Aman Lohia vs Kiran Lohia on 17 March, 2021


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Supreme Court of India

Aman Lohia vs Kiran Lohia on 17 March, 2021

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Dinesh Maheshwari, Krishna Murari

                                                                       REPORTABLE

                                 IN THE SUPREME COURT OF INDIA

                                   CIVIL ORIGINAL JURISDICTION

                            TRANSFERRED CASE (CIVIL) NO. 25 OF 2021



          AMAN LOHIA                                            ...APPELLANT

                                               Versus

          KIRAN LOHIA                                          ...RESPONDENT




                                          JUDGMENT

A.M. Khanwilkar, J.

1. The appellant1 had filed MAT Appeal (F.C.) No. 85/2020 in

the High Court of Delhi at New Delhi 2, which stood withdrawn

and transferred to this Court in light of other proceedings

pending between the parties in this Court involving overlapping

issues, as per the consent order passed on 29.7.2020. That

appeal, filed by the appellant is against the judgment and orders

dated 21.9.2019 of the Principal Judge, Family Court, Patiala
Signature Not Verified

Digitally signed by
DEEPAK SINGH
Date: 2021.03.17
14:14:30 IST
Reason:

1 husband of the respondent
2 for short, “the High Court”
1
House, New Delhi3, whereby the application filed by the

respondent4 for transposing her as petitioner in the petition filed

by the appellant declaring him as guardian of person of baby

Raina and appointing him as her guardian, came to be allowed

on the finding that the appellant had abandoned the petition. On

the same day, by a separate order, the respondent was appointed

as sole, exclusive and absolute guardian and custodian of minor

child.

2. Both the parties have resorted to multiple proceedings

against each other, essentially emanating from the discordant

marital relationship between them. Besides the guardianship

petition filed by the appellant, the respondent had filed habeas

corpus petition on two occasions and because of non­compliance

of the directions issued by the Court regarding custody and

visitation rights, both had to file contempt petition against each

other. The appellant, as well as, his parents have also filed

special leave petition(s) against the judgment of the High Court in

habeas corpus petition(s) and contempt petition(s).

3. As aforesaid, during the hearing of the said proceedings,

parties consented to the transfer of first appeal [MAT Appeal
3 for short, “the Family Court”
4 wife of the appellant
2
(F.C.) No. 85/2020] pending before the High Court against the

orders of the Family Court, dated 21.9.2019, which essentially

involves issue regarding guardianship. Besides, a divorce

petition is also pending between the parties.

4. Be that as it may, when the cases between the parties in

this Court were listed for analogous hearing, it was deemed

appropriate to first deal with the question of guardianship, to

which suggestion, the parties favourably responded and have

addressed the Court on all aspects of that matter. Intriguingly,

despite this Court vide order dated 29.7.2020 had withdrawn the

stated first appeal pending before the High Court and transferred

it to this Court, the High Court on 6.8.2020 in the very appeal,

even after taking note of the order dated 29.7.2020 passed by

this Court, proceeded to dispose of the appeal alongwith pending

applications therein. That, obviously, could not have been done

by the High Court. For, it had ceased to have jurisdiction to deal

with the appeal any further after the order of this Court dated

29.7.2020. Nevertheless, both parties advisedly argued the

transferred case (appeal) on merits without reference to the order

of the High Court, dated 6.8.2020.

3

5. As aforesaid, there are multiple proceedings pending

between the parties. But, in this judgment, we may confine to

the basic facts for answering the matter in issue before us

regarding guardianship.

6. At the outset, we may note that for the nature of order that

we propose to pass in the present transferred case, it may not be

necessary for us to advert to all the factual matters pointed out

by both sides. Suffice it to note that the guardianship petition

(G.P. No. 09/2018) was filed by the appellant under Section 7 of

the Guardians and Wards Act, 18905 read with Section 7(g) of the

Family Courts Act, 19846 on 9.2.2018 on the assertion that the

minor child was in his custody at the relevant time. The

appellant had prayed for following reliefs: ­

“A. To declare petitioner as guardian of person of baby
Raina.

B. Appointing the petitioner as guardian of person of
baby Raina.

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

Notice was issued on the said petition on 19.2.2018. The

respondent did not file written statement until August, 2018,
5 for short, “the 1890 Act”
6 for short, “the 1984 Act”
4
when the appellant moved a formal application for amendment of

the petition under Order VI Rule 17 read with Section 151 of the

Code of Civil Procedure, 19087 and Section 10 of the 1984 Act to

bring on record certain subsequent events including regarding

habeas corpus petition(s). This application was filed by the

appellant on 21.8.2018. There is nothing on record to indicate

that the Family Court dealt with and disposed of this application

before the impugned order came to be passed on 21.9.2019. The

appellant filed another application under Order VI Rule 17 read

with Section 151 of the CPC and Section 10 of the 1984 Act for

amendment of the petition, on 4.10.2018. The Family Court

directed the respondent to file reply to this application. However,

the respondent did not file reply even to this application. In view

of certain further developments, the appellant moved another

application before the Family Court on 20.2.2019 to place on

record copy of order dated 13.2.2019 passed by the High Court in

Civil Contempt Petition (CCP) No. 116/2019 against the

respondent and for issuing further directions that because of the

contemptuous conduct of the respondent, she should not be

heard on any application until she purges contempt. The Family

7 for short, the “CPC”
5
Court, besides taking note of that application, also recorded in its

order dated 20.2.2019 that the application filed by the appellant

under Order VI Rule 17 was still pending and notified the same

for hearing on 8.3.2019. When the matter was listed before the

Family Court on 8.3.2019, the respondent without any prior

intimation, started arguing application under Section 26 of the

Hindu Marriage Act, 19558 filed by her, despite the fact that the

said application was not listed for argument on that date. What

was listed on that day were the four applications, namely, two

applications under Order VI Rule 17 of the CPC filed by the

appellant, an application to take on record copy of High Court

order dated 13.2.2019 in CCP No. 116/2019 and the fourth one ­

filed by the respondent under Order VII Rule 11 for dismissal of

the guardianship petition (G.P. No. 09/2018). However, all the

four applications stood deferred on that day.

