Back
Karnataka High Court
Rohit Dandekar - Appellant
Versus
Raj Kavitha - Respondent
Decided On : 08-21-03
M.F.A. : 1002 of 2001
FAMILY COURTS ACT, 1984-
Section 19 and Hindu Marriage Act, 1955 - Section 26 & 28 - Custody of the minor child -I A filed by the appellant for custody of the ward - Family Court passing decree - wife filing I A for custody - fair opportunity given for both the parties - appellant not seeking any opportunity to lead evidence or to cross-examine the respondent - appellant s I A dismissed, respondent s I A allowed - whether the order suffers from any infirmity? No. Whether the order on I A is an interlocutory order? No. Appeal maintainable.
[S. R. Nayak & S. B. Majage, JJ.] - In the absence of such prescribed procedure under the statute, the only thing to be considered is whether the procedure adopted by the learned Family Judge is unfair and in violation of the principles of natural justice. Both the parties were given fair opportunity of being represented and to state their cases. It is also pertinent to notice that the Appellant did not seek any opportunity before the Family Court either to lead evidence in addition to what he has stated in his pleading or to cross-examine the respondent. Having failed to seek such opportunity before the Family Court, it should not lie in the mouth of the Appellant now to contend that the Family Court suo motu ought to have given him an opportunity and called upon him to adduce evidence. Having heard the counsel for both the parties for considerable time, the court was fully satisfied that the Family Court has not committed any irregularity or illegality in entrusting the custody of the minor child to the mother. The learned Family Court Judge has pointed out that the child has been staying with the mother from October, 1998, and the appellant-father never bothered to extend any support, financially or otherwise, to take care of the child till date.
Cases Referred : 6 QBD 75; AIR 1977 SC 2185; 1978 B.L.J. 670 at pp 671, 672 (Pat); AIR 1949 F.C.I; 1947 F.C.R. 180; (189) 1 QB 734; AIR 1978 SC 47; AIR 1980 SC 962; ILR 1990 Kar 2542; ILR 2001 Kar 448.
Custody of minor child
HINDU MARRIAGE ACT, 1955-
Section 26 & 28 and Family Courts Act, 1984 - Section 19 -Custody of the minor child - I A filed by the appellant for custody of the ward - Family Court passing decree - wife filing I A for custody - fair opportunity given for both the parties - appellant not seeking any opportunity to lead evidence or to Cross - examine the respondent - appellant s I A dismissed, respondent s I A allowed - whether the order suffers from any infirmity? No.
[S. R. Nayak & S. B. Majage, JJ.] - In the absence of such prescribed procedure under the statute, the only thing to be considered is whether the procedure adopted by the learned Family Judge is unfair and in violation of the principles of natural justice. Both the parties were given fair opportunity of being represented and to state their cases. It is also pertinent to notice that the Appellant did not seek any opportunity before the Family Court either to lead evidence in addition to what he has stated in his pleading or to cross-examine the respondent. Having failed to seek such opportunity before the Family Court, it should not lie in the mouth of the Appellant now to contend that the Family Court suo motu ought to have given him an opportunity and called upon him to adduce evidence. Having heard the counsel for both the parties for considerable time, the court fully satisfied that the Family Court has not committed any irregularity or illegality in entrusting the custody of the minor child to the mother. The learned Family Court Judge has pointed out that the child has been staying with the mother from October, 1998, and the appellant-father never bothered to extend any support, financially or otherwise, to take care of the child till date.
Cases Referred : 6 QBD 75; AIR 1977 SC 2185; 1978 B.L.J. 670 at pp 671, 672 (Pat); AIR 1949 F.C.I; 1947 F.C.R. 180; (189) 1 QB 734; AIR 1978 SC 47; AIR 1980 SC 962; ILR 1990 Kar 2542; ILR 2001 Kar 448.
( 1 ) BOTH the Appeals are preferred by Dr. Rohit Dandekar, who is the father of the ward, Paranukush by name, being aggrieved by the common Judgment and Order dated 6-2-2001 made on I. As 5 and 10 in M. C. No. 116 of 1999 on the file of the Court of the Principal Judge, Family Court, Bangalore, for short 'family Court'. The marriage between Dr. Raj Kavitha, the respondent herein and Dr. Rohit Dandekar was annulled by the Family Court on the ground of cruelty by Judgment and Decree dated 27-10-2000 and the said decree was allowed to become final.
( 2 ) IT appears when the proceedings were pending on the file of the Family Court, I. A. No. 5 was filed by the Appellant herein under S. 26 of the Hindu Marriage Act, 1955 seeking custody of the ward. The Family Court, however, did not pass any order on the application either during pendency of the proceedings or at the time of passing the final decree. After the decree was passed on 27-10-2000, the Respondent mother filed I. A. 10 under S. 26 of the Hndu Marriage Act, seeking custody of the ward. Both the applications were clubbed and heard together by the learned Family Judge and by the impugned common order, dismissed I. A. No. 5 filed by the father and allowed I. A. No. 10 filed by the mother.
( 3 ) WHILE doing so, the learned Family Court Judge, however, permitted the Appellant to visit the ward in Bangalore for a period of 15 days during summer vacation.
( 4 ) THESE two appeals are preferred by the Appellant under S. 19 of the Family Courts Act, 1984. Sri Babu Heddur Shetty, learned Counsel for the Respondent, at the threshold, raised a preliminary objection regarding maintainability of the appeals by contending that the impugned order is an "interlocutory order" within the meaning of that term and, therefore, no appeal would lie to this Court under S. 19 of the Family Courts Act. On the other hand, Sri R. B. Sadashivappa, learned counsel for the Appellant, would point out that the impugned order came to be made by the Family Court on an application filed by the mother, after passing of the final decree in Matrimonial Case No. 116 of 1999 on 27-10-2000 and, therefore, such order could not be regarded as an Interlocutory Order for the purpose of applying prohibition contained in sub-sec. (1) of S. 19 of the Act. Having regard to these rival contentions urged by the learned counsel for the parties, and since the preliminary objection raised before us goes to the root of the matter, it is appropriate for us, first, to decide the question of maintain ability of the appeals.
( 5 ) SUB-SECTION (1) of S. 19 of the Family Courts Act, 1984 reads as follows :-"19. . . . . Appeal - (1) Save as provided in sub-sec. (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. "
( 6 ) SUB-SECTION (2) of S. 28 of the Hindu Marriage Act, 1955 reads as follows :-" (2) Orders made by the Court in any proceedings under this Act under S. 25 or S. 26 shall, subject to the provisions of sub-sec. (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. "
( 7 ) IN our considered opinion, the provisions of sub-sec. (1) of S. 19 of the Family Courts Act, 1984 as well as the provisions of sub-sec. (2) of S. 28 of the Hindu Marriage Act, 1955, are plain, precise, unambiguous and clear in content and meaning, and they do not admit more than one meaning. The word 'every' as an adjective means "each one or single of a number or collection; omitting none; whole of it; all of it". The only meaning flowing from the provisions of sub-sec. (1) of S. 19 of the Family Courts Act read with sub-sec.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
