his such arguments, he made reference to various
orders passed by the learned Family Court, by this Court as well as by the
Hon‟ble Supreme Court. He also referred to the relevant provisions
contained in G&W Act and Hindu Minority and Guardianship Act, 1956.
30. Let‟s take note of the reasons assigned by him for moving said
applications.
(a) He contends that he is seeking return of the plaint as there is,
now, a totally new cause of action. He submits that since the child
is, presently, under his care and custody and since his residence
falls under different District of Delhi i.e. North-West District, the
Court at Tis Hazari ceases to have any territorial jurisdiction and,
therefore, cannot continue with the present petition. It is
contended that the „place of ordinary residence‟ of the child inCM(M) 2406/2024 Page 9 of 24
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question has changed and is now of Pitampura, which falls under
North-West District. It is submitted that such expression “ordinary
residence” used in Section 9 of G&W Act has to be given its
natural and literal meaning and, therefore, the Family Court
situated at Tis Hazari Court is no longer competent to try the case
on account of lack of territorial jurisdiction.
(b) The rejection of the plaint has been sought on the ground that
though the Court had permitted transposition but despite there
being such transposition, his wife has not filed any separate
application/petition under Section 7 of G&W Act seeking her to be
appointed as guardian of the minor child and unless and until, she
is appointed as guardian, in his place as otherwise he is already
legally recognized as natural guardian in the first place, the
petition is no longer maintainable and, therefore, the petition is
liable to be rejected under Order VII Rule 11 CPC.
(c) By virtue of third application moved under Section 151 CPC, he
prays that despite there being transposition of his wife as
petitioner, the procedural aspects cannot be given any go bye and,
therefore, the pleadings have to be filed afresh and the parties are
to be permitted to lead evidence in support of their respective
claims, particularly, in light of the subsequent development and the
matter should not proceed further unless and until, these statutory
and procedural requirements are fulfilled.
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31. The petitioner/ father has relied upon Aman Lohia Vs. Kiran Lohia:
(2021) 5 SCC 489, Bachhaj Nahar Vs. Nilima Mandal & Anr.: (2008) 14
SCR 621, Ram Singh Vs. Lila Devi: MANU/DE/0153/1969, Hashmat Ali
Vs. Srimat Suraya Begam: 1970 SCC OnLine All 213, Smt. Radha @
Parimala Vs. N. Rangappa: ILR 2004 KAR 3212, Prakash Chandra Jain
Vs. Smt. Chandrawati Jain: 1995 SCC OnLine Raj 70, Ashok Kumar Seth
Vs. State of Orissa: MANU/OR/0264/2002, Khyali Ram and Ors. Vs.
State of U.P. and Ors.: MANU/UP/0351/1971, Ramit Kumar Dey Vs.
Rituparna Dey and Ors.: MANU/WB/0121/2019, Ram Kishore Singh Vs.
NIrmala Devi Kushwaha and Ors.: MANU/MP/0737/2006, Tabasum
Manzoor Vs. Abdul Ahad Bhat and Ors.: MANU/JK/0324/2009, Athar
Hussain Vs. Syed Siraj Ahmed and Ors.: MANU/SC/0014/2010, Ismail
Aboobaker and Ors. Vs. State of Kerala:MANU/KE/0007/1968, Ramesh
Tukaram Gadhwe and Ors. Vs. Sumanbai Wamanrao Gondkar and
Ors.:MANU/MH/0866/2007, Ruchi Majoo Vs. Sanjeev Majoo:
MANU/SC/0621/2011, Dandu Sridhar Vs. Pothamashetty Padma Priya
and Ors.: MANU/AP/0925/2003, Ruhi Sahina Vs. Syed Masidur
Rahman: MANU/WB/1586/2016, Chimanlal Ganpat Vs. Rajaram
Maganchand Oswal: MANU/MH/0120/1936, Dipika Agarwal nee
Khaitan Vs. Rishi Agarwal: MANU/WB/0199/2020, Ms. Sumeet Vs.
Anupam Gupta: 2010:DHC:1880, Samiulla Saheb & Anr. Vs. Mohammed
Sameer: WP No. 6789 of 2023, Arunish Sood Vs. Kumar Sood and Ors.:
MANU/DE/2998/2011, Biny Kuriakose and Ors. Vs. Joseph
Sebastianaged and Ors.: MANU/KE/2711/2022, Assem Aggarwal Vs.CM(M) 2406/2024 Page 11 of 24
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Ashi Kumar: 2023:DHC:5884-DB, Kanwar Singh Saini Vs. High Court
of Delhi: MANU/SC/1111/2011 and Someshwar Dayal Vs. Anupama
Dayal: 2016 SCC OnLine Del 4585.
32. All such contentions have been vehemently refuted by the learned
counsel for the respondent/mother.
