AMAN LOHIA versus KIRAN LOHIA on 17 March 2021

[2021] 2 S.C.R. 1131

AMAN LOHIA

v.

KIRAN LOHIA

(Transferred Case (Civil) No. 25 of 2021)

MARCH 17, 2021

[A.M. KHANWILKAR, B.R. GAVAI ANDKRISHNA 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 guardianshipin respect of a minor – Guardianship petition by the father-appellantseeking declaration as guardian – However, the mother-respondentneither filed the written statement nor filed reply to two applicationsu/Ord. VI r. 17 for amendment of pleadings, which are still pending– Instead the mother filed application u/s. 151 CPC for declaringand appointing her to be sole and absolute guardian and custodianof the minor child, as also application u/Ord. VII r. 11 for dismissalof guardianship petition, and one u/Ord. I r 10 and Ord. XXIII r. 1Ar/w s. 151 CPC to transpose her as petitioner in the guardianshippetition – Appellant not given notice on these applications and alsoin the matter of discharge of his advocate - Family Court declaredthe mother as the sole, exclusive and absolute guardian andcustodian of the minor child; and proceeding on the assumptionthat the father had abandoned the proceedings, transposed themother as the petitioner in the guardianship petition – Propriety of– Held: Family Court exceeded its jurisdiction by hastening theentire proceedings – It did not follow the fair procedure prescribedby the Act – There was non-compliance of the prescribed mandatoryprocedure and infraction of principles of natural justice – Courtcould not have entertained the transposition application filed bythe respondent ex parte without ensuring that it was duly served onthe appellant consequent to notice issued – Guardianship petitionhas to be decided on its own merits taking into account possibilityof joint shared parenting arrangement and child-centric approachwith paramount welfare and interest of the minor child – Thus, theex parte orders passed on transposition application, as well as, onthe application for declaration that the respondent is the soleguardian and custodian of the minor child, is set aside – Issuance

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Aof direction for revival of the guardianship petition and its remandto the family court for fresh adjudication.

Family court – Adherence to practice and procedureprescribed by the Statute – Held: Family Court is obliged to inquireinto the matter as per the procedure prescribed by law – It does notBhave plenary powers to do away with the mandatory proceduralrequirements in particular, which guarantee fairness andtransparency in the process to be followed and for adjudication ofclaims of both sides – Nature of inquiry before the Family Court isadjudicatory – It is obliged to resolve the rival claims of the partiesby adhering to the norms prescribed by the statue in that regardCand also the foundational principle of fairness of procedure andnatural justice – Natural justice.

Family court – Working of – Explained.

Practice and procedure: Abandonment of proceedings –DInference of – Held: There can be no legal presumption about thefactum of abandonment of proceedings – Abandonment has to beexpress or even if it is to be implied, the circumstances must be sostrong and convincing that drawing such inference is inevitable.

Disposing of the transferred case, the CourtE

EHELD: 1.1 The Family Court exceeded its jurisdiction byhastening the entire proceedings. Indubitably, the Family Courtis obliged to inquire into the matter as per the procedureprescribed by law. It does not have plenary powers to do awaywith the mandatory procedural requirements in particular, whichFguarantee fairness and transparency in the process to be followedand for adjudication of claims of both sides. The nature of inquirybefore the Family Court is, indeed, adjudicatory. It is obliged toresolve the rival claims of the parties and while doing so, it mustadhere to the norms prescribed by the statue in that regard andalso the foundational principle of fairness of procedure and naturalGjustice. [Para 27][1155-F-G]

1.2 The provisions of the CPC are made applicable forresolution of disputes falling under the 1984 Act. The FamilyCourt is deemed to be a Civil Court having all powers of suchCourt. Section 9, 14, 15 and 16 plainly reveal that the Family H

Court is expected to follow procedure known to law, which meansinsist for a formal pleading to be filed by both sides, then frameissues for determination, record evidence of the parties to provethe facts asserted by the concerned party and only thereafter, toenter upon determination and render decision thereon byrecording reasons for such decision. For doing this, the FamilyCourt is expected to give notice to the respective parties andprovide them sufficient time and opportunity to present theirclaim in the form of pleadings and evidence before determinationof the dispute. [Paras 28, 29][1156-A-B, G]

1.3 The appellant admittedly filed petition before the FamilyCourt under Section 7 of the 1890 Act read with Section 7(g) ofthe 1984 Act. Section 7 of the 1890 Act bestows power in theCourt to make order as to guardianship in respect of a minor.Such prayer can be made by anyone interested in the welfare ofthe 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 ofthe minor, is free to appoint the applicant as a guardian of personor property of the minor or both or merely declaring a person tobe such a guardian. Section 8 of the Act makes it amply clear asto who is entitled to apply for the order. Such application isrequired to be filed before the District Court having jurisdictionin the place where the minor ordinarily resides under Section 9of the 1890 Act. As regards procedure for such an application, itis delineated by providing for the form of application in Section10 of the Act, which must contain necessary information referredto therein. Section 11 prescribes for the procedure in the eventthe Court is satisfied that there is ground for proceeding on theapplication. That would require adducing of evidence beforemaking an order in terms of Section 13 of the 1890 Act. TheCourt is required to consider certain matters as specified inSection 17 of the 1890 Act and while making order, must alsobear in mind the exception provided in Section 19 as to whoshould not be appointed as guardian. Suffice it to observe thatboth the enactments (the 1984 Act and the 1890 Act), providefor procedure in the form of disclosures, declarations andassertions and its refutations by the other party opposing the AB

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Aclaim, whereafter the matter proceeds for recording of evidencefollowed by the declaration or order passed by the Court. Intrinsicin 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 invokingBprovisions of Section 7 of the 1890 Act read with Section 7(g) ofthe 1984 Act. Admittedly, no written statement was ever filed bythe respondent to oppose the said petition. On the other hand,the appellant took out two applications for amendment of thepleadings under Order VI Rule 17 of the CPC. No reply was filedby the respondent even to these applications, despite CourtCdirecting her to do so. There is nothing on record to indicate thatthe Family Court decided these two applications for amendmentof pleadings taken out by the appellant. Although the mainobjection alongwith two applications for amendment filed by theappellant remained pending from February, 2018, the respondentDnever filed response to the main petition or the amendmentapplications and instead took out application under Section 151of the CPC for being appointed the sole and absolute guardianand custodian of the minor child, on 13.9.2019. This applicationwas posted for hearing on 13.9.2019, on which date the Courtissued notice to the appellant and his counsel. As per that order,Ethe matter was again notified on 16.9.2019 when the counselappearing for the appellant requested the Court to discharge himfrom the case, which request was acceded to by the Court. As amatter of fact, before discharging the counsel, the Family Courtshould have ensured that notice was given to the appellant aboutFthe request made by his counsel including to make alternativearrangements, if he so desired. Admittedly, no such notice wasissued by the Family Court. That is reinforced from the orderdated 16.9.2019. It has been plainly noted that dasti noticesent to the appellant was still awaited. [Para 33][1157-G-H; 1158-A-E]G