7. The respondent then filed an application under Section 151

of the CPC for declaring and appointing her to be the sole and

absolute guardian and custodian of the minor child. This

application was filed by the respondent on 13.9.2019. No notice

was given to the appellant of this application nor advance copy

8 for short, “the HMA”
6
thereof was supplied to him personally or his counsel. It had

been averred in that application, that from the proceedings before

the High Court appended to the application it was amply clear

that the appellant had proved himself to be unworthy, incapable

and incompetent to act in the welfare of child and discharge any

parenting privilege whatsoever. In the wake of serious allegations

against the appellant, this application was ordered to be posted

for hearing before the Family Court on 16.9.2019 at 2.00 p.m., as

noted in the order dated 13.9.2019, which reads thus: ­

“GP No. 09/2018
Aman Lohia vs. Kiran Lohia

13.09.2019
Present: Ms. Rytim Vohra, Ld. Counsel for the
respondent/ applicant.

File taken up today on application under Section 151
CPC seeking appropriate directions filed on behalf of the
respondent/applicant.

Let notice of the application be issued to the
petitioner/non­applicant and his counsel on filing of
PF as well as through E­mail as per law. Process be
given dasti.

Be listed on 16.09.2019 at 2.00 pm.
Ld. Counsel for the petitioner has filed on record
photocopy of the order of the Hon’ble High Court of Delhi
dated 12.09.2019 vide which the application for transfer
of the case from this court to some other court has been
dismissed. Since now there is no bar or restraint for this
court to proceed with the case notice has been issued to
the non­applicant/petitioner.”
(emphasis supplied)

7
In terms of the said order, the matter was notified on 16.9.2019

when following order came to be passed: ­

“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia

16.9.2019
Present: Sh. Rajat Bhalla, Ld. Counsel for the petitioner.

Ld. Proxy Counsel for the respondent.

File taken up today as Sh. Rajat Bhalla, Ld. Counsel
for the petitioner has been served with notice of the
applications moved by ld. Counsel for the respondent for
early hearing and issuance of directions.

Sh. Rajat Bhalla, Advocate who was appearing on
behalf of the petitioner in the present petition and in HMA
Bearing No. 625/18 (new No. 663/18) states that since he
has not received any instructions from his client,
therefore, he seeks discharge from this case. He has also
pointed out that he has made similar request before the
Hon’ble High Court of Delhi in same cases pending
between the same parties and he was discharged in the
same vide order dated 12.9.2019. He also states that he
had written e­mail to his client and had tried other modes
of service also to inform him that he should make
alternative arrangements for a counsel as he is seeking
discharge in this case. He states that he had sent e­mails
to the counsel for the respondent that he was no more
representing the petitioner Sh. Aman Lohia in any of the
matters handled by him.

Heard.

After hearing counsel for the petitioner and having
gone through the e­mails that he has sent to the
petitioner and the copies of the orders of the Hon’ble
High Court of Delhi, he is discharged from this case.
No one is present thus today on behalf of the
petitioner. Notice was sent to him dasti and report on
the same is awaited.

          Be listed on 19.9.2019 at 2.30 pm.
         Earlier   date     given    i.e.   30.10.2019     stands
       cancelled.”
                                               (emphasis supplied)


                                    8

In the meantime, the respondent filed another application under

Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of

the CPC to transpose her as the petitioner in the guardianship

petition (G.P. No. 09/2018). This application was filed on

18.9.2019. The reliefs claimed therein read thus: ­

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

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

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

8. On 19.9.2019, the matter was listed before the Family

Court, when the Court passed the following order: ­

“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia

19.09.2019
Present: None for petitioner.

Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.

Ld. Counsel for the respondent has filed an
application under Order 1 Rule 10 and Order 23 Rule
1 a r/w Section 151 CPC to transpose the respondent.

Be listed for consideration on 20.09.2019 at
1.00 pm.”
(emphasis supplied)

On 20.9.2019, when the matter was taken up, the Court

recorded the following order: ­

9
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia

20.09.2019
Present: None for petitioner.

Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.

Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.

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

Be listed for orders on 21.09.2019.

Sd/­
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”

Once again, the Court did not advert to the crucial aspects as to

whether the application under consideration had been duly

served upon the appellant much less notice relating to

application under Section 151 of the CPC filed by the respondent,

as also, the subsequent application for transposition under Order

I Rule 10.

9. Accordingly, on 21.9.2019, the matter was posted for

hearing before the Family Court when two separate orders came

to be passed. The first order was that despite knowledge about

the pending proceedings, the appellant had abandoned and

10
withdrawn from the case for which reason the respondent was

entitled to be transposed as the petitioner in the guardianship

petition and seek declaration that she was the guardian of the

minor child. It is stated that no notice of the transposition

application was ever served on the appellant nor was he given

notice regarding hearing of the said application before the Court,

despite the fact that his counsel had been discharged from the

case and the appellant was not represented by any other counsel.

On the same day, the Family Court then proceeded to decide the

main guardianship petition (G.P. No. 09/2018). After recording

the material facts pointed out by the respondent, it proceeded to

hold that giving guardianship of the minor child, who was only

two and half years of age, to the appellant, was not advisable. By

virtue of his conduct, he (appellant) had disentitled himself to be

declared as guardian of the minor child. After recording this

finding, the Court proceeded to hold that in the paramount

interest and welfare of the child, the respondent mother needs to

be declared as the sole, exclusive and absolute guardian and

custodian of the minor child.

