2021 Supreme(SC) 150

SUPREME COURT OF INDIA
A.M. KHANWILKAR, B.R. GAVAI, KRISHNA MURARI, JJ.
AMAN LOHIA - APPELLANT
VERSUS
KIRAN LOHIA - RESPONDENT
TRANSFERRED CASE (CIVIL) NO. 25 OF 2021
Decided On : 17-03-2021

(1) Guardianship Petition – Family Court is obliged to enquire into matter as per procedure prescribed by law – It does not have plenary powers to do away with mandatory procedural requirements in particular which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides.
(2) Abandonment of proceedings has to be express or even if it is to be implied, circumstances must be so strong and convincing that drawing such inference is inevitable.

Headnote:

(A) Family Courts Act, 1984 – Section 7 – Guardians and Wards Act, 1890 – Section 7 – Guardianship Petition – Family Court is obliged to enquire into matter as per procedure prescribed by law – It does not have plenary powers to do away with mandatory procedural requirements in particular which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides – Nature of inquiry before Family Court is adjudicatory – It is obliged to resolve rival claims of parties and while doing so, it must adhere to norms prescribed by statue in that regard and also foundational principle of fairness of procedure and natural justice – 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 parties to prove facts asserted by concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision – For doing this, Family Court is expected to give notice to respective parties and provide them sufficient time and opportunity to present their claim in form of pleadings and evidence before determination of dispute – Both enactments provide for procedure in form of disclosures, declarations and assertions and its refutations by other party opposing the claim, whereafter matter proceeds for recording of evidence followed by declaration or order passed by Court – Intrinsic in all these steps is to guarantee fair opportunity to all concerned. (Paras 27, 29 and 31)

(B) Guardians and Wards Act, 1890 – Section 7(g) – Family Courts Act, 1984 – Section 7 – Civil Procedure Code, 1908 – Order I Rule 10 read with Order XXIII Rule 1 read with Section 151 – Guardianship Petition – Family Court proceeded on assumption that appellant had abandoned proceedings – There can be no legal presumption about factum of abandonment of proceedings – Abandonment has to be express or even if it is to be implied, circumstances must be so strong and convincing that drawing such inference is inevitable – For that, Court ought to have adverted to material/evidence indicating that appellant/petitioner was duly served with applications filed by respondent and that he was fully aware about discharge of Counsel representing him in proceedings including about service of Court notices – Even if Court was to infer abandonment, it could at best have dismissed petition for default in exercise of power under Order IX Rule 8 of CPC – Court could not have entertained transposition application filed by respondent ex parte and that too without ensuring that it was duly served on appellant consequent to notice issued thereon by Court – Appellant is justified in contending that impugned judgment and orders came to be passed by Family Court in a tearing hurry – Conduct of appellant frowned upon by High Court in habeas corpus petition or contempt petition, cannot be made sole basis to determine factum of fitness or otherwise of appellant for being a guardian of 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, childcentric approach with paramount welfare and interest of minor child – Those are matters which Family Court ought to examine after giving due opportunity to both sides on their own merits and in accordance with law – Ex parte impugned judgment and orders passed by Family Court set aside – However, that does not mean that custody of minor child needs to be restored to father (appellant) forthwith – That issue will have to be decided finally by Family Court in proceedings remanded in terms of this order. (Paras 35, 36, 40, 41 and 42)

Facts of the case:

Both the parties have resorted to multiple proceedings against each other, essentially emanating from discordant marital relationship between them. Besides the guardianship petition filed by the appellant, respondent had filed habeas corpus petition on two occasions and because of non-compliance of 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 judgment of the High Court in habeas corpus petition(s) and contempt petition(s).

Findings of Court:

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 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.

Result : Appeal Partly allowed.