High Court · 2008

JUDGMENT AND ORDER (ORAL) The supervisory jurisdiction of this Court under Article 227 of the Constitution of India is sought to be invoked to interfere with the order da ted 27/5/2008 passed by the learned Principal Judge, Family Court in Misc. (G) 8 8/2007 granting interim custody of the minor child of the parties herein in favo ur of the opposite party. 2. I have heard Mr. A.K. Bhattacharjee, Sr. Advocate assisted by Mr . K. Agarwal Advocate for the petitioner, Mr. D.P. Chaliha, Sr. Advocate assiste d by Ms. K. Baruah, Advocate for the opposite party. 3. The prefatory facts available from the pleadings of the parties are indispensably necessary to be recorded to appropriately appreciate the rival submissions. The admitted facts are that the petitioner and the opposite party got married on 3/3/2003 under the Special Marriage Act, 1954, following which th e religious rites in connection therewith were performed on 5/3/2003 at the Maha bhairvi Temple at Tezpur under the Hindu Marriage Act, 1955 (hereafter referred to as the Act, 1955). A male child was born out of the matrimonial alliance on 1 0/3/2004, who is presently slightly above four years of age. According to the pe titioner, from the early part of the year 2007, the opposite party started to di splay traits of abnormal and unusual behaviour including instances of violent ra ge and outbursts of anger. Her other unusual activities coupled with the above c ompelled the petitioner to apprehend that she was suffering from some mental and /or psychological problem. This was so as on 23/8/2007, she in fit of uncontroll ed rage, threw the minor child against the wall resulting in grievous cut injuri es to him for which he had to be provided with urgent medical treatment. The pet itioner has asserted that thereafter, he took the opposite party to Dr. H.R. Pho okan, a reputed psychiatrist of Guwahati on three occasions. The doctor attended on her and prescribed medicines and also issued a certificate on 24/12/2007 ind icating the illness from which the opposite party was suffering. The petitioner also referred to a host of letters written by the opposite party to evince her i ncoherent and spasmodic mental projection. In view of the growing irreconcilable differences with the passa 4. ge of time with various factors contributing thereto, the parties eventually de cided to dissolve their marriage by mutual consent and to that effect submitted an application before the learned Family Court, Kamrup, Guwahati on 5/9/2007 whi ch was registered as Case No. F.C. (C) 326/2007. The learned Court below by an o rder of even date fixed the matter on 6/3/2008 on the expiry of six months of st atutory period for ultimate consideration thereof. The opposite party, as allege d by the petitioner, however, on the very same date i.e. 5/9/2007 abandoned the matrimonial home deserting the minor child. She, however, filed an application o n 13/11/2007 before the learned Family Court, Guwahati, expressing her mind to w ithdraw from the prayer for mutual divorce. By order dated 20/11/2007, the praye r so made was allowed. 5. The petitioner has referred to two complaints filed by the oppos ite party against him and his parents before the learned Chief Judicial Magistra te, Tezpur, and the Chief Judicial Magistrate, Kamrup, Guwahati. Whereas the fir st complaint registered as case No. 438(C)/2007 has since been dismissed, the su bsequent one registered as Complaint Case No. 7659/2007 is pending in which the petitioner has already entered appearance. It was thereafter that the opposite p arty filed an application under section 7 of the Family Courts Act, 1974 (hereaf ter referred to as the Act) on 23/11/2007 praying for custody of the minor son. This application was registered as Misc. (G) 88/2007 and on receipt of notice in connection therewith, the petitioner entered appearance on 20/12/2007. Later on , the opposite party filed another application on 1/2/2008 under section 7 of th e Guardians and Wards Act, 1890 (hereafter referred to as Act, 1890) in the abov e miscellaneous case praying for interim custody of the minor child. She inter a lia pleaded therein to construe her earlier application under section 7 of the A ct to be one under section 7 of the Act, 1890. The petitioner on 7/2/2008 filed his written objection amongst others challenging the maintainability of the appl ication and dismissed the allegations made against him and his family members to be false, frivolous and concocted. The learned Family Court by order dated 28/2 /2008 passed in Misc. (G) 88/2007 granted custody of the minor infavour of the o pposite party. In the meantime, she had also filed an application before the lea rned Family Court under section 125 of the Code of Criminal Procedure for mainte nance against the petitioner, which was registered as F.C. (Crl.) 565/2007. 6. Being aggrieved by the order dated 28/2/2008, the petitioner app roached this Court also under Article 227 of the Constitution of India, the proc eeding being registered as CRP 95/2008. He inter alia pleaded denial of opportun ity of hearing before the passing of the impugned order. This Court, by order da ted 11/4/2008, sustained his contention and while interfering with the order ass ailed remitted the issue back to the learned Family Court for fresh disposal. Th ereby the parties were also permitted to produce their respective factual inputs before the learned Court below for consideration thereof. The impugned order d ated 27/5/2008 was passed thereafter. 