1.5 Assuming that the Family Court could have allowed therequest of the counsel for the appellant to unilaterally takedischarge without giving notice to the appellant. However, afteraccepting that request, it was obligatory to issue notice to theappellant to inform about the order so passed and also callingH

upon the appellant to make necessary arrangements on the nextdate. The Family Court instead set down the main matter on19.9.2019 at 2.30 p.m. In terms of order dated 16.9.2019, theFamily Court additionally cancelled the already scheduledreturnable date of 30.10.2019, unilaterally. There is nothing onrecord 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 anotherapplication under Order I Rule 10 read with Order XXIII Rule1A of the CPC for being transposed as petitioner in theguardianship petition and to transpose appellant as respondenttherein, for the reasons stated in the application dated 18.9.2019.Admittedly, even copy of this application was not served on theappellant nor a formal notice came to be issued by the FamilyCourt on this application, when it was taken up for hearing on19.9.2019. The Family Court merely ordered to place the matteron 20.9.2019 at 1.00 p.m. The order dated 19.9.2019, makes noreference to the fact as to whether the notice sent to the appellantvide order dated 16.9.2019 had been duly served nor about thefiling of any affidavit of service effected on him. Once again, thereis no mention even in the order dated 20.09.2019 about serviceof the application under Section 151 of the CPC filed by therespondent, the application under Order I Rule 10 of the CPCread with Order XXIII Rule 1 read with Section 151 of the CPCfiled by the respondent, order dated 16.9.2019 and order issuingnotice on application under Order I Rule 10 on the appellant.Despite this, the Court proceeded on the assumption that theappellant had abandoned the proceedings. There can be no legalpresumption 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 drawingsuch 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 servedwith the applications filed by the respondent and that he was fullyaware about the discharge of the counsel representing him in theproceedings including about service of Court notices. Even ifthe Court was to infer abandonment, it could at best have AB

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Adismissed the petition for default in exercise of power underOrder 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 transpositionapplication filed by the respondent ex parte and that too withoutBensuring that it was duly served on the appellant consequent tonotice issued thereon by the Court. Admittedly, there is no officialCourt record to indicate that such service was effected on theappellant including that the Court had issued notice on thetransposition application. Arguendo, such transposition waspermissible but after allowing the transposition application exCparte, unless the cause title was amended and appropriatechanges/amendments made in the petition including partiesproducing evidence in support of their claim, the matter couldnot have proceeded for final determination. After such amendment,in any case, opportunity was required to be given to the appellantDby issuing Court notice so as to enable him to respond to theamended petition including to contest the same. The propositionthat transposition in guardianship proceeding is permissible, muchless permissible as a matter of course at the instance of the otherparent of the minor child is not accepted. [Para 36][1160-C-F]

E1.8 The appellant is justified in contending that theimpugned judgment and orders came to be passed by the FamilyCourt in a tearing hurry, may be because of the insistence of therespondent and her counsel to do so in light of the observationsmade by the High Court in habeas corpus and contempt mattersagainst the appellant. The conduct of the appellant frowned uponFby the High Court in the habeas corpus petition or contemptpetition, cannot be made the sole basis to determine the factumof fitness or otherwise of the appellant for being a guardian of theminor child. That fact has to be decided on its own merits takingall aspects into account including possibility of joint sharedGparenting arrangement and more particularly, child-centricapproach with paramount welfare and interest of the minor child.It is for that reason, even the High Court whilst disposing thehabeas corpus and contempt proceedings, had added a word ofcaution at the end of its judgment that guardianship petition orother proceedings between the parties must proceed on theirH

own merits in accordance with law, which observation has beencompletely 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 exparte impugned judgment and orders dated 21.9.2019 passed bythe Family Court on transposition application, as well as, on theapplication 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 on16.10.2019 by the Family Court, directing handing over custodyof the minor child within the time specified therein, is also setaside. As these orders are set aside, any action taken on thebasis of the said orders is to be regarded as non-est in law and isso declared hereunder. That does not mean that the custody ofthe minor child needs to be restored to the father (appellant)forthwith. That issue will have to be decided finally by the FamilyCourt in the proceedings remanded in terms of this order.[Para 42][1162-D-F]

1.10 By this order, remand and revival of the Guardianshippetition and also all applications filed in the main guardianshippetition by the appellant is directed. The two applications foramendment of petition filed by the appellant under Order VI Rule17 read with Section 151 CPC would be restored and revivedand be heard in the first place. As the appellant has alreadywithdrawn all proceedings between the parties pending in UAECourt, as recorded in connected matters pending in this Court,it is indicative of the fact that he intends to pursue the guardianshippetition to its logical end, and for that reason, the transpositionapplication under Order I Rule 10 read with Order XXIII Rule 1read with Section 151 of the CPC, filed by the respondent, needsto be dismissed. However, the application filed by the respondentunder Section 151 of CPC for declaring her to be the sole andabsolute guardian in place of the appellant is revived. That shallproceed before the Family Court on its own merits in accordancewith law. All contentions available to both sides including aboutits maintainability are left open to be decided by the Family Court.[Para 43][1162-F-H; 1163-A-B]

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A1.11 The respondent has taken U.S. citizenship for the minorchild and also U.S. passport in her name. In the context of thatgrievance, the respondent through counsel had assured that shewould not precipitate the said claim and is willing to surrenderthe same in this Court to avoid any misapprehension entertainedby the appellant. [Para 44][1163-C-D]

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Mamata Mayee Sahoo vs. Abinash Sahoo 2015 SCCOnline Ori 167; Someshwar Dayal vs. Anupama Dayal2016 SCC Online Del 458; Ruchi Majoo vs. SanjeevMajoo (2011) 6 SCC 479 : [2011] 7 SCR 674; SavithaSeetharam vs. Rajiv Vijayasarathy Rathnam 2020 (4)AKR 372; JK vs. NS 2019 SCC Online Del 9085;Tushar Vishnu Ubale vs. Archna Tushar Ubale AIR 2016Bom 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] 14SCR 961; Tejaswini Gaud & Ors. vs. Shekhar JagdishPrasad Tewari & Ors. (2019) 7 SCC 42:[2019] 7 SCR335; Vivek Singh vs. Romani Singh (2017) 3 SCC231:[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 Goelvs. State of Delhi & Anr. (2018) 9 SCC 578 : [2018] 11SCR 546; ABC vs. State (NCT of Delhi) (2015) 10 SCC1 : [2015] 8 SCR 422; Roxann Sharma vs. Arun Sharma(2015) 8 SCC 318 : [2015] 2 SCR 572; Sangram Singhvs. Electional Tribunal, Kotah & Anr. AIR 1955 SC425 : [1955] SCR 1; State of Punjab & Anr. vs. ShamlalMurari & Anr. (1976) 1 SCC 719 : [1976] 2 SCR 82 ;Rosy Jacob vs. Jacob A. Chakramakkal (1973) 1 SCC840 : [1973] 3 SCR 918; Gaurav Nagpal vs. SumedhaNagpal (2009) 1 SCC 42 : [2008] 16 SCR 396 –referred to.

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Child Access & Custody Guidelines alongwith ParentingPlan; Child Access & Custody Guidelines alongwithParenting Plan by Child Rights Foundation NGO, Mumbai, 2014; Law Commission of India Report No.257 – Reforms in Guardianship and Custody Laws inIndia (May, 2015) – referred to.

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Case Law Reference

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CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)No. 25 of 2021

From the Judgment and Order dated 29.07.2020 of the High Courtof Delhi at New Delhi in MAT Appeal (F.C.) No. 85 of 2020.