11

10. Feeling aggrieved, the appellant approached the High Court

by way of MAT Appeal (F.C.) No. 85/2020 to challenge the

aforesaid judgment and orders passed by the Family Court, dated

21.9.2019. The appellant had raised diverse grounds to

challenge the correctness of the view expressed by the Family

Court including the manner in which the impugned orders were

passed, without giving fair opportunity to him and also about

failure to follow mandatory procedure. The impugned orders

were passed by the Family Court without following due process of

law and in breach of principles of natural justice, in the matters

of discharging his advocate and not issuing notice to the

appellant even thereafter, calling upon him to make alternative

arrangements, and moreso in allowing transposition of the

respondent as petitioner and appellant as respondent and on the

same day to declare her (respondent) as the sole, exclusive and

absolute guardian and custodian of the minor child.

11. According to the appellant, the judgment under appeal is

not a judgment in terms of Section 17 of the 1984 Act. That the

12
record of the case makes it amply clear that the Family Court

failed to adhere to the established practice and procedure to be

followed for adjudicating the disputes brought before it under the

1984 Act. That is evident from the order dated 13.9.2019, which

records that notice be issued to the appellant herein and his

counsel returnable on 16.9.2019. at 2.00 p.m. However, on

16.9.2019, when the counsel appearing for the appellant – Mr.

Rajat Bhalla informed the Court that he intended to take

discharge and his application came to be allowed by the Court,

no notice thereof was given to the appellant. The order clearly

records that dasti report regarding service of notice sent to the

appellant was still awaited. As a matter of fact, on an earlier

date, the Court had posted the matter for 30.10.2019, which date

stood unilaterally cancelled by the Family Court in terms of order

dated 16.9.2019, again without notice to the appellant. Further,

no affidavit of service was filed on record indicating the factum of

service of notice on the appellant regarding the application under

Section 151 of the CPC filed by the respondent praying that she

be declared as the sole, exclusive and absolute guardian and

custodian of the minor child. Despite that, the Court proceeded
13
with the matter on 19.9.2019, but before that date, another

application came to be filed by the respondent for transposing

her as petitioner in the guardianship petition and appellant as

respondent therein, for the reasons mentioned in the application

dated 18.9.2019. Even copy of this application was not served on

the appellant and despite that, the Family Court proceeded

therewith on 19.9.2019 without recording the fact as to whether

the appellant was duly served with the earlier application or the

earlier notice; and yet chose to list the matter on the next day

i.e., 20.9.2019 for consideration at 1.00 p.m. In short, it is urged

that the record plainly speaks about the manner in which the

Family Court proceeded to pass the orders on 21.9.2019, with

tearing hurry at the behest of the respondent whilst completely

disregarding the mandatory procedure prescribed in the 1984 Act

read with the provisions of the CPC. It was a clear case of

infraction of principles of natural justice. It is urged that it was

not open to the Family Court to assume the factum of appellant

having abandoned the proceedings unless he had appeared in

Court to say so or had informed the Court in writing in that

regard. It is a question of fact and not a matter for deducing
14
legal presumption. Assuming that the Court was convinced that

the appellant was not pursuing the proceedings diligently or was

creating obstruction in any manner, the Court, at best, could

have dismissed the petition filed by the appellant on the ground

of default or non­prosecution under Order IX Rule 8 of the CPC.

In any case, since the Court chose to proceed with the

transposition application ex parte against the appellant, it should

have clearly recorded that fact in its order and the reasons in

support thereof. Besides, after transposition of respondent as

the petitioner in the guardianship petition (G.P. No. 09/2018)

filed by the appellant and appellant as respondent therein, it was

imperative for the Court to issue notice to the appellant to file his

response in the proceedings. As a matter of fact, in guardianship

proceedings, the question of transposition does not arise. For, it

is a substantive petition founded on cause of action personal to

the person claiming to be guardian of his own ward. Moreover,

admittedly, the respondent had never filed written statement to

oppose the guardianship petition filed by the appellant much less

reply to the application(s) for amendment of petition, which could

be treated by the Court as guardianship petition filed by the
15
respondent herself. In either case, the Court was obliged to issue

notice to the appellant and only after service of notice, could have

proceeded in the matter. If the respondent had any difficulty in

effecting service of notice on the appellant, the Court could have

allowed the respondent to serve the appellant through

substituted service under Order V of the CPC. Even that attempt

was not made by the Court. Instead, it presumed that the

appellant had abandoned the proceedings. That approach is

manifestly wrong. Hence, the procedure followed by the Family

Court until culmination of proceedings into judgment and orders

dated 21.9.2019, is vitiated in law.

12. The appellant is relying on dictum in Mamata Mayee

Sahoo vs. Abinash Sahoo9, wherein the Orissa High Court took

note of the procedural compliances to be made by the Family

Court. According to the appellant, the decision relied upon by

the Family Court of Delhi High Court in Someshwar Dayal vs.

Anupama Dayal10, was inapposite. It was clearly

distinguishable, as there was nothing on record to indicate that

the petitioner had expressly abandoned the proceedings or after
9 2015 SCC Online Ori 167
10 2016 SCC Online Del 4585
16
due opportunity, had committed default in any manner. The

present case indeed, was one of counsel appearing for the

appellant having withdrawn from the case. That does not mean

that the appellant had abandoned the proceedings. It is urged

that the application filed by the respondent under Section 151 of

the CPC, in law, could not be regarded as a substantive petition

required to be filed under Section 25 of the 1890 Act for a

declaration/appointment as guardian. In any case, the Family

Court was under obligation to insist for the written statement to

be filed by the respondent including reply to the applications filed

by the appellant under Order VI Rule 17 of the CPC and then to

frame issues on which the matter could proceed. Not only that,

the Family Court was obliged to record evidence before

adjudicating the matters in issue and pronounce final declaration

and judgment under Section 17 of the 1984 Act, which obliges

the Family Court to record a concise statement of the case, the

point for determination, the decision thereon and the reasons for

such decision. The Family Court in the guise of entertaining

application under Section 151 of the CPC, cannot assume the

plenary power of a constitutional Court, but is obliged to decide

the case as per the mandatory procedure prescribed in the
17
concerned Act and/or the CPC, as the case may be, for conduct

of trial and inquiry. Strikingly, the Family Court, after

pronouncing the impugned judgment and orders on 21.9.2019,

upon an application filed by the respondent under Section 151 of

the CPC, despite becoming functus officio, issued directions vide

order dated 16.10.2019 to the effect that the custody of the minor

child be handed over to the respondent mother within specified

time. It was matter of record that the child was away from the

jurisdiction of the Family Court when the relevant orders came to

be passed. In law, therefore, the Family Court could not have

exercised jurisdiction as noted in Ruchi Majoo vs. Sanjeev

Majoo11.

