AMAN LOHIA v. KIRAN LOHIA

1.8 The appellant is justified in contending that the impugned judgment and orders came to be passed by the Family Court in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so in light of the observations made by the High Court in habeas corpus and contempt matters against the appellant. The conduct of the appellant frowned upon by the High Court in the habeas corpus petition or contempt petition, cannot be made the sole basis to determine the factum of fitness or otherwise of the appellant for being a guardian of the minor child. That fact has to be decided on its own merits taking all aspects into account including possibility of joint shared parenting arrangement and more particularly, child-centric approach with paramount welfare and interest of the minor child. It is for that reason, even the High Court whilst disposing the habeas corpus and contempt proceedings, had added a word of caution at the end of its judgment that guardianship petition or other proceedings between the parties must proceed on their A B C D E F G H AMAN LOHIA v. KIRAN LOHIA 1137 own merits in accordance with law, which observation has been completely glossed over by the Family Court in the instant case. [Para 40][1161-E-H; 1162-A]

1.9 A priori, there is no hesitation in setting aside the ex parte impugned judgment and orders dated 21.9.2019 passed by the Family Court on transposition application, as well as, on the application for declaration that the respondent is the sole, exclusive and absolute guardian and custodian of the minor child. For the same reasons, the purported follow up order passed on 16.10.2019 by the Family Court, directing handing over custody of the minor child within the time specified therein, is also set aside. As these orders are set aside, any action taken on the basis of the said orders is to be regarded as non-est in law and is so declared hereunder. That does not mean that the custody of the minor child needs to be restored to the father (appellant) forthwith. That issue will have to be decided finally by the Family Court in the proceedings remanded in terms of this order. [Para 42][1162-D-F]

1.10 By this order, remand and revival of the Guardianship petition and also all applications filed in the main guardianship petition by the appellant is directed. The two applications for amendment of petition filed by the appellant under Order VI Rule 17 read with Section 151 CPC would be restored and revived and be heard in the first place. As the appellant has already withdrawn all proceedings between the parties pending in UAE Court, as recorded in connected matters pending in this Court, it is indicative of the fact that he intends to pursue the guardianship petition to its logical end, and for that reason, the transposition application under Order I Rule 10 read with Order XXIII Rule 1 read with Section 151 of the CPC, filed by the respondent, needs to be dismissed. However, the application filed by the respondent under Section 151 of CPC for declaring her to be the sole and absolute guardian in place of the appellant is revived. That shall proceed before the Family Court on its own merits in accordance with law. All contentions available to both sides including about its maintainability are left open to be decided by the Family Court. [Para 43][1162-F-H; 1163-A-B] A B C D E F G H 1138 SUPREME COURT REPORTS [2021] 2 S.C.R.