7. The opposite party in her affidavit while emphatically denying t he insinuation of mental illness has alleged that she was not accepted by the fa mily members of the petitioner and used to be ill-treated by them. According to her, she fell ill due to administration of high doses of medicine by the petitio ner as prescribed by Dr. H.R. Phookan and was physically and mentally harassed b y him (petitioner) and his family members to such an extant that she was compell ed to leave the matrimonial home on 5/9/2007 even without her minor son. She rep udiated the avowal of her mental illness made by the petitioner. She contended t hat the letters written by her constituted a creative expression of her poetic f eelings composed chronologically and maintained in the form of a diary. While hi ghlighting her brilliant academic career and illustrating her other literary acc omplishments, the opposite party claimed to have got herself treated by doctors of the psychiatric department of the Down Town Hospital, Guwahati, who on thorou gh examinations have certified her to be free from any mental disorder. She asse rted to be capable of maintaining the child even without the assistance of the p etitioner and contended that as he being a Contractor has to remain outdoors for his works, the child was practically in the custody of his parents. She insiste d that she being the mother had a preferential right to custody and the learned Court below having passed the impugned order on a correct appreciation of all re levant aspects the same ought not to be interfered with. 8. Mr. Bhattacharjee has emphatically urged that the petition filed before the learned Family Court under section 7 of the Act is per se not mainta inable in law and therefore the impugned order being ex-facie null and void is l iable to be set aside. According to the learned Sr. Counsel, the Act only provid es a forum of adjudication subject to the stipulations contained therein and the conduct of the proceedings before it is to be essentially guided by the substan tive law pertaining to the issues raised. He argued that the prayer for custody in isolation, where the parties are governed by the Hindu law is not maintainabl e in absence of any suit or proceeding for dissolution of marriage under the Act 1955 if the marriage between them is subsisting. He referred to section 25 of t he Act 1955 to buttress his arguments. Mr. Bhattacharjee submitted that as the m arriage between the parties had also been registered under the Special Marriage Act, 1954, in the alternative a suit or proceeding under section 38 is a necessa ry pre-requisite to entertain the prayer for custody. As in the meantime, the op posite party had withdrawn herself from the application for dissolution of marri age by mutual consent on 20/11/2007, no such proceeding was pending and, therefo re, her application solely for custody of the minor son before the learned Court below was not sustainable in law. Mr. Bhattacharjee further argued that as the ordinary residence of the minor in the instant case is at Tezpur, the opposite p arty’s application for his custody under the Act 1890 before the learned Family Court at Guwahati is, on the face of the records, in violation of the statutory mandate contained in section 9 thereof and being nonest in law, the impugned ord er dated 27/5/2008 is vitiated by want of jurisdiction and is thus liable to be adjudged as such. Referring to the notification No. JDJ.23/85/Pt/38 dated 10/3/199 9. 2 establishing the Family Court at Guwahati, the learned Sr. Counsel maintained that it is apparent therefrom that its territorial limits extends only to the Di strict of Kamrup. He, therefore, pleaded that in any view of the matter, the lea rned Family Court, Guwahati had no competence to entertain the application for c ustody and, therefore, on that count alone, the impugned order is liable to be d eclared ineffectual, null and void. 10. Without prejudice to the above, the learned Sr. Counsel argued t hat not only in view of the mental state of the opposite party, she was incapabl e of discharging her duties as the guardian of the minor child, her conduct of a bandoning him on 5/9/2007 was not only unbecoming of a mother but also is reflec tive of lack of attachment and responsibility towards him. The learned Sr. Couns el also assailed the order impugned on the ground that the learned Family Court in making its purported assessment of the contrasting claims for custody, the do cuments furnished by the petitioner were not considered by it. Moreover as the l earned Family Court did not record anything adverse against the health or intere st of the minor while in the custody of the petitioner, he being his natural gua rdian under the law there is no justifiable or persuasive reason to discontinue the present arrangement. The learned Sr. Counsel confirmed that the minor is pre sently in the custody of the petitioner and is well and secured in all respects.