13. The appellant asserts that he is a loving, caring, concerned

and affectionate father and the minor cannot be denied of all that

merely because of events that unfolded during the pendency of

habeas corpus petition(s) or contempt petition(s) before the High

Court. The central concern of the Court should be the

paramount welfare and interest of the minor child. The approach

of the Court in that regard ought to be child­centric. The issue

11 (2011) 6 SCC 479
18
cannot be answered on the basis of claims and counter claims of

the warring parents, as to deny the child of parentage of her

father because of other acts of commission and omission of the

father. To do so would, in effect, be punishing the minor child

and depriving her of the love and affection of her father. That

must be eschewed. The Family Court in such proceedings is

obliged to record a clear finding about the unfitness or otherwise

of the father to be a guardian. That must be in the context of the

child care and not other matters or worldly activities of father.

As a matter of fact, contends the learned counsel, the most

appropriate course would be to follow the joint shared parenting

plan, in which the child would interact with both the parents in

equal measure. Further, the paramount interest and welfare of

the child is not limited to being connected with father and

mother, but even other family members from both sides for her

well­being and holistic growth. That is vital in the context of

child psychology and upbringing. As a matter of fact, during

counselling, the respondent had accepted the fact that because

she is a working woman, the child can remain with the

grandparents, who were staying only few houses away, during
19
the day time on working days. The appellant had highlighted

several aspects about the unfitness of the respondent to groom

the child or devote enough time and attention herself.

14. Reliance has been placed on the dictum in Savitha

Seetharam vs. Rajiv Vijayasarathy Rathnam12, JK vs. NS13,

Tushar Vishnu Ubale vs. Archna Tushar Ubale 14, Law

Commission of India Report No. 25715 and Child Access &

Custody Guidelines alongwith Parenting Plan16. According to

the appellant, joint custody or shared parenting would be in the

“best interest and welfare of the child”. That would ensure that

every decision taken regarding the child is for fulfilment of her

basic rights and needs, identity, social well­being and physical,

emotional and intellectual development. Reliance is placed on

decision in Lahari Sakhamuri vs. Sobhan Kodali17, Ashish

Ranjan vs. Anupma Tandon & Anr.18, Tejaswini Gaud & Ors.

12 2020 (4) AKR 372 (paragraphs 9-11, 13, 23 and 32)
13 2019 SCC Online Del 9085 (paragraphs 89 and 95-97)
14 AIR 2016 Bom 88 (paragraphs 15 and 17-20)
15 Law Commission of India Report No. 257 – Reforms in Guardianship and Custody Laws
in India (May, 2015)
16 Child Access & Custody Guidelines alongwith Parenting Plan by Child Rights Foundation
NGO, Mumbai, 2014
17 (2019) 7 SCC 311
18 (2010) 14 SCC 274
20
vs. Shekhar Jagdish Prasad Tewari & Ors.19, and Vivek

Singh vs. Romani Singh20.

15. It is urged that the respondent for reasons best known to

her, precipitated the matter despite the pre­emptory directions

given by this Court in connected proceedings between the parties,

by taking U.S. nationality of the minor child and also obtained a

Consular Report of Birth Abroad Status (CRBA) in December,

2019 from the U.S. Embassy. The respondent herself is a U.S.

citizen. Therefore, the appellant apprehends that the respondent

has intention to remove the child away from the jurisdiction of

the Courts in India and permanently deny access to him and his

family members. Since the respondent has secured CRBA status

on the basis of declaration given by the Family Court vide

impugned judgment and orders, upon setting aside of that order,

all consequential claims/benefits accrued or derived by the

respondent on that basis, must also become non­est in the eyes

of law.

16. As a matter of fact, in the Indian context, neither provisions

of the 1984 Act nor the 1890 Act, envisage a declaration in favour

19 (2019) 7 SCC 42
20 (2017) 3 SCC 231
21
of the parent to be the sole, exclusive and absolute guardian and

custodian of the minor child. Such declaration has been

intentionally obtained by the respondent from the Family Court

to serve her ulterior purpose. The appellant has taken us

through other points to buttress the argument that the

respondent is not a fit person for parental custody or

guardianship of the minor child. The appellant has also relied on

the observations in Nithya Anand Raghavan vs. State (NCT of

Delhi) & Anr.21, Prateek Gupta vs. Shilpi Gupta & Ors. 22,

Kanika Goel vs. State of Delhi & Anr.23 and ABC vs. State

(NCT of Delhi)24. According to the appellant, the father being a

natural guardian under the Hindu Laws, is entitled for

declaration of guardianship unless it is found in a given case that

he is unfit in the context of parenting of the minor child or would

act against the interest and welfare of the minor child, as the

case may be. According to the appellant, the father is a natural

guardian. Irrespective of the mother’s custody, the guardianship

of the father cannot be divested in law. To buttress this

21 (2017) 8 SCC 454
22 (2018) 2 SCC 309
23 (2018) 9 SCC 578
24 (2015) 10 SCC 1
22
contention, reliance is placed on Roxann Sharma vs. Arun

Sharma25. It is contended that unless the father is declared as

unfit, the relief of declaring him to be the guardian cannot be

declined. The fact that the appellant had taken the child away

from the jurisdiction of the Family Court, does not mean that he

was a kidnapper of the child, as he continues to be a natural

guardian.