1.11 The respondent has taken U.S. citizenship for the minor child and also U.S. passport in her name. In the context of that grievance, the respondent through counsel had assured that she would not precipitate the said claim and is willing to surrender the same in this Court to avoid any misapprehension entertained by the appellant. [Para 44][1163-C-D] Mamata Mayee Sahoo vs. Abinash Sahoo 2015 SCC Online Ori 167; Someshwar Dayal vs. Anupama Dayal 2016 SCC Online Del 458; Ruchi Majoo vs. Sanjeev Majoo (2011) 6 SCC 479 : [2011] 7 SCR 674; Savitha Seetharam vs. Rajiv Vijayasarathy Rathnam 2020 (4) AKR 372; JK vs. NS 2019 SCC Online Del 9085; Tushar Vishnu Ubale vs. Archna Tushar Ubale AIR 2016 Bom 88; Lahari Sakhamuri vs. Sobhan Kodali (2019) 7 SCC 311:[2019] 5 SCR 240; Ashish Ranjan vs. Anupma Tandon & Anr. (2010) 14 SCC 274:[2010] 14 SCR 961; Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari & Ors. (2019) 7 SCC 42:[2019] 7 SCR 335; Vivek Singh vs. Romani Singh (2017) 3 SCC 231:[2017] 2 SCR 312; Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. (2017) 8 SCC 454:[2017] 7 SCR 281; Prateek Gupta vs. Shilpi Gupta & Ors. (2018) 2 SCC 309:[2017] 13 SCR 230; Kanika Goel vs. State of Delhi & Anr. (2018) 9 SCC 578 : [2018] 11 SCR 546; ABC vs. State (NCT of Delhi) (2015) 10 SCC 1 : [2015] 8 SCR 422; Roxann Sharma vs. Arun Sharma (2015) 8 SCC 318 : [2015] 2 SCR 572; Sangram Singh vs. Electional Tribunal, Kotah & Anr. AIR 1955 SC 425 : [1955] SCR 1; State of Punjab & Anr. vs. Shamlal Murari & Anr. (1976) 1 SCC 719 : [1976] 2 SCR 82 ; Rosy Jacob vs. Jacob A. Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918; Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42 : [2008] 16 SCR 396 – referred to. Child Access & Custody Guidelines alongwith Parenting Plan; Child Access & Custody Guidelines alongwith Parenting Plan by Child Rights Foundation NGO, A B C D E F G H AMAN LOHIA v. KIRAN LOHIA 1139 Mumbai, 2014; Law Commission of India Report No. 257 – Reforms in Guardianship and Custody Laws in India (May, 2015) – referred to. Case Law Reference [2011] 7 SCR 674 2020 (4) AKR 372 AIR 2016 Bom 88 [2019] 5 SCR 240 referred to referred to referred to referred to [2010] 14 SCR 961 referred to [2019] 7 SCR 335 [2017] 2 SCR 312 [2017] 7 SCR 281 referred to referred to referred to [2017] 13 SCR 230 referred to [2018] 11 SCR 546 referred to [2015] 8 SCR422 [2015] 2 SCR 572 [1955] SCR 1 [1976] 2 SCR 82 [1973] 3 SCR 918 referred to referred to referred to referred to referred to [2008] 16 SCR 396 referred to Para 12 Para 14 Para 14 Para 14 Para 14 Para 14 Para 14 Para 16 Para 16 Para 16 Para 16 Para 16 Para 17 Para 17 Para 17 Para 22 CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil) No. 25 of 2021 From the Judgment and Order dated 29.07.2020 of the High Court of Delhi at New Delhi in MAT Appeal (F.C.) No. 85 of 2020. K.M. Natraj, ASG , Shyam Divan, Sr. Adv., Anil Malhotra, Mukul Kumar, Rupesh Kumar, Rajeev Sharma, Taubon Irani, Ms. Neelam Sharma, Ms. Pankhuri Shrivastava, Alekshendra Sharma, Pravesh Bahuguna, Viresh B. Saharya, Akshat Agarwal, Ms. Malavika Rajkotia, Ms. Rytim Vohra, Sudipto Sircar, Ms. Ria Singh Sawhney, Lakshmi A B C D E F G H 1140 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G H Raman Singh, Ashok Panigrahi, Ms. Shraddha Deshmukh, Nabab Singh, B.V. Balaram Das, Arvind Kumar Sharma, Ms. Indira Bhakar, Sughosh Subramanyam, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant Dogra, Advs. for the appearing parties. The Judgment of the Court was delivered by A. M. KHANWILKAR, J.

#1. The appellant1 had filed MAT Appeal (F.C.) No. 85/2020 in the High Court of Delhi at New Delhi2, which stood withdrawn and transferred to this Court in light of other proceedings pending between the parties in this Court involving overlapping issues, as per the consent order passed on 29.7.2020. That appeal, filed by the appellant is against the judgment and orders dated 21.9.2019 of the Principal Judge, Family Court, Patiala House, New Delhi3, whereby the application filed by the respondent4 for transposing her as petitioner in the petition filed by the appellant declaring him as guardian of person of baby Raina and appointing him as her guardian, came to be allowed on the finding that the appellant had abandoned the petition. On the same day, by a separate order, the respondent was appointed as sole, exclusive and absolute guardian and custodian of minor child.

#2. Both the parties have resorted to multiple proceedings against each other, essentially emanating from the discordant marital relationship between them. Besides the guardianship petition filed by the appellant, the respondent had filed habeas corpus petition on two occasions and because of non-compliance of the directions issued by the Court regarding custody and visitation rights, both had to file contempt petition against each other. The appellant, as well as, his parents have also filed special leave petition(s) against the judgment of the High Court in habeas corpus petition(s) and contempt petition(s).