33. It is argued that the present petition is another example of abuse of
process of law and the ulterior purpose and the malafide intention on the
part of father is writ large. It is contended that all the pleas which have
been raised by the petitioner by moving the abovesaid three applications
are virtually reiteration of what he had claimed earlier when he had
sought withdrawal and opposed the request of transposition and since the
abovesaid order dismissing his withdrawal request and permitting the
transposition has already attained finality, these applications do not have
any substance or merit. It is contended that these have been moved
simply to prolong the proceedings, particularly, in view of the fact that he
is having the custody now. It is submitted that such custody cannot be
termed as a legal custody. The petitioner feels that since he has got back
the custody of his daughter, if the petition, which he had earlier filed and
in which the evidence had also been recorded and the case was already at
the stage of final arguments, is permitted to be withdrawn and there is no
transposition either, the mother would be constrained to file petition
afresh and would have to fight another long-drawn legal battle to get back
the custody and sensing such ingenuity on his part, learned Division
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Bench of this Court upheld the rejection of his application seeking
withdrawal and also upheld the allowing of request made by the mother
seeking her transposition as petitioner. It is submitted that there is no
reason whatsoever either to reject or to return the petition and the learned
Trial Court should rather be directed to hear the final arguments and
adjudicate the petition as expeditiously as possible.
34. It is also submitted that the paramount consideration in such type
of matters is always the welfare of the child, and nothing else. It is
argued that the procedural aspects cannot be permitted to govern and
reign control over the outcome of the case and, therefore, it is a fit case
where the petition should be dismissed with heavy cost.
35. This Court has given anxious consideration to the rival contentions
and carefully perused the various orders passed in the present matter by
various courts, from time to time.
36. Conscious of the fact that the petition is pending adjudication
before the learned Family Court, this Court also would not make any
comment whether the custody of the child with her father can be said to
be a legal one or not though, at the same time, it can, definitely, be said to
be a custody, which is provisional, in the sense that it still does not have
seal of final affirmation by any court.
37. When the father had moved an application seeking withdrawal of
his guardianship petition, such request was resisted by the mother, who
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had also filed an application seeking her transposition. The learned Trial
Court had permitted transposition while observing as under in para 13:-
“13. This Court is conscious that transposition of the parties
involves various procedure/technical issues relating to amendment
of pleadings, evidence etc., but here as already mentioned
heretoabove the sole and paramount consideration before the court
is the welfare of the subject child. The pleadings & evidence of
both the parties in relation to their respective averments regarding
welfare of child are already on record in the form of petition &
reply (written statement) and evidence. Even the trial is almost
over in the matter. Both the parties in their respective pleadings
and evidence have already averred as to how the welfare of the
child lies with them, therefore, no amendment of pleadings is
required in this case. The matter is already at the fag end of
disposal, therefore, again indulging into the
amendment/procedural issues would further delay the matter which
is already pending since last 5 years i.e. 2018 and moreover for the
reasons that both the parties are in the habit of mud slinging upon
each other and thereby burdening the courts by filing one or other
applications, appeals etc. The subject child is already sufferer in
the hands of her own parents who is not getting proper education
despite being daughter of well educated parents due to their
personal egos who in order to settle their personal vindicta against
each other have reached to the stage to spoil the future of their own
daughter.”
38. As already noticed above, said order was taken in appeal but the
appeal was dismissed and the relevant order of the learned Appellate
Court has already been extracted in detail and it is quite clear that all
these points have been considered and eventually decided against the
petitioner(father). There is, thus, no point or requirement of doing the
entire same exercise, all over again, de novo. As rightly noticed by the
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Appellate Court, the Court exercises parens patriae jurisdiction in
guardianship matter and the transposition was permissible in view of
Someshwar Dayal (supra).
39. The learned Division Bench also observed that the pleadings were
already complete and evidence had been almost led by the parties in
respect of their respective stand before the learned Family Court and,
therefore, it did not appear to be logical that when the parties had almost
concluded their evidence and the matter had reached the final stage after
following the due procedure of law, the rights of mother, who is seeking
custody of her child, could be defeated by burdening her to file a fresh
guardianship petition. It was also observed that the procedural laws were
always subservient to the substantive justice and, therefore, the hyper-
technical procedure could not be insisted.
40. In view of the abovesaid specific observations made by the learned
Division Bench of this Court, it does not seem appropriate for father to,
virtually, re-agitate the same issue in the garb of above-said three
applications.
41. What he cannot do directly, cannot be permitted to do indirectly.
42. On the pretext of seeking amendment in the pleadings, he wants a
de novo trial and which request has already been rejected by the learned
Division Bench of this Court and such order has already attained finality.
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43. The request regarding return of the petition is found to be
completely fanciful and unjustifiable.
44. Even if during the proceedings of the guardianship petition filed by
him, the child came back to him, such fact would not mean anything
substantial in the present factual context.