17. It is also urged that interparental child removal is not a

statutory offence. Reliance has been placed on the Hague

Convention on the Civil Aspects of International Child

Abduction, dated 25.10.198026 to contend that issue of

accession to the 1980 Hague Convention is still under

consideration of the Government of India and interparental child

abduction has not yet found any recognition in Indian law.

18. According to the appellant, the impugned judgment and

orders cannot be sustained on any parameter and need to be set

aside and instead, the guardianship petition (G.P. No. 09/2018)

filed by the appellant be made absolute in favour of the appellant.

25 (2015) 8 SCC 318
26 for short, “the 1980 Hague Convention”
23

19. The respondent has stoutly refuted the stand taken by the

appellant. It is urged that the Family Court had no other option,

but to proceed on the basis that the appellant had abandoned the

proceedings before that Court. Merely because there is no

express statement forthcoming from the appellant in the

proceedings before the Family Court, does not mean that he had

not abandoned the proceedings before the Family Court by his

conduct and other circumstances established from the record

and so noted even by the High Court. The appellant admittedly

filed proceedings in the UAE Court claiming himself to have

converted to Islam. It is only when it became impossible for him

to continue with those proceedings and his arrest became

inevitable, he had no other option, but to withdraw those

proceedings and submit to the jurisdiction of this Court. Such a

litigant cannot be shown any indulgence nor would deserve any

sympathy. The appellant is required to discharge high burden of

estoppel, in raising procedural deficiencies in the decision­

making process by the Family Court. In any case, the facts and

the record would reveal that the appellant had full notice about

the progress of the matter and the applications filed by the

respondent, as is evident from his email trail. It is urged that the
24
appellant because of his conduct, has denied himself of raising

technical pleas about procedural lapses committed by the Family

Court. The procedural justice is always subservient to the

substantive justice. It is urged that hyper technical argument of

the appellant regarding non­compliance of procedure by the

Family Court, needs to be negatived in light of the exposition in

Sangram Singh vs. Electional Tribunal, Kotah & Anr. 27,

State of Punjab & Anr. vs. Shamlal Murari & Anr.28 and

Rosy Jacob vs. Jacob A. Chakramakkal29.

20. In the alternative, it is submitted that there are strong

reasons why the order passed by the Family Court needs to be

upheld. For, the appellant not only converted himself to Islam

but also indulged in misadventure by abducting minor child and

taking her away outside India and obtained Dominica citizenship

and Dominica passport for the minor. The mother being the

natural guardian and the appellant having misconducted

rendered himself to be unfit as guardian, the Family Court justly

recognised the respondent as the sole guardian of the minor.

27 AIR 1955 SC 425 (paragraph 16)
28 (1976) 1 SCC 719 (paragraph 8)
29 (1973) 1 SCC 840
25

21. As regards the U.S. citizenship taken by the respondent of

the minor child and U.S. passport, the respondent through

counsel submits that she would surrender the same. That was

taken by the respondent in good faith and for the welfare of the

minor child. It is urged that the Family Court has done

independent evaluation of the relevant factual matrix before

concluding that giving guardianship to the appellant father would

not be advisable and instead, the respondent was the fit person

to be appointed as sole, exclusive and absolute guardian and

custodian of the minor child. That can be discerned from the

discussion in paragraphs 15, 17 to 28 of the impugned judgment.

It is urged that the minor child is not comfortable while in

company of the appellant or his family members, whereas, she is

being properly looked after by the respondent and her family

members. Even though the respondent is a working woman

being a professional, she is conscious of her obligation towards

the minor child and gives her best for the welfare and upbringing

of her daughter. The present arrangement of visitation permitted

by this Court in the connected proceedings to appellant can

continue on same terms without disturbing the decision of the

Family Court declaring the respondent as the sole guardian of
26
the minor. The respondent is willing to abide by any terms and

conditions, as may be imposed by this Court to secure the

welfare and interest of the minor child. The appellant having

converted himself to Islam for reasons best known to him, has

disentitled himself from acting as a guardian of the child who

continues to remain Hindu.

22. Reliance is placed on Section 6 of the Hindu Minority and

Guardianship Act, 195630. As per the proviso therein, no person

is entitled to act as the natural guardian of a minor under the

provisions of Section 6, if he has ceased to be a Hindu. There

being a clear embargo by statute coupled with the welfare of the

minor child, the appellant is unfit for a declaration sought by

him. The appellant had indulged in abduction of the minor child

on two occasions, which has been frowned upon by the High

Court in habeas corpus proceedings and more particularly, in

contempt action initiated against the appellant and his family

members. That itself is a good reason to deny any relief to the

appellant. Rather, the appellant should not be heard until he

purges contempt and those proceedings are still pending before

this Court. This Court ought to exercise parens patriae

30 for short, “the 1956 Act”
27
jurisdiction, keeping in mind the paramount interest of the minor

child as observed in Gaurav Nagpal vs. Sumedha Nagpal31,

especially because the appellant has acted against the welfare of

the minor. Any other view would result in rewarding him for his

misconduct and misadventure including the disobedience of the

directions issued by the High Court, by abducting the minor on

two occasions, the first one when she was seven months old and

the second when she was only two years old. The minor must

have undergone traumatic experience because of such abduction

and taking her away to foreign country completely blocking out

from her mother (respondent). This is not a case of over­zealous

emotional father, who loves his child, but is a revengeful father

who hates his wife (mother of minor child), much more than his

proclaimed love for his child. The appellant is unfit as a model

parent and does not have moral values of an upstanding citizen

who respects the law and cares about the people around him.