11. Mr. Chaliha as against this has argued that the petitioner being the natural guardian of the minor, her application for the custody by itself wa s maintainable in law and no ancillary suit or proceeding as contemplated by the Act 1955 is an essential pre-condition. This is obvious, the learned Sr. Counse l urged, from the Explanation (g) appearing under section 7(1) of the Act. Mr. C haliha contended, referring to the pleadings of the petitioner that the ordinary residence of the minor is at Guwahati and, therefore, on that count as well the learned Family Court had jurisdiction to entertain and dispose of the applicati on for his custody. No objection with regard to the place of suing having been r aised by the petitioner at any earlier point of time, the learned Sr. Counsel ur ged that in face of section 21 of the Civil Procedure Code (hereafter referred t o as CPC), the same at this stage ought not to be entertained. He emphatically d ismissed the allegation of mental imbalance levelled against the opposite party and maintained the plea of wrong treatment to her at the instance of the petitio ner. Contending that the letters of the opposite party produced by the petitione r were with an ulterior design of questioning her mental state, Mr. Chaliha argu ed that the same manifestly testify her literary excellence. According to him, the petitioner who is a teacher of Economics in a School at Tezpur being the mot her and natural guardian is entitled to the custody of the minor son and the lea rned Court below having correctly evaluated the law as well as the facts relatab le to the issue, no case has been made out for the intervention of this Court an d, therefore, the petition is liable to be dismissed. 12. In reply Mr. Bhattacharjee while referring to the pleadings of t he parties contended that it is apparent therefrom that the place of ordinary re sidence of the minor is at Tezpur. On the aspect of want of jurisdiction of the learned Family Court, he argued that as the 1890 Act, a special legislation mand ates that the District Court having jurisdiction in the place of such residence of the minor would only be empowered thereunder to decide on the question of his /her guardianship as well as custody, the impugned order is per se nonest in law in the legislative framework of the said enactment. Section 21 of the CPC which deals with the place of suing does not come to the rescue of the opposite party , he urged. As the learned Family Court lacked inherent jurisdiction to deal wit h the issue of custody of the minor, its decision relating thereto is ab initio void. Drawing the attention of this Court to the written statement submitted by the petitioner before the learned Court below, Mr. Bhattacharjee urged that as a limited access of advocates thereto is permissible a liberal construction of th e pleadings ought to be made. He pointed out that at the first instance, the pet itioner had taken a plea against maintainability of the opposite party’s applica tion for custody and on that count as well section 21 of the C.P.C. is of no ava il to her. Mr. Bhattacharjee, to buttress his arguments placed reliance on the f ollowing decisions. Kiran Singh and others versus Chaman Paswan, AIR 1954 SC 340 , Murlidhar Shriniwas versus Gorakhram Sadhuram, Firm, Bombay and others, AIR 19 36 Nagpur 1, Shri Luxmi Janardan Jew and another versus State of West Bengal and others, AIR 1959 Kerala 403, P. N. Ramchandra Iyer versus S.V. Annapurni Ammal, AIR 1964 Kerala 269, Mustt. Firoza Begum versus Akhtaruddin Laskar, AIR 1963 As sam 193, Shri Amal Saha versus Smt. Basana Saha, 1987 (2) GLR 84, Rosy Jacob ver sus Jacob A. Chakramakkal, (1973) 1 SCC 840, Sumedha Nagpal versus State of Delh i and others, (2000) 9 SCC 745, Surya Dev Rai versus Ram Chander Rai and others, (2003) 6 SCC 675, Harshad Chiman Lal Modi versus DLF Universal Ltd. and another , (2005) 7 SCC 791, Raja Setrucharlu Ramabhadra Raju Bahadur and others versus M aharaja of Jeypore and others, AIR 1919 Privy Council 150. 13. In response, Mr. Chaliha submitted that as an application before the learned Family Court was only for custody and not for guardianship, the con straints of section 9 of the 1890 Act are not attracted and, therefore, the lear ned Family Court had the competence and jurisdiction to deal with the matter. Th e following decisions are pressed into service by Mr. Chaliha. Shah Harichand Ra tanchand versus Virbbal and others, AIR 1974 Gujarat 150 and Subhash Chanda vers us Sarbajaya Sen (Chanda), 2002 (1) GLT 619. 