45. We are not dealing with a petition where any such “jurisdictional
objection” has been taken at the very threshold in any freshly instituted
petition.
46. The jurisdiction existed and vested with the court in question, when
the petition was filed.
47. Mere fact that the child is now with the other parent shall not invite
return of the suit, particularly when, the transposition has been allowed
and upheld as well. The case is already ripe for hearing final arguments
and the manner in which the child has re-united with her father would
not, ipso facto, mean return of the plaint. Mere transposition would not
mean that he, as a defendant, which fact he now seems to have accepted,
gets handle to move such kind of applications. Moreover, since
transposition request has been also duly approved in appeal, there is no
requirement of amending the pleadings or leading the evidence either.
Permitting the same would frustrate the very idea of transposition and
would tantamount to de novo trial. Thus, the contentions made in this
regard are absolutely meritless and seems to have been made simply to
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delay the final adjudication of the matter and, therefore, reliance on
several precedents in this regard seems completely unfounded.
48. Similarly, the contention raised in the context of the rejection of
the plaint under Order VII Rule 11 CPC is also without any substance.
49. According to the father, though his appeal had been dismissed by
the learned Division Bench of this Court but while dismissing such
appeal, even the learned Division Bench had observed that the law laid
down in Aman Lohia Vs. Kiran Lohia (supra) was required to be
followed. He thus reiterates that even if the request for transposition had
been allowed, it was still obligatory for the mother to have filed amended
petition. It has been vehemently contended by the petitioner that there is
neither any formal petition nor it is clear as to what relief is now being
attempted to be sought by the mother, post-transposition and, therefore, in
the absence of any pleadings, issues and evidence led by the parties, it is
not feasible for the learned Trial Court to adjudicate the matter. It has
also been submitted that there is material subsequent development which
happened during the span of last two years and all those facts have yet not
been brought on record and without these material facts being brought on
record, decision may not be in consonance with the objective of the
enactment i.e. welfare of the child. All in all, according to him, even
after transposition, learned Trial Court should have sought amended
pleadings and should have framed the issues afresh. He also highlights
that he, being father, is natural guardian of the minor child whereas the
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mother is not having such legal capacity and moreover there is no petition
filed by her under Section 7 of G&W Act and, therefore, learned Trial
Court is even otherwise not in a position to grant her any relief.
50. The petitioner seems to be harping the same tune, all over again.
51. He, at any cost, wants trial, over again.
52. According to him, transposition is pointless and despite there being
order of such transposition, everything has to be done afresh. According
to him, “custody” and “guardianship” are different concepts as
„guardianship‟ related to onerous responsibility whereas „custody‟ was
much narrower concept and the standard of proof required for
establishing one‟s claim for guardianship was much more stringent vis-à-
vis claim for custody. It is contended that since the welfare of the child is
paramount aspect, the custody cannot be given to „non-guardian‟ and
even the scheme of G&W Act prohibits the same. It is contended that
jurisdiction cannot be conferred merely by an order of transposition and
can only be in terms of specific provisions contained in the statute and
that the learned Family Court ceases to have any jurisdiction as the child
is now residing with him at Pitam Pura which is now the „ordinary
residence‟ of such child.
53. All such contentions do not hold any ground.
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54. The request made by him by moving the abovesaid three
applications were, virtually, implicit when he had opposed the
transposition request and did not meet with any success. These very
contentions were raised by him when he had filed appeal before the
learned Division Bench of this Court and as already noticed above, his
such appeal was dismissed. It is quite evident that he seems to be making
an attempt to ensure that the aforesaid guardianship petition does not
reach its logical end.
55. The petitioner has strongly relied upon Aman Lohia (supra).
56. However, in that case, the situation was altogether different. In
that case, the father had filed a petition under Section 7 of G&W Act on
the assertion that he was having custody of his daughter and was merely
seeking his appointment as her guardian. The respondent in that case did
not file any written statement. The petitioner/father moved applications
seeking amendment in the plaint but even those remained unanswered.
During further proceedings, however, the respondent/wife filed an
application under Section 151 CPC praying therein that she be declared
and appointed sole and absolute guardian and custodian of her minor
child. No notice of such application was given to the appellant nor any
advance copy was supplied to the petitioner personally or through his
counsel. The abovesaid application under Section 151 CPC seems to have
been moved as according to the respondent, some subsequent
development indicated that the petitioner had proved himself to be
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unworthy, incapable and incompetent to act in the welfare of the child.