23. Reliance has been placed on the pleadings filed by the

appellant, wherein he had gone to the extent of showing distrust

in the judicial system of this country and had converted himself

to Islam only to ensure that the custody of the child remains with

31 (2009) 1 SCC 42
28
him. He did not stop at that, but also fraudulently obtained

passport for the minor child from the Dominica when her Indian

passport was in custody of the High Court. He devised a legal

stratagem of using Indian legal system, as well as, the Courts in

UAE for achieving his immoral plan of retaining custody of the

minor child with him and to completely deny the respondent of

any access or interaction whatsoever with the minor child. The

appellant had approached the Court of equity and having

misconducted himself and abused the judicial process, is not

entitled for any relief whatsoever. It is urged that by now, it is

well established that “maternal preference rule” is the rule

codified in the form of Section 6(a) of the 1956 Act, which gives

right to the mother to get absolute custody of the minor

daughter. Reliance is placed on dictum in ABC (supra) in

support of this proposition. According to the respondent, there is

an ongoing risk of third kidnapping or attempt in that behalf by

the appellant. The appellant is a flight risk and cannot be pinned

down in the event he manages to escape with the minor child. To

safeguard the interest of the minor child in appropriate way and

to ensure that she is not denied of the motherly love of the

respondent and her family members as well, it will be just and
29
proper to uphold the decision of the Family Court. Further, there

is no merit in the argument of the appellant that because of

stated procedural lapses committed by the Family Court, the

matter needs to proceed afresh before the Family Court. That

would be a futile exercise because the conduct of the appellant all

throughout has disentitled him for being declared as a fit person

for being the guardian of minor child.

24. Our attention was drawn to various documents to support

the argument about the manner in which the appellant had

misconducted with her (respondent) including disobeying the

directions issued by the High Court and resultantly, caused

immense tension and stress to the minor child of such a tender

age, because of her abduction on two occasions. According to the

respondent, the appeal filed by the appellant questioning the

impugned judgment and orders passed by the Family Court does

not merit any interference and the same be dismissed.

25. We have heard Mr. Anil Malhotra, learned counsel for the

appellant and Mr. Shyam Divan, learned senior counsel for the

respondent.

30

26. After cogitating over the rival submissions, in our

considered opinion, it may not be appropriate for us to delve into

the factual matrix of the case, especially regarding the conduct of

the parties as alleged by them against each other, for the nature

of order that we propose to pass.

27. We are more than convinced that the Family Court, in the

present case, exceeded its jurisdiction by hastening the entire

proceedings. Indubitably, the Family Court is obliged to inquire

into the matter as per the procedure prescribed by law. It does

not have plenary powers to do away with the mandatory

procedural requirements in particular, which guarantee fairness

and transparency in the process to be followed and for

adjudication of claims of both sides. The nature of inquiry before

the Family Court is, indeed, adjudicatory. It is obliged to resolve

the rival claims of the parties and while doing so, it must adhere

to the norms prescribed by the statue in that regard and also the

foundational principle of fairness of procedure and natural

justice.

28. The Family Courts came to be established under the 1984

Act. Section 7 specifies the jurisdiction of the Family Court and

31
about the nature of claims to be adjudicated by it in the form of

suits and proceedings delineated in the explanation in sub­

section (1). Section 10 predicates about the procedure generally.

The provisions of the CPC are made applicable for resolution of

disputes falling under the 1984 Act. The Family Court is deemed

to be a Civil Court having all powers of such Court. Consequent

to bestowing such power on the Family Court, comes with it a

primary duty to make efforts for settlement, as prescribed under

Section 9. If that does not happen, during the resolution of

disputes between the parties, the Family Court then has to bear

in mind the principles enunciated in the Indian Evidence Act,

1872, which had been made applicable in terms of Section 14 of

the 1984 Act. A Family Court can receive as evidence any report,

statement, documents, information or matter that may, in its

opinion, assist it to deal effectually with a dispute, whether or not

the same would be otherwise relevant or admissible under the

Indian Evidence Act, 1872. There is another provision, which

gives insight into the working of the Family Court in the form of

Section 15. It posits that the Family Court shall not be obliged to

record the evidence of witnesses at length, but the Judge, as the

examination of each witness proceeds, shall, record or cause to
32
be recorded, a memorandum of the substance of what the

witness deposes, and such memorandum shall be signed by the

witness and the Judge and shall form part of the record. An

incidental provision regarding efficacy of recording of evidence

can be traced to Section 16 of the 1984 Act. That envisages that

evidence of any person where such evidence is of a formal

character, may be given by affidavit and may, subject to all just

exceptions, be read in evidence in any suit or proceeding before a

Family Court.

29. These provisions plainly reveal that the Family Court is

expected to follow procedure known to law, which means insist

for a formal pleading to be filed by both sides, then frame issues

for determination, record evidence of the parties to prove the

facts asserted by the concerned party and only thereafter, to

enter upon determination and render decision thereon by

recording reasons for such decision. For doing this, the Family

Court is expected to give notice to the respective parties and

provide them sufficient time and opportunity to present their

claim in the form of pleadings and evidence before determination

of the dispute.

33

30. We may usefully refer to the provisions of the 1890 Act, as

invoked by the appellant by filing petition before the Family

Court. The appellant admittedly filed petition before the Family

Court under Section 7 of the 1890 Act read with Section 7(g) of

the 1984 Act. Section 7 of the 1890 Act bestows power in the

Court to make order as to guardianship in respect of a minor.

Such prayer can be made by anyone interested in the welfare of

the minor and “not limited to the father and mother of the

minor”. In this inquiry, the Court, if so satisfied that it is for the

welfare of the minor, is free to appoint the applicant as a

guardian of person or property of the minor or both or merely

declaring a person to be such a guardian. Section 8 of the Act

makes it amply clear as to who is entitled to apply for the order.

It has specified four categories of persons. First is person

desirous of being the guardian of the minor. The second is any

relative or friend of the minor. The third is the Collector of the

district or other local area within which the minor ordinarily

resides and the fourth is the Collector having authority with

respect to the class to which the minor belongs. Such

application is required to be filed before the District Court having

jurisdiction in the place where the minor ordinarily resides under
34
Section 9 of the 1890 Act. As regards procedure for such an

application, it is delineated by providing for the form of

application in Section 10 of the Act, which must contain

necessary information referred to therein. Section 11 prescribes

for the procedure in the event the Court is satisfied that there is

ground for proceeding on the application. That would require

adducing of evidence before making an order in terms of Section

13 of the 1890 Act. The Court is required to consider certain

matters as specified in Section 17 of the 1890 Act and while

making order, must also bear in mind the exception provided in

Section 19 as to who should not be appointed as guardian.