K.M. Natraj, ASG , Shyam Divan, Sr. Adv., Anil Malhotra, MukulKumar, Rupesh Kumar, Rajeev Sharma, Taubon Irani, Ms. NeelamSharma, Ms. Pankhuri Shrivastava, Alekshendra Sharma, PraveshBahuguna, Viresh B. Saharya, Akshat Agarwal, Ms. Malavika Rajkotia,Ms. Rytim Vohra, Sudipto Sircar, Ms. Ria Singh Sawhney, Lakshmi G

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ARaman Singh, Ashok Panigrahi, Ms. Shraddha Deshmukh, Nabab Singh,B.V. Balaram Das, Arvind Kumar Sharma, Ms. Indira Bhakar, SughoshSubramanyam, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant Dogra,Advs. for the appearing parties.

The Judgment of the Court was delivered byBA. M. KHANWILKAR, J.

1. The appellant[1] had filed MAT Appeal (F.C.) No. 85/2020 in theHigh Court of Delhi at New Delhi[2], which stood withdrawn andtransferred to this Court in light of other proceedings pending betweenthe parties in this Court involving overlapping issues, as per the consentCorder passed on 29.7.2020. That appeal, filed by the appellant is againstthe judgment and orders dated 21.9.2019 of the Principal Judge, FamilyCourt, Patiala House, New Delhi[3], whereby the application filed by therespondent[4] for transposing her as petitioner in the petition filed by theappellant declaring him as guardian of person of baby Raina and appointingDhim as her guardian, came to be allowed on the finding that the appellanthad abandoned the petition. On the same day, by a separate order, therespondent was appointed as sole, exclusive and absolute guardian andcustodian of minor child.

2. Both the parties have resorted to multiple proceedings againsteach other, essentially emanating from the discordant marital relationshipEbetween them. Besides the guardianship petition filed by the appellant,the respondent had filed habeas corpus petition on two occasions andbecause of non-compliance of the directions issued by the Court regardingcustody and visitation rights, both had to file contempt petition againsteach other. The appellant, as well as, his parents have also filed specialFleave petition(s) against the judgment of the High Court in habeas corpuspetition(s) and contempt petition(s).

3. As aforesaid, during the hearing of the said proceedings, partiesconsented to the transfer of first appeal [MAT Appeal (F.C.) No. 85/2020] pending before the High Court against the orders of the FamilyGCourt, dated 21.9.2019, which essentially involves issue regardingguardianship. Besides, a divorce petition is also pending between theparties.

1 husband of the respondent

2 for short, “the High Court”

3 for short, “the Family Court”

H4 wife of the appellant

4. Be that as it may, when the cases between the parties in thisCourt were listed for analogous hearing, it was deemed appropriate tofirst deal with the question of guardianship, to which suggestion, theparties favourably responded and have addressed the Court on all aspectsof that matter. Intriguingly, despite this Court vide order dated 29.7.2020had withdrawn the stated first appeal pending before the High Courtand transferred it to this Court, the High Court on 6.8.2020 in the veryappeal, even after taking note of the order dated 29.7.2020 passed bythis Court, proceeded to dispose of the appeal alongwith pendingapplications therein. That, obviously, could not have been done by theHigh Court. For, it had ceased to have jurisdiction to deal with the appealany further after the order of this Court dated 29.7.2020. Nevertheless,both parties advisedly argued the transferred case (appeal) on meritswithout reference to the order of the High Court, dated 6.8.2020.

5. As aforesaid, there are multiple proceedings pending betweenthe parties. But, in this judgment, we may confine to the basic facts foranswering the matter in issue before us regarding guardianship.

6. At the outset, we may note that for the nature of order that wepropose to pass in the present transferred case, it may not be necessaryfor 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) wasfiled by the appellant under Section 7 of the Guardians and Wards Act,1890[5]read with Section 7(g) of the Family Courts Act, 1984[6] on 9.2.2018on the assertion that the minor child was in his custody at the relevanttime. 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 babyRaina.

C.Any other relief this Hon’ble Court may deem fit andproper.”

Notice was issued on the said petition on 19.2.2018. Therespondent did not file written statement until August, 2018, when theappellant moved a formal application for amendment of the petition underOrder 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”

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A1908[7] and Section 10 of the 1984 Act to bring on record certain subsequentevents including regarding habeas corpus petition(s). This applicationwas filed by the appellant on 21.8.2018. There is nothing on record toindicate that the Family Court dealt with and disposed of this applicationbefore the impugned order came to be passed on 21.9.2019. The appellantfiled another application under Order VI Rule 17 read with Section 151Bof 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 tothis application. However, the respondent did not file reply even to thisapplication. In view of certain further developments, the appellant movedanother application before the Family Court on 20.2.2019 to place onCrecord copy of order dated 13.2.2019 passed by the High Court in CivilContempt Petition (CCP) No. 116/2019 against the respondent and forissuing further directions that because of the contemptuous conduct ofthe respondent, she should not be heard on any application until shepurges contempt. The Family Court, besides taking note of thatapplication, also recorded in its order dated 20.2.2019 that the applicationDfiled by the appellant under Order VI Rule 17 was still pending andnotified the same for hearing on 8.3.2019. When the matter was listedbefore the Family Court on 8.3.2019, the respondent without any priorintimation, started arguing application under Section 26 of the HinduMarriage Act, 1955[8] filed by her, despite the fact that the said applicationEwas not listed for argument on that date. What was listed on that daywere the four applications, namely, two applications under Order VIRule 17 of the CPC filed by the appellant, an application to take onrecord copy of High Court order dated 13.2.2019 in CCP No. 116/2019and the fourth one - filed by the respondent under Order VII Rule 11 fordismissal of the guardianship petition (G.P. No. 09/2018). However, allFthe four applications stood deferred on that day.

7. The respondent then filed an application under Section 151 ofthe CPC for declaring and appointing her to be the sole and absoluteguardian and custodian of the minor child. This application was filed bythe respondent on 13.9.2019. No notice was given to the appellant ofGthis application nor advance copy thereof was supplied to him personallyor his counsel. It had been averred in that application, that from theproceedings before the High Court appended to the application it wasamply clear that the appellant had proved himself to be unworthy, 7 for short, the “CPC”H8 for short, “the HMA”

AMAN LOHIA v. KIRAN LOHIA[A.M. KHANWILKAR, J.]

incapable and incompetent to act in the welfare of child and dischargeany parenting privilege whatsoever. In the wake of serious allegationsagainst the appellant, this application was ordered to be posted for hearingbefore the Family Court on 16.9.2019 at 2.00 p.m., as noted in the orderdated 13.9.2019, which reads thus: - “GP No. 09/2018Aman 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 CPCseeking appropriate directions filed on behalf of the respondent/applicant.

Let notice of the application be issued to thepetitioner/non-applicant and his counsel on filing of PF aswell 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 photocopyof the order of the Hon’ble High Court of Delhi dated 12.09.2019vide which the application for transfer of the case from this courtto some other court has been dismissed. Since now there is nobar or restraint for this court to proceed with the case notice hasbeen issued to the non-applicant/petitioner.”

In terms of the said order, the matter was notified on 16.9.2019when following order came to be passed: -

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 thepetitioner has been served with notice of the applications movedby ld. Counsel for the respondent for early hearing and issuanceof directions.