14. The pleadings of the parties and the arguments advanced have rec eived the thoughtful consideration of this Court. There is no wrangle at the Bar that the application filed by the opposite party before the learned Family Cour t has been under section 7 of the Act 1890 for the interim custody of the minor son of the parties. No prayer for appointment of the opposite party as the guard ian of the minor noticeably has been made. The parties are Hindus and, therefore , amongst others are governed by the Hindu Minority and Guardianship Act, 1956 ( hereafter referred to as the Act 1956). Section 4 (2) of the Act 1890 defines (cid:28)g uardian (cid:29) to mean all persons having the care of the person of a minor or of his property or of both his person and property. Section 7 of the said Act empowers the Court as defined in section 4(5) to appoint a guardian of his person or prop erty or both or declare a person to be so. Section 9 requires that such an appli cation has to be made to the District Court having jurisdiction in the place whe re the minor ordinarily resides. Section 12 recognizes the power of such a Court to direct the person having the custody of the minor to produce him or cause hi m to be produced at such place and time and before such person as it appoints an d to make such order for the temporary custody and protection of the person or p roperty of the minor as it thinks proper. Act 1956, which is a subsequent legislation, defines a guardian under section 4(b) as follows: (cid:28)4(b) & & (cid:28)guardian (cid:29) means a person having the care of the person of a minor or of his property or of both his person and property, and includes- (i) (ii) (iii) (iv) any court of wards; (cid:29) a natural guardian, a guardian appointed by the will of the minor’s father or mother, a guardian appointed or declared by a court, and a person empowered to act as such by or under any enactment relating to Section 6 enumerates the natural guardians of a Hindu in respect of his person a s well as property. They are in the following order:- (a) in the case of a boy or an unmarried boy or an unmarried girl-the father , and after him, the mother: provided that the custody of a minor who has not co mpleted the age of five years shall ordinarily be with the mother; (b) ther, and after her, the father; (c) in case of an illegitimate boy or an illegitimate unmarried girl- the mo in the case of a married girl- the husband. Section 5 of the Act 1956 propounds the overriding effect of the provisions ther eof over any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before it. It further provides that any o ther law in force immediately before the commencement of the Act would cease to have effect in so far as it is inconsistent therewith. 15. It is, therefore, obvious that after the enactment of the Act 19 56, no one can be acknowledged to be the guardian of a Hindu minor unless he or she comes within the categories as detailed in section 4(b) thereof. So far as n atural guardians of a Hindu minor are concerned, it is manifest from section 6(a ) that the father is a natural guardian of a child and its only after him i.e. a fter his death or removal by a Court that the mother can be the natural guardian . In other words, if both the parents of a minor are living, the mother cannot p er se claim to be a natural guardian to the exclusion of the father unless and u ntil a Court of competent jurisdiction declares her to be so. The legislative or dainment that custody of a minor less than five years of age would ordinarily be with the mother does not make any difference. To put it differently if the fath er of a Hindu minor is alive, section 6(a) of the Act 1956 does not confer a ind efeasible right in the mother to claim his/her custody even if he/she has not c ompleted the age of five years. The word (cid:28)ordinarily (cid:29) is of definitive significa nce casting an obligation on the Court to examine in the facts of every given ca se to determine as to whether the custody of such a minor should be left with th e mother though the father is alive and is the natural guardian ahead in order.

16. Their Lordships of the Privy Council in Annie Besant versus Nara yaniah, 1914 PC 41 ruled that no order declaring a guardian can be made during t he father’s lifetime unless in the opinion of this Court, he is unfit to be the guardian of the minor concerned. The terminology used to Section 6(a) of the Act 1956 therefore makes it explicit that the father as the natural guardian of the minor cannot be divested of the status conferred in him by law unless the Court is satisfied that he is unfit of such recognition.