31. Suffice it to observe that both the enactments (the 1984 Act

and the 1890 Act), provide for procedure in the form of

disclosures, declarations and assertions and its refutations by

the other party opposing the claim, whereafter the matter

proceeds for recording of evidence followed by the declaration or

order passed by the Court. Intrinsic in all these steps is to

guarantee fair opportunity to all concerned.

32. The question, therefore, that needs to be answered in light

of the grievance made by the appellant is: whether the Family

35
Court in the present case had followed procedure prescribed by

the concerned Act, much less a fair procedure adhering to

principles of natural justice?

33. It is not in dispute that the appellant had filed the petition

by invoking provisions of Section 7 of the 1890 Act read with

Section 7(g) of the 1984 Act. Admittedly, no written statement

was ever filed by the respondent to oppose the said petition. On

the other hand, the appellant took out two applications for

amendment of the pleadings under Order VI Rule 17 of the CPC.

No reply was filed by the respondent even to these applications,

despite Court directing her to do so vide order dated 4.10.2018.

There is nothing on record to indicate that the Family Court

decided these two applications for amendment of pleadings taken

out by the appellant. Although the main objection alongwith two

applications for amendment filed by the appellant remained

pending from February, 2018, the respondent never filed

response to the main petition or the amendment applications and

instead took out application under Section 151 of the CPC for

being appointed the sole and absolute guardian and custodian of

the minor child, on 13.9.2019. This application was posted for

hearing on 13.9.2019, on which date the Court issued notice to
36
the appellant and his counsel. As per that order, the matter was

again notified on 16.9.2019 when the counsel appearing for the

appellant – Mr. Rajat Bhalla requested the Court to

discharge him from the case, which request was acceded to by

the Court. As a matter of fact, before discharging the counsel,

the Family Court should have ensured that notice was given to

the appellant about the request made by his counsel including to

make alternative arrangements, if he so desired. Admittedly, no

such notice was issued by the Family Court. That is reinforced

from the order dated 16.9.2019 reproduced in paragraph 7

above. It has been plainly noted that dasti notice sent to the

appellant was still awaited.

34. Assuming that the Family Court could have allowed the

request of the counsel for the appellant to unilaterally take

discharge without giving notice to the appellant. However, after

accepting that request, it was obligatory to issue notice to the

appellant to inform about the order so passed and also calling

upon the appellant to make necessary arrangements on the next

date. The Family Court instead set down the main matter on

19.9.2019 at 2.30 p.m. In terms of order dated 16.9.2019, the

Family Court additionally cancelled the already scheduled
37
returnable date of 30.10.2019, unilaterally. There is nothing on

record to show that the respondent had made such a request.

35. What is more striking, is that, before 19.9.2019, the

respondent took out another application under Order I Rule 10

read with Order XXIII Rule 1A of the CPC for being transposed as

petitioner in the guardianship petition and to transpose appellant

as respondent therein, for the reasons stated in the application

dated 18.9.2019. Admittedly, even copy of this application was

not served on the appellant nor a formal notice came to be issued

by the Family Court on this application, when it was taken up for

hearing on 19.9.2019. The Family Court merely ordered to place

the matter on 20.9.2019 at 1.00 p.m. The order dated 19.9.2019

(in paragraph 8 above), makes no reference to the fact as to

whether the notice sent to the appellant vide order dated

16.9.2019 had been duly served nor about the filing of any

affidavit of service effected on him. Be that as it may, when the

matter was listed on 20.9.2019, the Court after hearing the

learned counsel for the respondent passed the following order

(also reproduced in paragraph 8 above): ­

“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia

38
20.09.2019
Present: None for petitioner.

Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.

Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.

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

Be listed for orders on 21.09.2019.

Sd/­
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”

Once again, there is no mention even in this order about service

of (i) the application under Section 151 of the CPC filed by the

respondent, (ii) the application under Order I Rule 10 of the CPC

read with Order XXIII Rule 1 read with Section 151 of the CPC

filed by the respondent, (iii) order dated 16.9.2019 and (iv) order

issuing notice on application under Order I Rule 10 on the

appellant. Despite this, the Court proceeded on the assumption

that the appellant had abandoned the proceedings. There can be

no legal presumption about the factum of abandonment of

proceedings. The abandonment has to be express or even if it is

to be implied, the circumstances must be so strong and

convincing that drawing such inference is inevitable. Rather, no
39
other view is possible. For that, the Court ought to have adverted

to the material/evidence indicating that the appellant/petitioner

was duly served with the applications filed by the respondent and

that he was fully aware about the discharge of the counsel

representing him in the proceedings including about service of

Court notices. Even if the Court was to infer abandonment, it

could at best have dismissed the petition for default in exercise of

power under Order IX Rule 8 of the CPC.

36. Further, the Court could not have entertained the

transposition application filed by the respondent ex parte and

that too without ensuring that it was duly served on the

appellant consequent to notice issued thereon by the Court.

Admittedly, there is no official Court record to indicate that such

service was effected on the appellant including that the Court

had issued notice on the transposition application. Arguendo,

such transposition was permissible but after allowing the

transposition application ex parte, unless the cause title was

amended and appropriate changes/amendments made in the

petition including parties producing evidence in support of their

claim, the matter could not have proceeded for final

40
determination. After such amendment, in any case, opportunity

was required to be given to the appellant by issuing Court notice

so as to enable him to respond to the amended petition including

to contest the same. We may not be understood to have accepted

the proposition that transposition in guardianship proceeding is

permissible, much less permissible as a matter of course at the

instance of the other parent of the minor child. We leave that

question open.