#3. As aforesaid, during the hearing of the said proceedings, parties consented to the transfer of first appeal [MAT Appeal (F.C.) No. 85/ 2020] pending before the High Court against the orders of the Family Court, dated 21.9.2019, which essentially involves issue regarding guardianship. Besides, a divorce petition is also pending between the parties. 1 husband of the respondent 2 for short, “the High Court” 3 for short, “the Family Court” 4 wife of the appellant AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 1141

#4. Be that as it may, when the cases between the parties in this Court were listed for analogous hearing, it was deemed appropriate to first deal with the question of guardianship, to which suggestion, the parties favourably responded and have addressed the Court on all aspects of that matter. Intriguingly, despite this Court vide order dated 29.7.2020 had withdrawn the stated first appeal pending before the High Court and transferred it to this Court, the High Court on 6.8.2020 in the very appeal, even after taking note of the order dated 29.7.2020 passed by this Court, proceeded to dispose of the appeal alongwith pending applications therein. That, obviously, could not have been done by the High Court. For, it had ceased to have jurisdiction to deal with the appeal any further after the order of this Court dated 29.7.2020. Nevertheless, both parties advisedly argued the transferred case (appeal) on merits without reference to the order of the High Court, dated 6.8.2020.

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

#6. At the outset, we may note that for the nature of order that we propose to pass in the present transferred case, it may not be necessary for us to advert to all the factual matters pointed out by both sides. Suffice it to note that the guardianship petition (G.P. No. 09/2018) was filed by the appellant under Section 7 of the Guardians and Wards Act, 18905read with Section 7(g) of the Family Courts Act, 19846 on 9.2.2018 on the assertion that the minor child was in his custody at the relevant time. The appellant had prayed for following reliefs: - “A. To declare petitioner as guardian of person of baby Raina. B. C. Appointing the petitioner as guardian of person of baby Raina. Any other relief this Hon’ble Court may deem fit and proper.” Notice was issued on the said petition on 19.2.2018. The respondent did not file written statement until August, 2018, when the appellant moved a formal application for amendment of the petition under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 5 for short, “the 1890 Act” 6 for short, “the 1984 Act” A B C D E F G H 1142 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G 19087 and Section 10 of the 1984 Act to bring on record certain subsequent events including regarding habeas corpus petition(s). This application was filed by the appellant on 21.8.2018. There is nothing on record to indicate that the Family Court dealt with and disposed of this application before the impugned order came to be passed on 21.9.2019. The appellant filed another application under Order VI Rule 17 read with Section 151 of the CPC and Section 10 of the 1984 Act for amendment of the petition, on 4.10.2018. The Family Court directed the respondent to file reply to this application. However, the respondent did not file reply even to this application. In view of certain further developments, the appellant moved another application before the Family Court on 20.2.2019 to place on record copy of order dated 13.2.2019 passed by the High Court in Civil Contempt Petition (CCP) No. 116/2019 against the respondent and for issuing further directions that because of the contemptuous conduct of the respondent, she should not be heard on any application until she purges contempt. The Family Court, besides taking note of that application, also recorded in its order dated 20.2.2019 that the application filed by the appellant under Order VI Rule 17 was still pending and notified the same for hearing on 8.3.2019. When the matter was listed before the Family Court on 8.3.2019, the respondent without any prior intimation, started arguing application under Section 26 of the Hindu Marriage Act, 19558 filed by her, despite the fact that the said application was not listed for argument on that date. What was listed on that day were the four applications, namely, two applications under Order VI Rule 17 of the CPC filed by the appellant, an application to take on record copy of High Court order dated 13.2.2019 in CCP No. 116/2019 and the fourth one - filed by the respondent under Order VII Rule 11 for dismissal of the guardianship petition (G.P. No. 09/2018). However, all the four applications stood deferred on that day.