17. I respectfully subscribe to the views expressed by their Lordshi p’s of the Kerela High Court in P. N. Ramchandra Iyer, supra, and Vasudevan, sup ra, to the above effect. An application for interim custody of a Hindu minor under the A 18. ct 1890 by his/her mother without seeking a declaration for appointing her as th e guardian to displace the living father is, therefore, not contemplated thereun der. The application filed by the opposite party before the learned Family Court for custody alone is thus incomplete and not as envisaged by this enactment.

19. The Act i.e. the Family Court Act, 1984 is a legislative instrum ent for the establishment of Family Courts with a view to promote conciliation i n, and secure speedy settlement of disputes relating to marriage and family affa irs and for matters connected therewith. Section 3 thereof provides that for the purpose of exercising the jurisdiction and powers conferred on a Family Court, the State Government, after consultation with the High Court, and by notificatio n would, as soon as may be after the commencement of this Act, establish for eve ry area in the State comprising city or town whose population exceeds one millio n a Family Court and may establish such Courts for such other areas as it may de em necessary. As is evident from the notification No. JDJ.23/85/Pt./38 dated 10/ 3/1992 in exercise of such powers, the Government of Assam had established the F amily Court, Guwahati, delineating its territorial jurisdiction to be that of Ka mrup, locating its place of sitting at Guwahati. As would be apparent on the fac e of the records, the learned Family Court, Guwahati, is not possessed of any ju risdiction to try any of the matters enumerated in section 7 of the Act beyond t he said limits. Section 7 which comprehends the functional contours of a Family Court enjoins that it would have and exercise all the jurisdiction exercisable b y any District Court or any subordinate civil court under any law for the time b eing in force in respect of suits and proceedings of the nature referred to in t he explanation thereto and would be deemed for the purpose of such jurisdiction a District Court or as the case may be such subordinate civil Court for the area to which its jurisdiction extends. The Family Court, therefore, is a judicial f orum replacing a district court or any other subordinate court in respect of sui ts and proceedings listed in the explanation to section 7 for the area in which such a district court or a subordinate civil court before its (Family Court) con stitution used to function. Section 8 excludes the jurisdiction of any district court or a subordinate civil court in respect of any suit or proceeding of the n ature referred to in the explanation to section 7 where a Family Court has been established for such area. Axiomatically, therefore, for areas beyond the territ orial limits of the Family Court, the existing district court or subordinate civ il court would continue to exercise its jurisdiction in suits or proceedings con templated in explanation to section 7 as well. Section 10 clarifies that subject to the other provisions of the Act and the Rules framed thereunder, the provisi ons of the CPC and of any other law for the time being in force would apply to t he suits or proceedings except those referred to therein and that a Family Court would be deemed to be a civil court and would have all such powers of such cour ts. Logically, therefore, for every suit or proceeding to be tried by a Family Court the conduct thereof has to be in compliance of the substantive law relatab le thereto. This is more so as the Act does not provide otherwise. A suit or pro ceeding in relation to the guardianship of the person or the custody of or acces s to any minor as envisaged in Clause (g) of the explanation to section 7, there fore, has to be essentially governed by the provisions of the legislations on th e subject. Having regard to the relationship of the parties to the minor in 20. volved in the instant case, the application of the opposite party for guardiansh ip and/or the custody of his person or property has to be indispensably made bef ore a district court having jurisdiction in the place where the minor ordinarily resides. Competing endeavours had been made to demonstrate the place of ordinar y residence of the minor son. Whereas the petitioner has strived to establish th at it is Tezpur, the opposite party has spared no pains to substantiate that it is Guwahati in the District of Kamrup. On a scrutiny of the address of the parti es, more particularly of the petitioner who presently is the custodian of the mi nor as available from the pleadings, it is not possible to hold that he (minor) is an ordinary resident of Guwahati. In his pleadings, the petitioner has consis tently referred to his permanent residence to be at Tezpur though he has disclos ed his place of stay also in Guwahati. The minor admittedly is a student of a sc hool at Tezpur. The fact that the petitioner lives jointly with his parents, in the opinion of this Court, does not dislodge his custody of the minor. The mater ials on record unequivocally proclaim that at all relevant times the ordinary re sidence of the minor has been at Tezpur beyond the territorial limits of the Fam ily Court, Guwahati. 