37. In Sangram Singh (supra), this Court in paragraph 16

observed that procedure is something designed to facilitate

justice and further its ends – not a penal enactment for

punishment and penalties; not a thing designed to trip people up.

Further, too technical a construction of sections that leaves no

room for reasonable elasticity of interpretation should therefore

be guarded against (provided always that justice is done to both

sides) lest the very means designed for the furtherance of justice

be used to frustrate it. These observations are contextual and

have no application to the case where there is no semblance of

procedure followed by the Family Court and the entire matter is

disposed of in a short span of less than eight days after filing of

an application (on 13.9.2019) by the respondent under Section
41
151 of the CPC for declaring her to be the sole, exclusive and

absolute guardian and custodian of the minor child including the

transposition application under Order I Rule 10 (filed on

18.9.2019) and culmination of the proceedings in favour of the

respondent on 21.9.2019 vide impugned judgment and orders,

that too without notice to the appellant nor waiting for service of

notice already issued on the former application. This is

substantial non­compliance of the prescribed mandatory

procedure and infraction of principles of natural justice, not a

technical irregularity to be overlooked.

38. Reliance was also placed on the dictum in Shamlal Murari

(supra). In paragraph 8, while construing the concerned rule,

this Court opined that every minor detail in that rule cannot

carry a compulsory or imperative import. On that finding, the

Court construed the said rule as directory and not having the

effect of vitiating proceedings as in the present case, both on

account of non­compliance of statutory procedural safeguards

and in violation of principles of natural justice.

39. Reliance was then placed on Rosy Jacob (supra). In that

case, the Court dealt with proceedings under Section 25 of the
42
1890 Act and in the fact situation of that case, noted that the

guardian Court in case of a dispute between the mother and the

father is expected to strike a just and proper balance between the

requirements of welfare of the minor children and the rights of

their respective parents over them. This issue may have to be

debated in the remanded proceedings. We do not wish to dilate

on this aspect.

40. Suffice it to observe that the appellant is justified in

contending that the impugned judgment and orders came to be

passed by the Family Court in a tearing hurry, may be because of

the insistence of the respondent and her counsel to do so in light

of the observations made by the High Court in habeas corpus and

contempt matters against the appellant. The impugned judgment

does make reference to those orders. We may hasten to add that

the conduct of the appellant frowned upon by the High Court in

the habeas corpus petition or contempt petition, cannot be made

the sole basis to determine the factum of fitness or otherwise of

the appellant for being a guardian of the minor child. That fact

has to be decided on its own merits taking all aspects into

account including possibility of joint shared parenting
43
arrangement and more particularly, child­centric approach with

paramount welfare and interest of the minor child. It is for that

reason, even the High Court whilst disposing the habeas corpus

and contempt proceedings, had added a word of caution at the

end of its judgment that guardianship petition or other

proceedings between the parties must proceed on their own

merits in accordance with law, which observation has been

completely glossed over by the Family Court in the present case.

41. We have chosen not to dilate on other aspects or reported

decisions brought to our notice by both sides including about the

conduct of parties as alleged by each of them against the other.

Nor it is necessary for us to examine the necessity of exploring

the possibility of joint shared parenting plan, to assuage the

psychological barriers likely to be encountered by the minor child

of tender age and more particularly, for her holistic development,

welfare and paramount interest. Those are matters which the

Family Court ought to examine after giving due opportunity to

both sides on their own merits and in accordance with law.

44

42. A priori, we have no hesitation in setting aside the ex parte

impugned judgment and orders dated 21.9.2019 passed by the

Family Court on transposition application, as well as, on the

application for declaration that the respondent is the sole,

exclusive and absolute guardian and custodian of the minor

child. For the same reasons, the purported follow up order

passed on 16.10.2019 by the Family Court, directing handing

over custody of the minor child within the time specified therein,

is also set aside. As these orders are set aside, any action taken

on the basis of the aforesaid orders is to be regarded as non­est in

law and is so declared hereunder. That does not mean that the

custody of the minor child needs to be restored to the father

(appellant) forthwith. That issue will have to be decided finally by

the Family Court in the proceedings remanded in terms of this

order.

43. By this order, we direct remand and revival of the

Guardianship petition (G.P. No. 09/2018) and also all

applications filed in the main guardianship petition by the

45
appellant. In other words, the two applications for amendment of

petition filed by the appellant under Order VI Rule 17 read with

Section 151 of the CPC shall stand restored and revived and be

heard in the first place. Similarly, the other applications filed by

the appellant to bring on record subsequent events/documents

be also decided first. As the appellant has already withdrawn all

proceedings between the parties pending in UAE Court, as

recorded in connected matters pending in this Court, it is

indicative of the fact that he intends to pursue the guardianship

petition to its logical end, and for that reason, the transposition

application under Order I Rule 10 read with Order XXIII Rule 1

read with Section 151 of the CPC, filed by the respondent, needs

to be dismissed. We, however, revive the application filed by the

respondent under Section 151 of CPC for declaring her to be the

sole and absolute guardian in place of the appellant. That shall

proceed before the Family Court on its own merits in accordance

with law. All contentions available to both sides including about

its maintainability are left open to be decided by the Family Court

in accordance with law.

46

44. It was brought to our notice that the respondent has taken

U.S. citizenship for the minor child and also U.S. passport in her

name. In the context of that grievance, the respondent through

counsel had assured that she will not precipitate the said claim

and is willing to surrender the same in this Court to avoid any

misapprehension entertained by the appellant. The respondent

may do so within two weeks from today. At the same time, we

direct the respondent not to travel with the minor child outside

Delhi or abroad without prior permission of this Court to be

taken in the connected matters.

45. The appeal is partly allowed in the aforementioned terms

(referred to in paragraphs 42 to 44). The transferred case is

accordingly disposed of. No order as to costs. All pending

applications in this case are disposed of.

……………………………….J.

(A.M. Khanwilkar)

……………………………….J.

(B.R. Gavai)

……………………………….J.

(Krishna Murari)

47
New Delhi;

March 17, 2021.

48



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