#7. The respondent then filed an application under Section 151 of the CPC for declaring and appointing her to be the sole and absolute guardian and custodian of the minor child. This application was filed by the respondent on 13.9.2019. No notice was given to the appellant of this application nor advance copy thereof was supplied to him personally or his counsel. It had been averred in that application, that from the proceedings before the High Court appended to the application it was amply clear that the appellant had proved himself to be unworthy, 7 for short, the “CPC” 8 for short, “the HMA” H AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 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: - 1143 A “GP No. 09/2018 B Aman Lohia vs. Kiran Lohia

13.09.2019 Present: Ms. Rytim Vohra, Ld. Counsel for the respondent/ applicant. File taken up today on application under Section 151 CPC seeking appropriate directions filed on behalf of the respondent/ applicant. Let notice of the application be issued to the petitioner/non-applicant and his counsel on filing of PF as well as through E-mail as per law. Process be given dasti. Be listed on 16.09.2019 at 2.00 pm. Ld. Counsel for the petitioner has filed on record photocopy of the order of the Hon’ble High Court of Delhi dated 12.09.2019 vide which the application for transfer of the case from this court to some other court has been dismissed. Since now there is no bar or restraint for this court to proceed with the case notice has been issued to the non-applicant/petitioner.” (emphasis supplied) In terms of the said order, the matter was notified on 16.9.2019 when following order came to be passed: - “GP No. 09/2018 Aman Lohia vs. Kiran Kaur Lohia

16.9.2019 Present: Sh. Rajat Bhalla, Ld. Counsel for the petitioner. Ld. Proxy Counsel for the respondent. File taken up today as Sh. Rajat Bhalla, Ld. Counsel for the petitioner has been served with notice of the applications moved by ld. Counsel for the respondent for early hearing and issuance of directions. C D E F G H 1144 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G H Sh. Rajat Bhalla, Advocate who was appearing on behalf of the petitioner in the present petition and in HMA Bearing No. 625/18 (new No. 663/18) states that since he has not received any instructions from his client, therefore, he seeks discharge from this case. He has also pointed out that he has made similar request before the Hon’ble High Court of Delhi in same cases pending between the same parties and he was discharged in the same vide order dated 12.9.2019. He also states that he had written e- mail to his client and had tried other modes of service also to inform him that he should make alternative arrangements for a counsel as he is seeking discharge in this case. He states that he had sent e-mails to the counsel for the respondent that he was no more representing the petitioner Sh. Aman Lohia in any of the matters handled by him. Heard. After hearing counsel for the petitioner and having gone through the e-mails that he has sent to the petitioner and the copies of the orders of the Hon’ble High Court of Delhi, he is discharged from this case. No one is present thus today on behalf of the petitioner. Notice was sent to him dasti and report on the same is awaited. Be listed on 19.9.2019 at 2.30 pm. Earlier date given i.e. 30.10.2019 stands cancelled.” (emphasis supplied) In the meantime, the respondent filed another application under Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the CPC to transpose her as the petitioner in the guardianship petition (G.P. No. 09/2018). This application was filed on 18.9.2019. The reliefs claimed therein read thus: - “PRAYER In the above stated facts and circumstances, it is respectfully prayed that this Hon’ble Court may be pleased to: a. Transpose the Respondent as the Petitioner and the Petitioner as a Respondent in the present case. AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 1145 b. Pass such other orders or directions as it may deem fit and proper in the interest of justice.” A

#8. On 19.9.2019, the matter was listed before the Family Court, when the Court passed the following order: - “GP No. 09/2018 Aman Lohia vs. Kiran Kaur Lohia

19.09.2019 Present: None for petitioner. Respondent in person with Ld. Counsel Ms. Malvika Rajkotia. Ld. Counsel for the respondent has filed an application under Order 1 Rule 10 and Order 23 Rule 1 a r/w Section 151 CPC to transpose the respondent. Be listed for consideration on 20.09.2019 at 1.00 pm.” (emphasis supplied) On 20.9.2019, when the matter was taken up, the Court recorded the following order: - “GP No. 09/2018 Aman Lohia vs. Kiran Kaur Lohia

20.09.2019 Present: None for petitioner. Respondent in person with Ld. Counsel Ms. Malvika Rajkotia. Arguments have been heard from 2:15 to 5:00 pm on applications, one application under Order 1 Rule 10 and Order 23 Rule 1a r/w Section 151 CPC and other application under Section 151 CPC have been filed by the Ld. Counsel. Ld. Counsel for the respondent seeks time to file case law. Be listed for orders on 21.09.2019. B C D E F Sd/- G Swarna Kanta Sharma Principal Judge, Family Court Patiala House Court, New Delhi

20.09.2019 (R)” H 1146 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G H Once again, the Court did not advert to the crucial aspects as to whether the application under consideration had been duly served upon the appellant much less notice relating to application under Section 151 of the CPC filed by the respondent, as also, the subsequent application for transposition under Order I Rule 10.