The counsel for the petitioner sought his discharge but fact remains that
the abovesaid application moved by the respondent under Section 151
CPC was allowed in a tearing hurry, observing that the petitioner had
abandoned and withdrawn from the case and, therefore, the respondent
wife was transposed as petitioner in the abovesaid guardianship petition
and the same day, the main guardianship petition was also decided
holding that giving guardianship of minor child, who was hardly 2 ½
years old to her father was not advisable and keeping in mind the interest
and welfare of the child, mother was straightway declared sole, exclusive
and absolute guardian and custodian of the minor child. Said order was
eventually challenged by the petitioner in Supreme Court.
57. It needs no discerning eyes to fathom that transposition in the
abovesaid case was in altogether atypical factual matrix.
58. The Hon‟ble Supreme Court observed that the Family Court had
exceeded its jurisdiction by hastening the entire proceedings and failed to
guarantee the fairness and transparency in the process which was required
to be followed for proper adjudication. It observed that the Family Court
was required to adhere to the foundational principle of fairness of
procedure and natural justice. In said case, obviously, no written
statement was ever filed by the respondent wife. She did not even file any
response to the application seeking amendment of the plaint. These
applications were never disposed of by the learned Family Court and
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instead of contesting the main petition and the amendment applications,
the respondent wife merely filed an application under Section 151 CPC
seeking her appointment as sole and absolute guardian and such
application was adjudicated in a hurried manner, without giving
appropriate notice to the petitioner and similarly her request for
transposition was also allowed, without even serving notice upon the
petitioner and it was in the above said backdrop that the Hon‟ble Supreme
Court observed that there was no legal presumption about the factum of
abandonment of proceedings and observed that the impugned orders were
passed by the Family Court in a tearing hurry, may be in light of the
observations made by the High Court in habeas corpus and contempt
matters but that could not have been made the sole basis to determine the
factum of fitness or otherwise of the petitioner for being a guardian of the
minor child. Holding that such fact had to be decided on its own merits,
the abovesaid order was set aside.
59. Quite evidently, the facts in the above case are totally
distinguishable as everything therein was done in haste without giving
proper notice to the other side. As noticed, in that case, there was no
written statement either as the petition was not even contested by the
wife.
60. Here, whereas, the things are totally in contrast.
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61. The pleadings are complete. The evidence has already been led by
the parties and transposition, in the above peculiar factual backdrop,
merely means reversing the nomenclature of the parties, and nothing
beyond. The purpose of the transposition would stand thwarted if the
parties are directed to file pleadings afresh and to lead evidence afresh
and therefore, the reliance on Aman Lohia (supra), in the present factual
matrix, is totally misdirected.
62. This Court has gone through various precedents cited at the Bar.
63. Though there cannot be any doubt with respect to the settled legal
position but fact remains that facts of the present case are absolutely
unusual. Here, when the petition filed by the father was at the verge of
disposal, there was unexpected development as the child went back to her
father. In view of above, the father seems least interested in pursuing
with the petition assuming that such custody has become final, for all
purposes. However, merely because of such transitory movement of
child from one parent to another, the proceedings, which are at the fag
end of its legal journey, cannot be permitted to be closed. In such a
peculiar backdrop, evidently there is no requirement of going for
amendment in the pleadings or directing the parties to adduce evidence
afresh. If that is allowed to happen, the very purpose of transposition
would stand defeated, particularly when the learned Division Bench has
noted that the procedural laws are subservient to the substantive justice
and hyper-technical procedure cannot be insisted. Undoubtedly,
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jurisdiction vests strictly in terms of the provisions contained in any
statute or enactment and cannot be conferred either by consent or by any
order of a superior court. However, as already observed above, herein, it
cannot be said that the jurisdiction of the Court stood snatched away.
64. As per the scheme of Hindu Minority and Guardianship Act, 1956,
the father and mother both are natural guardians though father is up in the
order of preference. Here, the case is between two parents only and no
third party is involved. According to father, learned Trial Court cannot
grant custody without deciding the aspect of guardianship and without
ordering that father was no longer fit to continue as a guardian. This
Court would not make any comment in this regard as the case is at the
stage of final arguments and it will be always open to learned Family
Judge to consider the aforesaid aspect in accordance with law. There
cannot be any qualm with respect to the importance of pleadings but as
already noticed above, the transposition has been permitted and upheld
also and, therefore, learned Trial Court would interpret the pleadings in
the aforesaid backdrop of the transposition.
65. In view of the above, there is, evidently, no merit in request
seeking return or rejection of plaint or for that matter, in insisting upon
amendment.
66. Finding no substance in the present petition, the same is, hereby,
dismissed.
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67. Since the matter is already fixed for final arguments, it is expected
that both the sides would render due assistance and cooperation to the
learned Family Court so that it can hear the arguments and dispose of the
petition, as expeditiously as possible.
68. Nothing contained herein would be assumed to be an expression
about the final merits and the learned Family Judge shall decide the case,
without getting influenced by any observation made hereinabove.
(MANOJ JAIN)
JUDGE
SEPTEMBER 9, 2024/st/dr
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