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SUPREME COURT REPORTS

ASh. Rajat Bhalla, Advocate who was appearing on behalfof the petitioner in the present petition and in HMA Bearing No.625/18 (new No. 663/18) states that since he has not receivedany instructions from his client, therefore, he seeks discharge fromthis case. He has also pointed out that he has made similar requestbefore the Hon’ble High Court of Delhi in same cases pendingBbetween the same parties and he was discharged in the samevide 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 toinform him that he should make alternative arrangements for acounsel as he is seeking discharge in this case. He states that heChad sent e-mails to the counsel for the respondent that he was nomore representing the petitioner Sh. Aman Lohia in any of thematters handled by him.

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Heard.

After hearing counsel for the petitioner and havinggone through the e-mails that he has sent to the petitionerand the copies of the orders of the Hon’ble High Court ofDelhi, he is discharged from this case.

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No one is present thus today on behalf of the petitioner.Notice was sent to him dasti and report on the same isEawaited.

Be listed on 19.9.2019 at 2.30 pm.

Earlier date given i.e. 30.10.2019 stands cancelled.”

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In the meantime, the respondent filed another application underOrder I Rule 10 and Order XXIII Rule 1A read with Section 151 of theCPC 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 claimedtherein read thus: - G

“PRAYER

In the above stated facts and circumstances, it is respectfullyprayed that this Hon’ble Court may be pleased to:

a. Transpose the Respondent as the Petitioner and the Petitioneras a Respondent in the present case.

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AMAN LOHIA v. KIRAN LOHIA[A.M. KHANWILKAR, J.]

b. Pass such other orders or directions as it may deem fit andproper in the interest of justice.”

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8. On 19.9.2019, the matter was listed before the Family Court,when the Court passed the following order: -

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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 underOrder 1 Rule 10 and Order 23 Rule 1 a r/w Section 151 CPC totranspose the respondent.

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Be listed for consideration on 20.09.2019 at 1.00 pm.”

(emphasis supplied)

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On 20.9.2019, when the matter was taken up, the Court recordedthe following order: -

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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 onapplications, one application under Order 1 Rule 10 and Order 23Rule 1a r/w Section 151 CPC and other application under Section151 CPC have been filed by the Ld. Counsel.

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Ld. Counsel for the respondent seeks time to file case law.

Be listed for orders on 21.09.2019.

Sd/-G

Swarna Kanta SharmaPrincipal Judge, Family CourtPatiala House Court, New Delhi 20.09.2019 (R)”

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AOnce again, the Court did not advert to the crucial aspects as towhether the application under consideration had been duly served uponthe appellant much less notice relating to application under Section 151of the CPC filed by the respondent, as also, the subsequent applicationfor transposition under Order I Rule 10.B9. Accordingly, on 21.9.2019, the matter was posted for hearingbefore 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 whichreason the respondent was entitled to be transposed as the petitioner inthe guardianship petition and seek declaration that she was the guardianCof the minor child. It is stated that no notice of the transposition application A

was ever served on the appellant nor was he given notice regardinghearing of the said application before the Court, despite the fact that hiscounsel had been discharged from the case and the appellant was notrepresented by any other counsel. On the same day, the Family CourtDthen 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 wasonly two and half years of age, to the appellant, was not advisable. Byvirtue of his conduct, he (appellant) had disentitled himself to be declaredas guardian of the minor child. After recording this finding, the CourtEproceeded to hold that in the paramount interest and welfare of thechild, the respondent mother needs to be declared as the sole, exclusiveand absolute guardian and custodian of the minor child.

10. Feeling aggrieved, the appellant approached the High Courtby way of MAT Appeal (F.C.) No. 85/2020 to challenge the aforesaidFjudgment and orders passed by the Family Court, dated 21.9.2019. Theappellant had raised diverse grounds to challenge the correctness of theview expressed by the Family Court including the manner in which theimpugned orders were passed, without giving fair opportunity to him andalso about failure to follow mandatory procedure. The impugned ordersGwere passed by the Family Court without following due process of lawand in breach of principles of natural justice, in the matters of discharginghis advocate and not issuing notice to the appellant even thereafter, callingupon him to make alternative arrangements, and more so in allowingtransposition of the respondent as petitioner and appellant as respondentand on the same day to declare her (respondent) as the sole, exclusiveHand absolute guardian and custodian of the minor child.

11. According to the appellant, the judgment under appeal is not ajudgment in terms of Section 17 of the 1984 Act. That the record of thecase makes it amply clear that the Family Court failed to adhere to theestablished practice and procedure to be followed for adjudicating thedisputes brought before it under the 1984 Act. That is evident from theorder dated 13.9.2019, which records that notice be issued to the appellantherein 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. RajatBhalla informed the Court that he intended to take discharge and hisapplication came to be allowed by the Court, no notice thereof wasgiven to the appellant. The order clearly records that dasti report regardingservice of notice sent to the appellant was still awaited. As a matter offact, 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 oforder dated 16.9.2019, again without notice to the appellant. Further, noaffidavit of service was filed on record indicating the factum of serviceof notice on the appellant regarding the application under Section 151 ofthe CPC filed by the respondent praying that she be declared as thesole, exclusive and absolute guardian and custodian of the minor child.Despite that, the Court proceeded with the matter on 19.9.2019, butbefore that date, another application came to be filed by the respondentfor transposing her as petitioner in the guardianship petition and appellantas respondent therein, for the reasons mentioned in the application dated18.9.2019. Even copy of this application was not served on the appellantand despite that, the Family Court proceeded therewith on 19.9.2019without recording the fact as to whether the appellant was duly servedwith the earlier application or the earlier notice; and yet chose to list thematter on the next day i.e., 20.9.2019 for consideration at 1.00 p.m. Inshort, it is urged that the record plainly speaks about the manner in whichthe Family Court proceeded to pass the orders on 21.9.2019, with tearinghurry at the behest of the respondent whilst completely disregarding themandatory procedure prescribed in the 1984 Act read with the provisionsof the CPC. It was a clear case of infraction of principles of naturaljustice. It is urged that it was not open to the Family Court to assume thefactum of appellant having abandoned the proceedings unless he hadappeared in Court to say so or had informed the Court in writing in thatregard. It is a question of fact and not a matter for deducing legalpresumption. Assuming that the Court was convinced that the appellantwas not pursuing the proceedings diligently or was creating obstructionin any manner, the Court, at best, could have dismissed the petition filed AB

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Aby the appellant on the ground of default or non-prosecution under OrderIX Rule 8 of the CPC. In any case, since the Court chose to proceedwith the transposition application ex parte against the appellant, it shouldhave clearly recorded that fact in its order and the reasons in supportthereof. Besides, after transposition of respondent as the petitioner inthe guardianship petition (G.P. No. 09/2018) filed by the appellant andBappellant as respondent therein, it was imperative for the Court to issuenotice to the appellant to file his response in the proceedings. As a matterof fact, in guardianship proceedings, the question of transposition doesnot arise. For, it is a substantive petition founded on cause of actionpersonal to the person claiming to be guardian of his own ward. Moreover,Cadmittedly, the respondent had never filed written statement to opposethe guardianship petition filed by the appellant much less reply to theapplication(s) for amendment of petition, which could be treated by theCourt as guardianship petition filed by the respondent herself. In eithercase, the Court was obliged to issue notice to the appellant and onlyafter service of notice, could have proceeded in the matter. If theDrespondent had any difficulty in effecting service of notice on the appellant,the Court could have allowed the respondent to serve the appellant throughsubstituted service under Order V of the CPC. Even that attempt wasnot made by the Court. Instead, it presumed that the appellant hadabandoned the proceedings. That approach is manifestly wrong. Hence,Ethe procedure followed by the Family Court until culmination ofproceedings into judgment and orders dated 21.9.2019, is vitiated in law.