21. That for an application under section 9 of the Act 1890, the dis trict court having jurisdiction over the place where the minor ordinarily reside s is the only competent forum has been authoritatively held by this Court in Mus tt. Firoza Begum, supra. 22. The decision in Subhash Chanda, supra, does not lay down any leg al proposition in this regard and is therefore of no relevance for the adjudicat ion of the issue in hand. The plea on behalf of the opposite party that the prayer made be 23. fore the learned Family Court being one for custody alone and thus the place of the residence of the minor is irrelevant, lacks substance. She being the mother, in absence of any declaration to be the guardian of the minor during the lifeti me of the petitioner, he cannot plainly be divested of the custody of the minor aged less than five years in absence of any cogent and persuasive consideration warranting that arrangement. As has been alluded hereinabove, the Hindu mother as a natural guardian though ordinarily entitled to the custody of a minor who i s aged less than five years, during the lifetime of the father has to establish in unambiguous terms that the interest of the minor justifies transfer of his/he r custody from that of the father to her. In the facts and circumstances of the case, the opposite party’s application before the learned Family Court for custo dy of the minor son is in a forum not contemplated by the Act 1890. As determine d hereinabove, the application for custody alone is incomplete as well. 24. The Apex Court in Shah Harshad Chimam Lal Modi versus DLF Univer sal Ltd. and another, (2005) 7 SCC 791, while dwelling on the applicability of s ection 21 of the Code classified the jurisdiction of a Court into three categori es namely (i) territorial jurisdiction or local jurisdiction, (ii) pecuniary jur isdiction and (iii) jurisdiction over the subject matter. It held that so far as the territorial and pecuniary jurisdiction are concerned, objection to such jur isdiction has to be taken at the earliest possible opportunity and in any case a t or before the settlement of issues. It further held the view that jurisdiction as to subject matter is totally different and where a Court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by the statute, charter or commission, it cannot take up the case or matter and that an y order passed by the Court wanting in such jurisdiction is a nullity. It recall ed its enunciation to the above effect in Bahrein Petroleum Co. versus P. J. Pap pu, AIR 1966 SC 634 and Kiran Singh, supra that where a court exercises a jurisd iction it does not possess, the decree by it is non est and its invalidity can b e set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. Their Lordships of the P rivy Council in Raja Setrucharlu Ramabhadra Raju Bahadur, supra, distinguished t he objection with regard to the place of suing from the one pleading nullity on the ground of want of jurisdiction. 25. In Murlidhar Shrinivas(supra) , it was observed that section 21 of the Code applies to a situation where a court is competent to try a case and the parties without objection join issue and go to trial thus debarring any one of them to dispute its jurisdiction subsequent thereto. Their Lordship’s of the Nagpur High Court, however, elucidated that the above provision of the code has no applicability to a case in which the court lacked in jurisdiction over the su bject matter of the action and the decree passed by it would be ab initio void. 26. Having regard to the framework of the 1890 Act and the unmistaka ble prescript of section 9 thereof, I am of the unhesitant opinion that in the f acts and circumstances of the case, the Family Court, Guwahati lacked in inheren t jurisdiction to entertain the application for custody of the minor whose place of ordinary residence at all relevant times had been at Tezpur. The objection w ith regard to the want of jurisdiction of the learned Family Court cannot be syn onymised with that of place of suing simpliciter as contemplated in section 21 o f the Code. Act 1890, a special legislation having prescribed a forum with the p rocedure for appointment of a guardian of a minor and custody of his person and property, it is the Court as comprehended in section 9 thereof that would have e xclusive jurisdiction in the matter. As the issue of guardianship and the custod y of person and property of the minor would be involved, in the estimate of this Court, the learned Family Court lacked jurisdiction over the subject matter i.e . the minor and, therefore, the impugned order has to be held invalid and non es t in law. The opinion expressed by their Lordships of the Gujarat High Court in Shah Harichand Ratanchand, supra, is respectfully differed from. In view of the above conclusion, it is not considered essential to dilate on the other contentions. The petition is thus allowed. The impugned o rder dated 27/5/2008 passed by the learned Family Court is set aside. No costs.