#9. Accordingly, on 21.9.2019, the matter was posted for hearing before the Family Court when two separate orders came to be passed. The first order was that despite knowledge about the pending proceedings, the appellant had abandoned and withdrawn from the case for which reason the respondent was entitled to be transposed as the petitioner in the guardianship petition and seek declaration that she was the guardian of the minor child. It is stated that no notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the Court, despite the fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel. On the same day, the Family Court then proceeded to decide the main guardianship petition (G.P. No. 09/ 2018). After recording the material facts pointed out by the respondent, it proceeded to hold that giving guardianship of the minor child, who was only two and half years of age, to the appellant, was not advisable. By virtue of his conduct, he (appellant) had disentitled himself to be declared as guardian of the minor child. After recording this finding, the Court proceeded to hold that in the paramount interest and welfare of the child, the respondent mother needs to be declared as the sole, exclusive and absolute guardian and custodian of the minor child.

#10. Feeling aggrieved, the appellant approached the High Court by way of MAT Appeal (F.C.) No. 85/2020 to challenge the aforesaid judgment and orders passed by the Family Court, dated 21.9.2019. The appellant had raised diverse grounds to challenge the correctness of the view expressed by the Family Court including the manner in which the impugned orders were passed, without giving fair opportunity to him and also about failure to follow mandatory procedure. The impugned orders were passed by the Family Court without following due process of law and in breach of principles of natural justice, in the matters of discharging his advocate and not issuing notice to the appellant even thereafter, calling upon him to make alternative arrangements, and more so in allowing transposition of the respondent as petitioner and appellant as respondent and on the same day to declare her (respondent) as the sole, exclusive and absolute guardian and custodian of the minor child. AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 1147

#11. According to the appellant, the judgment under appeal is not a judgment in terms of Section 17 of the 1984 Act. That the record of the case makes it amply clear that the Family Court failed to adhere to the established practice and procedure to be followed for adjudicating the disputes brought before it under the 1984 Act. That is evident from the order dated 13.9.2019, which records that notice be issued to the appellant herein and his counsel returnable on 16.9.2019. at 2.00 p.m. However, on 16.9.2019, when the counsel appearing for the appellant – Mr. Rajat Bhalla informed the Court that he intended to take discharge and his application came to be allowed by the Court, no notice thereof was given to the appellant. The order clearly records that dasti report regarding service of notice sent to the appellant was still awaited. As a matter of fact, on an earlier date, the Court had posted the matter for 30.10.2019, which date stood unilaterally cancelled by the Family Court in terms of order dated 16.9.2019, again without notice to the appellant. Further, no affidavit of service was filed on record indicating the factum of service of notice on the appellant regarding the application under Section 151 of the CPC filed by the respondent praying that she be declared as the sole, exclusive and absolute guardian and custodian of the minor child. Despite that, the Court proceeded with the matter on 19.9.2019, but before that date, another application came to be filed by the respondent for transposing her as petitioner in the guardianship petition and appellant as respondent therein, for the reasons mentioned in the application dated 18.9.2019. Even copy of this application was not served on the appellant and despite that, the Family Court proceeded therewith on 19.9.2019 without recording the fact as to whether the appellant was duly served with the earlier application or the earlier notice; and yet chose to list the matter on the next day i.e., 20.9.2019 for consideration at 1.00 p.m. In short, it is urged that the record plainly speaks about the manner in which the Family Court proceeded to pass the orders on 21.9.2019, with tearing hurry at the behest of the respondent whilst completely disregarding the mandatory procedure prescribed in the 1984 Act read with the provisions of the CPC. It was a clear case of infraction of principles of natural justice. It is urged that it was not open to the Family Court to assume the factum of appellant having abandoned the proceedings unless he had appeared in Court to say so or had informed the Court in writing in that regard. It is a question of fact and not a matter for deducing legal presumption. Assuming that the Court was convinced that the appellant was not pursuing the proceedings diligently or was creating obstruction in any manner, the Court, at best, could have dismissed the petition filed A B C D E F G H 1148 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G by the appellant on the ground of default or non-prosecution under Order IX Rule 8 of the CPC. In any case, since the Court chose to proceed with the transposition application ex parte against the appellant, it should have clearly recorded that fact in its order and the reasons in support thereof. Besides, after transposition of respondent as the petitioner in the guardianship petition (G.P. No. 09/2018) filed by the appellant and appellant as respondent therein, it was imperative for the Court to issue notice to the appellant to file his response in the proceedings. As a matter of fact, in guardianship proceedings, the question of transposition does not arise. For, it is a substantive petition founded on cause of action personal to the person claiming to be guardian of his own ward. Moreover, admittedly, the respondent had never filed written statement to oppose the guardianship petition filed by the appellant much less reply to the application(s) for amendment of petition, which could be treated by the Court as guardianship petition filed by the respondent herself. In either case, the Court was obliged to issue notice to the appellant and only after service of notice, could have proceeded in the matter. If the respondent had any difficulty in effecting service of notice on the appellant, the Court could have allowed the respondent to serve the appellant through substituted service under Order V of the CPC. Even that attempt was not made by the Court. Instead, it presumed that the appellant had abandoned the proceedings. That approach is manifestly wrong. Hence, the procedure followed by the Family Court until culmination of proceedings into judgment and orders dated 21.9.2019, is vitiated in law.