12. The appellant is relying on dictum in Mamata Mayee Sahoovs. Abinash Sahoo[9], wherein the Orissa High Court took note of theprocedural compliances to be made by the Family Court. According toFthe appellant, the decision relied upon by the Family Court of Delhi HighCourt in Someshwar Dayal vs. Anupama Dayal[10], was inapposite. Itwas clearly distinguishable, as there was nothing on record to indicatethat the petitioner had expressly abandoned the proceedings or after dueopportunity, had committed default in any manner. The present caseindeed, was one of counsel appearing for the appellant having withdrawnGfrom the case. That does not mean that the appellant had abandoned theproceedings. It is urged that the application filed by the respondent underSection 151 of the CPC, in law, could not be regarded as a substantivepetition required to be filed under Section 25 of the 1890 Act for a 9 2015 SCC Online Ori 167H10 2016 SCC Online Del 4585

9 2015 SCC Online Ori 167H10 2016 SCC Online Del 4585

declaration/appointment as guardian. In any case, the Family Court wasunder obligation to insist for the written statement to be filed by therespondent including reply to the applications filed by the appellant underOrder VI Rule 17 of the CPC and then to frame issues on which thematter could proceed. Not only that, the Family Court was obliged torecord evidence before adjudicating the matters in issue and pronouncefinal declaration and judgment under Section 17 of the 1984 Act, whichobliges the Family Court to record a concise statement of the case, thepoint for determination, the decision thereon and the reasons for suchdecision. The Family Court in the guise of entertaining application underSection 151 of the CPC, cannot assume the plenary power of aconstitutional Court, but is obliged to decide the case as per the mandatoryprocedure prescribed in the concerned Act and/or the CPC, as the casemay be, for conduct of trial and inquiry. Strikingly, the Family Court,after pronouncing the impugned judgment and orders on 21.9.2019, uponan application filed by the respondent under Section 151 of the CPC,despite becoming functus officio, issued directions vide order dated16.10.2019 to the effect that the custody of the minor child be handedover to the respondent mother within specified time. It was matter ofrecord that the child was away from the jurisdiction of the Family Courtwhen the relevant orders came to be passed. In law, therefore, the FamilyCourt could not have exercised jurisdiction as noted in Ruchi Majoo vs.Sanjeev Majoo[11].

13. The appellant asserts that he is a loving, caring, concernedand affectionate father and the minor cannot be denied of all that merelybecause of events that unfolded during the pendency of habeas corpuspetition(s) or contempt petition(s) before the High Court. The centralconcern of the Court should be the paramount welfare and interest ofthe minor child. The approach of the Court in that regard ought to bechild-centric. The issue cannot be answered on the basis of claims andcounter claims of the warring parents, as to deny the child of parentageof her father because of other acts of commission and omission of thefather. To do so would, in effect, be punishing the minor child and deprivingher of the love and affection of her father. That must be eschewed. TheFamily Court in such proceedings is obliged to record a clear findingabout the unfitness or otherwise of the father to be a guardian. Thatmust be in the context of the child care and not other matters or worldlyactivities of father. As a matter of fact, contends the learned counsel, AB

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Athe most appropriate course would be to follow the joint shared parentingplan, in which the child would interact with both the parents in equalmeasure. Further, the paramount interest and welfare of the child is notlimited to being connected with father and mother, but even other familymembers from both sides for her well-being and holistic growth. That isvital in the context of child psychology and upbringing. As a matter ofBfact, during counselling, the respondent had accepted the fact thatbecause she is a working woman, the child can remain with thegrandparents, who were staying only few houses away, during the daytime on working days. The appellant had highlighted several aspectsabout the unfitness of the respondent to groom the child or devote enoughCtime and attention herself.14. Reliance has been placed on the dictum in Savitha Seetharamvs. Rajiv Vijayasarathy Rathnam[12], JK vs. NS[13], Tushar Vishnu Ubalevs. Archna Tushar Ubale[14], Law Commission of India Report No.257[15 ]and Child Access & Custody Guidelines alongwith ParentingPlan[16]. According to the appellant, joint custody or shared parentingDwould be in the “best interest and welfare of the child”. That wouldensure that every decision taken regarding the child is for fulfilment ofher basic rights and needs, identity, social well-being and physical,emotional and intellectual development. Reliance is placed on decisionin Lahari Sakhamuri vs. Sobhan Kodali[17], Ashish Ranjan vs.

EAnupma Tandon & Anr.[18], Tejaswini Gaud & Ors. vs. ShekharJagdish Prasad Tewari & Ors.[19], and Vivek Singh vs. RomaniSingh[20].15. It is urged that the respondent for reasons best known to her,precipitated the matter despite the pre-emptory directions given by thisCourt in connected proceedings between the parties, by taking U.S.Fnationality of the minor child and also obtained a Consular Report ofBirth 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)G15 Law Commission of India Report No. 257 – Reforms in Guardianship and CustodyLaws in India (May, 2015)

16 Child Access & Custody Guidelines alongwith Parenting Plan by Child RightsFoundation NGO, Mumbai, 201417 (2019) 7 SCC 311

18 (2010) 14 SCC 27419 (2019) 7 SCC 42H20 (2017) 3 SCC 231

The respondent herself is a U.S. citizen. Therefore, the appellantapprehends that the respondent has intention to remove the child awayfrom the jurisdiction of the Courts in India and permanently deny accessto him and his family members. Since the respondent has secured CRBAstatus on the basis of declaration given by the Family Court vide impugnedjudgment and orders, upon setting aside of that order, all consequentialclaims/benefits accrued or derived by the respondent on that basis, mustalso become non-est in the eyes of law.

16. As a matter of fact, in the Indian context, neither provisions ofthe 1984 Act nor the 1890 Act, envisage a declaration in favour of theparent to be the sole, exclusive and absolute guardian and custodian ofthe minor child. Such declaration has been intentionally obtained by therespondent from the Family Court to serve her ulterior purpose. Theappellant has taken us through other points to buttress the argument thatthe respondent is not a fit person for parental custody or guardianship ofthe minor child. The appellant has also relied on the observations inNithya Anand Raghavan vs. State (NCT of Delhi) & Anr.[21], PrateekGupta 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 fordeclaration of guardianship unless it is found in a given case that he isunfit in the context of parenting of the minor child or would act againstthe interest and welfare of the minor child, as the case may be. Accordingto the appellant, the father is a natural guardian. Irrespective of themother’s custody, the guardianship of the father cannot be divested inlaw. To buttress this contention, reliance is placed on Roxann Sharmavs. Arun Sharma[25]. It is contended that unless the father is declared asunfit, the relief of declaring him to be the guardian cannot be declined.The fact that the appellant had taken the child away from the jurisdictionof 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 statutoryoffence. Reliance has been placed on the Hague Convention on theCivil Aspects of International Child Abduction, dated 25.10.1980[26]

21 (2017) 8 SCC 45422 (2018) 2 SCC 30923 (2018) 9 SCC 57824 (2015) 10 SCC 125 (2015) 8 SCC 31826 for short, “the 1980 Hague Convention”

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Ato contend that issue of accession to the 1980 Hague Convention is stillunder consideration of the Government of India and interparental childabduction has not yet found any recognition in Indian law.

18. According to the appellant, the impugned judgment and orderscannot be sustained on any parameter and need to be set aside andBinstead, the guardianship petition (G.P. No. 09/2018) filed by the appellantbe made absolute in favour of the appellant.

19. The respondent has stoutly refuted the stand taken by theappellant. It is urged that the Family Court had no other option, but toproceed on the basis that the appellant had abandoned the proceedingsCbefore that Court. Merely because there is no express statementforthcoming from the appellant in the proceedings before the FamilyCourt, does not mean that he had not abandoned the proceedings beforethe Family Court by his conduct and other circumstances establishedfrom the record and so noted even by the High Court. The appellantDadmittedly filed proceedings in the UAE Court claiming himself to haveconverted to Islam. It is only when it became impossible for him tocontinue with those proceedings and his arrest became inevitable, hehad no other option, but to withdraw those proceedings and submit to thejurisdiction of this Court. Such a litigant cannot be shown any indulgencenor would deserve any sympathy. The appellant is required to dischargeEhigh burden of estoppel, in raising procedural deficiencies in the decision-making process by the Family Court. In any case, the facts and therecord would reveal that the appellant had full notice about the progressof the matter and the applications filed by the respondent, as is evidentfrom his email trail. It is urged that the appellant because of his conduct,Fhas denied himself of raising technical pleas about procedural lapsescommitted by the Family Court. The procedural justice is alwayssubservient to the substantive justice. It is urged that hyper technicalargument of the appellant regarding non-compliance of procedure bythe Family Court, needs to be negatived in light of the exposition inSangram Singh vs. Electional Tribunal, Kotah & Anr.[27], State ofGPunjab & Anr. vs. Shamlal Murari & Anr.[28 ]and Rosy Jacob vs. JacobA. Chakramakkal[29].

27 AIR 1955 SC 425 (paragraph 16)28 (1976) 1 SCC 719 (paragraph 8)H29 (1973) 1 SCC 840

20. In the alternative, it is submitted that there are strong reasonswhy the order passed by the Family Court needs to be upheld. For, theappellant not only converted himself to Islam but also indulged inmisadventure by abducting minor child and taking her away outside Indiaand obtained Dominica citizenship and Dominica passport for the minor.The mother being the natural guardian and the appellant havingmisconducted rendered himself to be unfit as guardian, the Family Courtjustly recognised the respondent as the sole guardian of the minor.

21. As regards the U.S. citizenship taken by the respondent of theminor child and U.S. passport, the respondent through counsel submitsthat she would surrender the same. That was taken by the respondent ingood faith and for the welfare of the minor child. It is urged that theFamily Court has done independent evaluation of the relevant factualmatrix before concluding that giving guardianship to the appellant fatherwould not be advisable and instead, the respondent was the fit person tobe appointed as sole, exclusive and absolute guardian and custodian ofthe minor child. That can be discerned from the discussion in paragraphs15, 17 to 28 of the impugned judgment. It is urged that the minor child isnot comfortable while in company of the appellant or his family members,whereas, she is being properly looked after by the respondent and herfamily members. Even though the respondent is a working woman beinga professional, she is conscious of her obligation towards the minor childand gives her best for the welfare and upbringing of her daughter. Thepresent arrangement of visitation permitted by this Court in the connectedproceedings to appellant can continue on same terms without disturbingthe decision of the Family Court declaring the respondent as the soleguardian of the minor. The respondent is willing to abide by any termsand conditions, as may be imposed by this Court to secure the welfareand interest of the minor child. The appellant having converted himselfto Islam for reasons best known to him, has disentitled himself fromacting as a guardian of the child who continues to remain Hindu.

22. Reliance is placed on Section 6 of the Hindu Minority andGuardianship Act, 1956[30]. As per the proviso therein, no person is entitledto act as the natural guardian of a minor under the provisions of Section6, if he has ceased to be a Hindu. There being a clear embargo bystatute coupled with the welfare of the minor child, the appellant is unfitfor a declaration sought by him. The appellant had indulged in abduction A

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Aof the minor child on two occasions, which has been frowned upon bythe High Court in habeas corpus proceedings and more particularly, incontempt 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 thoseproceedings are still pending before this Court. This Court ought toBexercise parens patriae jurisdiction, keeping in mind the paramountinterest of the minor child as observed in Gaurav Nagpal vs. SumedhaNagpal[31], especially because the appellant has acted against the welfareof the minor. Any other view would result in rewarding him for hismisconduct and misadventure including the disobedience of the directionsCissued by the High Court, by abducting the minor on two occasions, thefirst one when she was seven months old and the second when she wasonly two years old. The minor must have undergone traumatic experiencebecause of such abduction and taking her away to foreign countrycompletely blocking out from her mother (respondent). This is not acase of over-zealous emotional father, who loves his child, but is aDrevengeful father who hates his wife (mother of minor child), muchmore than his proclaimed love for his child. The appellant is unfit as amodel parent and does not have moral values of an upstanding citizenwho respects the law and cares about the people around him.

23. Reliance has been placed on the pleadings filed by the appellant,Ewherein he had gone to the extent of showing distrust in the judicialsystem of this country and had converted himself to Islam only to ensurethat the custody of the child remains with him. He did not stop at that,but also fraudulently obtained passport for the minor child from theDominica when her Indian passport was in custody of the High Court.FHe devised a legal stratagem of using Indian legal system, as well as,the Courts in UAE for achieving his immoral plan of retaining custody ofthe minor child with him and to completely deny the respondent of anyaccess or interaction whatsoever with the minor child. The appellanthad approached the Court of equity and having misconducted himselfand abused the judicial process, is not entitled for any relief whatsoever.GIt is urged that by now, it is well established that “maternal preferencerule” 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 minordaughter. Reliance is placed on dictum in ABC (supra) in support of thisproposition. According to the respondent, there is an ongoing risk ofH31 (2009) 1 SCC 42

third kidnapping or attempt in that behalf by the appellant. The appellantis a flight risk and cannot be pinned down in the event he manages toescape with the minor child. To safeguard the interest of the minor childin appropriate way and to ensure that she is not denied of the motherlylove of the respondent and her family members as well, it will be just andproper to uphold the decision of the Family Court. Further, there is nomerit in the argument of the appellant that because of stated procedurallapses committed by the Family Court, the matter needs to proceed afreshbefore the Family Court. That would be a futile exercise because theconduct of the appellant all throughout has disentitled him for beingdeclared as a fit person for being the guardian of minor child.

24. Our attention was drawn to various documents to support theargument about the manner in which the appellant had misconductedwith her (respondent) including disobeying the directions issued by theHigh Court and resultantly, caused immense tension and stress to theminor child of such a tender age, because of her abduction on twooccasions. According to the respondent, the appeal filed by the appellantquestioning the impugned judgment and orders passed by the FamilyCourt does not merit any interference and the same be dismissed.