#12. The appellant is relying on dictum in Mamata Mayee Sahoo vs. Abinash Sahoo9, wherein the Orissa High Court took note of the procedural compliances to be made by the Family Court. According to the appellant, the decision relied upon by the Family Court of Delhi High Court in Someshwar Dayal vs. Anupama Dayal10, was inapposite. It was clearly distinguishable, as there was nothing on record to indicate that the petitioner had expressly abandoned the proceedings or after due opportunity, had committed default in any manner. The present case indeed, was one of counsel appearing for the appellant having withdrawn from the case. That does not mean that the appellant had abandoned the proceedings. It is urged that the application filed by the respondent under Section 151 of the CPC, in law, could not be regarded as a substantive petition required to be filed under Section 25 of the 1890 Act for a 9 2015 SCC Online Ori 167 10 2016 SCC Online Del 4585 H AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 1149 declaration/appointment as guardian. In any case, the Family Court was under obligation to insist for the written statement to be filed by the respondent including reply to the applications filed by the appellant under Order VI Rule 17 of the CPC and then to frame issues on which the matter could proceed. Not only that, the Family Court was obliged to record evidence before adjudicating the matters in issue and pronounce final declaration and judgment under Section 17 of the 1984 Act, which obliges the Family Court to record a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. The Family Court in the guise of entertaining application under Section 151 of the CPC, cannot assume the plenary power of a constitutional Court, but is obliged to decide the case as per the mandatory procedure prescribed in the concerned Act and/or the CPC, as the case may be, for conduct of trial and inquiry. Strikingly, the Family Court, after pronouncing the impugned judgment and orders on 21.9.2019, upon an application filed by the respondent under Section 151 of the CPC, despite becoming functus officio, issued directions vide order dated 16.10.2019 to the effect that the custody of the minor child be handed over to the respondent mother within specified time. It was matter of record that the child was away from the jurisdiction of the Family Court when the relevant orders came to be passed. In law, therefore, the Family Court could not have exercised jurisdiction as noted in Ruchi Majoo vs. Sanjeev Majoo11.

#13. The appellant asserts that he is a loving, caring, concerned and affectionate father and the minor cannot be denied of all that merely because of events that unfolded during the pendency of habeas corpus petition(s) or contempt petition(s) before the High Court. The central concern of the Court should be the paramount welfare and interest of the minor child. The approach of the Court in that regard ought to be child-centric. The issue cannot be answered on the basis of claims and counter claims of the warring parents, as to deny the child of parentage of her father because of other acts of commission and omission of the father. To do so would, in effect, be punishing the minor child and depriving her of the love and affection of her father. That must be eschewed. The Family Court in such proceedings is obliged to record a clear finding about the unfitness or otherwise of the father to be a guardian. That must be in the context of the child care and not other matters or worldly activities of father. As a matter of fact, contends the learned counsel, 11 (2011) 6 SCC 479 A B C D E F G H 1150 SUPREME COURT REPORTS [2021] 2 S.C.R. A B C D E F G H the most appropriate course would be to follow the joint shared parenting plan, in which the child would interact with both the parents in equal measure. Further, the paramount interest and welfare of the child is not limited to being connected with father and mother, but even other family members from both sides for her well-being and holistic growth. That is vital in the context of child psychology and upbringing. As a matter of fact, during counselling, the respondent had accepted the fact that because she is a working woman, the child can remain with the grandparents, who were staying only few houses away, during the day time on working days. The appellant had highlighted several aspects about the unfitness of the respondent to groom the child or devote enough time and attention herself.