25. We have heard Mr. Anil Malhotra, learned counsel for theappellant and Mr. Shyam Divan, learned senior counsel for the respondent.

26. After cogitating over the rival submissions, in our consideredopinion, it may not be appropriate for us to delve into the factual matrixof the case, especially regarding the conduct of the parties as alleged bythem against each other, for the nature of order that we propose to pass.

27. We are more than convinced that the Family Court, in thepresent case, exceeded its jurisdiction by hastening the entire proceedings.Indubitably, the Family Court is obliged to inquire into the matter as perthe procedure prescribed by law. It does not have plenary powers to doaway with the mandatory procedural requirements in particular, whichguarantee fairness and transparency in the process to be followed andfor adjudication of claims of both sides. The nature of inquiry before theFamily Court is, indeed, adjudicatory. It is obliged to resolve the rivalclaims of the parties and while doing so, it must adhere to the normsprescribed by the statue in that regard and also the foundational principleof fairness of procedure and natural justice.

28. The Family Courts came to be established under the 1984Act. Section 7 specifies the jurisdiction of the Family Court and about A

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Athe nature of claims to be adjudicated by it in the form of suits andproceedings delineated in the explanation in sub-section (1). Section 10predicates about the procedure generally. The provisions of the CPCare made applicable for resolution of disputes falling under the 1984Act. The Family Court is deemed to be a Civil Court having all powersof such Court. Consequent to bestowing such power on the Family Court,Bcomes with it a primary duty to make efforts for settlement, as prescribedunder Section 9. If that does not happen, during the resolution of disputesbetween the parties, the Family Court then has to bear in mind theprinciples enunciated in the Indian Evidence Act, 1872, which had beenmade applicable in terms of Section 14 of the 1984 Act. A Family CourtCcan receive as evidence any report, statement, documents, informationor 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 underthe Indian Evidence Act, 1872. There is another provision, which givesinsight 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 evidenceDof witnesses at length, but the Judge, as the examination of each witnessproceeds, shall, record or cause to be recorded, a memorandum of thesubstance of what the witness deposes, and such memorandum shall besigned by the witness and the Judge and shall form part of the record.An incidental provision regarding efficacy of recording of evidence canEbe traced to Section 16 of the 1984 Act. That envisages that evidence ofany person where such evidence is of a formal character, may be givenby affidavit and may, subject to all just exceptions, be read in evidence inany suit or proceeding before a Family Court.

29. These provisions plainly reveal that the Family Court is expectedFto follow procedure known to law, which means insist for a formal pleadingto be filed by both sides, then frame issues for determination, recordevidence of the parties to prove the facts asserted by the concernedparty and only thereafter, to enter upon determination and render decisionthereon by recording reasons for such decision. For doing this, the FamilyCourt is expected to give notice to the respective parties and provideGthem sufficient time and opportunity to present their claim in the form ofpleadings and evidence before determination of the dispute.

30. We may usefully refer to the provisions of the 1890 Act, asinvoked by the appellant by filing petition before the Family Court. Theappellant admittedly filed petition before the Family Court under SectionH7 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 guardianshipin respect of a minor. Such prayer can be made by anyone interested inthe welfare of the minor and “not limited to the father and mother of theminor”. In this inquiry, the Court, if so satisfied that it is for the welfareof the minor, is free to appoint the applicant as a guardian of person orproperty of the minor or both or merely declaring a person to be such aguardian. Section 8 of the Act makes it amply clear as to who is entitledto apply for the order. It has specified four categories of persons. First isperson desirous of being the guardian of the minor. The second is anyrelative or friend of the minor. The third is the Collector of the district orother local area within which the minor ordinarily resides and the fourthis the Collector having authority with respect to the class to which theminor belongs. Such application is required to be filed before the DistrictCourt having jurisdiction in the place where the minor ordinarily residesunder Section 9 of the 1890 Act. As regards procedure for such anapplication, it is delineated by providing for the form of application inSection 10 of the Act, which must contain necessary information referredto therein. Section 11 prescribes for the procedure in the event the Courtis satisfied that there is ground for proceeding on the application. Thatwould require adducing of evidence before making an order in terms ofSection 13 of the 1890 Act. The Court is required to consider certainmatters as specified in Section 17 of the 1890 Act and while makingorder, must also bear in mind the exception provided in Section 19 as towho should not be appointed as guardian.

31. Suffice it to observe that both the enactments (the 1984 Actand the 1890 Act), provide for procedure in the form of disclosures,declarations and assertions and its refutations by the other party opposingthe claim, whereafter the matter proceeds for recording of evidencefollowed by the declaration or order passed by the Court. Intrinsic in allthese steps is to guarantee fair opportunity to all concerned.

32. The question, therefore, that needs to be answered in light ofthe grievance made by the appellant is: whether the Family Court in thepresent 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 byinvoking 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 therespondent to oppose the said petition. On the other hand, the appellant A

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Atook out two applications for amendment of the pleadings under OrderVI Rule 17 of the CPC. No reply was filed by the respondent even tothese applications, despite Court directing her to do so vide order dated4.10.2018. There is nothing on record to indicate that the Family Courtdecided these two applications for amendment of pleadings taken out bythe appellant. Although the main objection alongwith two applicationsBfor amendment filed by the appellant remained pending from February,2018, the respondent never filed response to the main petition or theamendment applications and instead took out application under Section151 of the CPC for being appointed the sole and absolute guardian andcustodian of the minor child, on 13.9.2019. This application was postedCfor hearing on 13.9.2019, on which date the Court issued notice to theappellant and his counsel. As per that order, the matter was again notifiedon 16.9.2019 when the counsel appearing for the appellant – Mr. RajatBhalla requested the Court to discharge him from the case, which requestwas acceded to by the Court. As a matter of fact, before dischargingthe counsel, the Family Court should have ensured that notice was givenDto the appellant about the request made by his counsel including to makealternative arrangements, if he so desired. Admittedly, no such noticewas issued by the Family Court. That is reinforced from the order dated16.9.2019 reproduced in paragraph 7 above. It has been plainly notedthat dasti notice sent to the appellant was still awaited.E34. Assuming that the Family Court could have allowed the requestof the counsel for the appellant to unilaterally take discharge withoutgiving notice to the appellant. However, after accepting that request, itwas obligatory to issue notice to the appellant to inform about the orderso passed and also calling upon the appellant to make necessaryFarrangements on the next date. The Family Court instead set down themain 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 returnabledate of 30.10.2019, unilaterally. There is nothing on record to show thatthe respondent had made such a request.