#14. Reliance has been placed on the dictum in Savitha Seetharam vs. Rajiv Vijayasarathy Rathnam12, JK vs. NS13, Tushar Vishnu Ubale vs. Archna Tushar Ubale14, Law Commission of India Report No. 25715 and Child Access & Custody Guidelines alongwith Parenting Plan16. According to the appellant, joint custody or shared parenting would be in the “best interest and welfare of the child”. That would ensure that every decision taken regarding the child is for fulfilment of her basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Reliance is placed on decision in Lahari Sakhamuri vs. Sobhan Kodali17, Ashish Ranjan vs. Anupma Tandon & Anr.18, Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari & Ors.19, and Vivek Singh vs. Romani Singh20.

#15. It is urged that the respondent for reasons best known to her, precipitated the matter despite the pre-emptory directions given by this Court in connected proceedings between the parties, by taking U.S. nationality of the minor child and also obtained a Consular Report of Birth Abroad Status (CRBA) in December, 2019 from the U.S. Embassy. 12 2020 (4) AKR 372 (paragraphs 9-11, 13, 23 and 32) 13 2019 SCC Online Del 9085 (paragraphs 89 and 95-97) 14 AIR 2016 Bom 88 (paragraphs 15 and 17-20) 15 Law Commission of India Report No. 257 – Reforms in Guardianship and Custody Laws in India (May, 2015) 16 Child Access & Custody Guidelines alongwith Parenting Plan by Child Rights Foundation NGO, Mumbai, 2014 17 (2019) 7 SCC 311 18 (2010) 14 SCC 274 19 (2019) 7 SCC 42 20 (2017) 3 SCC 231 AMAN LOHIA v. KIRAN LOHIA [A.M. KHANWILKAR, J.] 1151 The respondent herself is a U.S. citizen. Therefore, the appellant apprehends that the respondent has intention to remove the child away from the jurisdiction of the Courts in India and permanently deny access to him and his family members. Since the respondent has secured CRBA status on the basis of declaration given by the Family Court vide impugned judgment and orders, upon setting aside of that order, all consequential claims/benefits accrued or derived by the respondent on that basis, must also become non-est in the eyes of law.

#16. As a matter of fact, in the Indian context, neither provisions of the 1984 Act nor the 1890 Act, envisage a declaration in favour of the parent to be the sole, exclusive and absolute guardian and custodian of the minor child. Such declaration has been intentionally obtained by the respondent from the Family Court to serve her ulterior purpose. The appellant has taken us through other points to buttress the argument that the respondent is not a fit person for parental custody or guardianship of the minor child. The appellant has also relied on the observations in Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr.21, Prateek Gupta vs. Shilpi Gupta & Ors.22, Kanika Goel vs. State of Delhi & Anr.23 and ABC vs. State (NCT of Delhi)24. According to the appellant, the father being a natural guardian under the Hindu Laws, is entitled for declaration of guardianship unless it is found in a given case that he is unfit in the context of parenting of the minor child or would act against the interest and welfare of the minor child, as the case may be. According to the appellant, the father is a natural guardian. Irrespective of the mother’s custody, the guardianship of the father cannot be divested in law. To buttress this contention, reliance is placed on Roxann Sharma vs. Arun Sharma25. It is contended that unless the father is declared as unfit, the relief of declaring him to be the guardian cannot be declined. The fact that the appellant had taken the child away from the jurisdiction of the Family Court, does not mean that he was a kidnapper of the child, as he continues to be a natural guardian.

#17. It is also urged that interparental child removal is not a statutory offence. Reliance has been placed on the Hague Convention on the Civil Aspects of International Child Abduction, dated 25.10.198026