35. What is more striking, is that, before 19.9.2019, the respondentGtook out another application under Order I Rule 10 read with OrderXXIII Rule 1A of the CPC for being transposed as petitioner in theguardianship 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 aHformal 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 merelyordered to place the matter on 20.9.2019 at 1.00 p.m. The order dated19.9.2019 (in paragraph 8 above), makes no reference to the fact as towhether the notice sent to the appellant vide order dated 16.9.2019 hadbeen duly served nor about the filing of any affidavit of service effectedon him. Be that as it may, when the matter was listed on 20.9.2019, theCourt after hearing the learned counsel for the respondent passed thefollowing order (also reproduced in paragraph 8 above): -

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 onapplications, one application under Order 1 Rule 10 and Order 23Rule 1a r/w Section 151 CPC and other application under Section151 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

Arguments

Principal Judge, Family CourtPatiala House Court, New Delhi 20.09.2019 (R)”

Once again, there is no mention even in this order about serviceof (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 OrderXXIII 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 applicationunder Order I Rule 10 on the appellant. Despite this, the Court proceededon the assumption that the appellant had abandoned the proceedings.There can be no legal presumption about the factum of abandonment ofproceedings. The abandonment has to be express or even if it is to be A

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Aimplied, the circumstances must be so strong and convincing that drawingsuch inference is inevitable. Rather, no other view is possible. For that,the Court ought to have adverted to the material/evidence indicating thatthe appellant/petitioner was duly served with the applications filed bythe respondent and that he was fully aware about the discharge of thecounsel representing him in the proceedings including about service ofBCourt notices. Even if the Court was to infer abandonment, it could atbest have dismissed the petition for default in exercise of power underOrder IX Rule 8 of the CPC.

36. Further, the Court could not have entertained the transpositionapplication filed by the respondent ex parte and that too without ensuringCthat it was duly served on the appellant consequent to notice issuedthereon by the Court. Admittedly, there is no official Court record toindicate that such service was effected on the appellant including thatthe Court had issued notice on the transposition application. Arguendo,such transposition was permissible but after allowing the transpositionDapplication ex parte, unless the cause title was amended and appropriatechanges/amendments made in the petition including parties producingevidence in support of their claim, the matter could not have proceededfor final determination. After such amendment, in any case, opportunitywas required to be given to the appellant by issuing Court notice so as toenable him to respond to the amended petition including to contest theEsame. We may not be understood to have accepted the proposition thattransposition in guardianship proceeding is permissible, much lesspermissible as a matter of course at the instance of the other parent ofthe minor child. We leave that question open.

37. In Sangram Singh (supra), this Court in paragraph 16 observedFthat procedure is something designed to facilitate justice and further itsends – not a penal enactment for punishment and penalties; not a thingdesigned to trip people up. Further, too technical a construction of sectionsthat leaves no room for reasonable elasticity of interpretation shouldtherefore be guarded against (provided always that justice is done toGboth sides) lest the very means designed for the furtherance of justicebe used to frustrate it. These observations are contextual and have noapplication to the case where there is no semblance of procedure followedby the Family Court and the entire matter is disposed of in a short spanof less than eight days after filing of an application (on 13.9.2019) by therespondent under Section 151 of the CPC for declaring her to be theH

sole, exclusive and absolute guardian and custodian of the minor childincluding the transposition application under Order I Rule 10 (filed on18.9.2019) and culmination of the proceedings in favour of the respondenton 21.9.2019 vide impugned judgment and orders, that too without noticeto the appellant nor waiting for service of notice already issued on theformer application. This is substantial non-compliance of the prescribedmandatory procedure and infraction of principles of natural justice, not atechnical 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 Courtopined that every minor detail in that rule cannot carry a compulsory orimperative import. On that finding, the Court construed the said rule asdirectory and not having the effect of vitiating proceedings as in thepresent case, both on account of non-compliance of statutory proceduralsafeguards and in violation of principles of natural justice.

39. Reliance was then placed on Rosy Jacob (supra). In thatcase, the Court dealt with proceedings under Section 25 of the 1890 Actand in the fact situation of that case, noted that the guardian Court incase of a dispute between the mother and the father is expected tostrike a just and proper balance between the requirements of welfare ofthe minor children and the rights of their respective parents over them.This issue may have to be debated in the remanded proceedings. We donot wish to dilate on this aspect.

40. Suffice it to observe that the appellant is justified in contendingthat the impugned judgment and orders came to be passed by the FamilyCourt in a tearing hurry, may be because of the insistence of therespondent and her counsel to do so in light of the observations made bythe High Court in habeas corpus and contempt matters against theappellant. The impugned judgment does make reference to those orders.We may hasten to add that the conduct of the appellant frowned uponby the High Court in the habeas corpus petition or contempt petition,cannot be made the sole basis to determine the factum of fitness orotherwise of the appellant for being a guardian of the minor child. Thatfact has to be decided on its own merits taking all aspects into accountincluding possibility of joint shared parenting arrangement and moreparticularly, child-centric approach with paramount welfare and interestof the minor child. It is for that reason, even the High Court whilstdisposing the habeas corpus and contempt proceedings, had added a AB

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Aword of caution at the end of its judgment that guardianship petition orother proceedings between the parties must proceed on their own meritsin accordance with law, which observation has been completely glossedover by the Family Court in the present case.

41. We have chosen not to dilate on other aspects or reportedBdecisions brought to our notice by both sides including about the conductof parties as alleged by each of them against the other. Nor it is necessaryfor us to examine the necessity of exploring the possibility of joint sharedparenting plan, to assuage the psychological barriers likely to beencountered by the minor child of tender age and more particularly, forher holistic development, welfare and paramount interest. Those areCmatters which the Family Court ought to examine after giving dueopportunity to both sides on their own merits and in accordance withlaw.

42. A priori, we have no hesitation in setting aside the ex parteimpugned judgment and orders dated 21.9.2019 passed by the FamilyDCourt on transposition application, as well as, on the application fordeclaration that the respondent is the sole, exclusive and absolute guardianand custodian of the minor child. For the same reasons, the purportedfollow up order passed on 16.10.2019 by the Family Court, directinghanding over custody of the minor child within the time specified therein,Eis also set aside. As these orders are set aside, any action taken on thebasis of the aforesaid orders is to be regarded as non-est in law and isso declared hereunder. That does not mean that the custody of the minorchild needs to be restored to the father (appellant) forthwith. That issuewill have to be decided finally by the Family Court in the proceedingsremanded in terms of this order.F

43. By this order, we direct remand and revival of the Guardianshippetition (G.P. No. 09/2018) and also all applications filed in the mainguardianship petition by the appellant. In other words, the two applicationsfor amendment of petition filed by the appellant under Order VI Rule 17read with Section 151 of the CPC shall stand restored and revived andGbe heard in the first place. Similarly, the other applications filed by theappellant to bring on record subsequent events/documents be also decidedfirst. As the appellant has already withdrawn all proceedings betweenthe parties pending in UAE Court, as recorded in connected matterspending in this Court, it is indicative of the fact that he intends to pursueHthe guardianship petition to its logical end, and for that reason, the transposition application under Order I Rule 10 read with Order XXIIIRule 1 read with Section 151 of the CPC, filed by the respondent, needsto be dismissed. We, however, revive the application filed by therespondent under Section 151 of CPC for declaring her to be the soleand absolute guardian in place of the appellant. That shall proceed beforethe Family Court on its own merits in accordance with law. All contentionsavailable to both sides including about its maintainability are left open tobe decided by the Family Court in accordance with law.

44. It was brought to our notice that the respondent has takenU.S. citizenship for the minor child and also U.S. passport in her name.In the context of that grievance, the respondent through counsel hadassured that she will not precipitate the said claim and is willing tosurrender the same in this Court to avoid any misapprehension entertainedby the appellant. The respondent may do so within two weeks fromtoday. At the same time, we direct the respondent not to travel with theminor child outside Delhi or abroad without prior permission of this Courtto 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 accordinglydisposed of. No order as to costs. All pending applications in this caseare disposed of.

Nidhi Jain

Transferred case disposed of.

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