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2014 Supreme(Chh) 423
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
T.P. Sharma and Inder Singh Uboweja, JJ.
Hemlata Sahu – Appellant
Vs.
Chetan Das Sahu – Respondent
First Appeal (M) No. 113 of 2013
Decided On: 16.12.2014
For Appellant/Petitioner/Plaintiff:B.P. Sharma and Vivek Chopda, Advocates
For Respondents/Defendant:Fouzia Mirza, Advocate
Headnote:
Hindu Marriage Act, 1955 - Section 13 - Family Courts Act, 1984 - Section 19 - challenged legality - trial Court – divorce -Learned counsel also relied upon the matter of Mausami Moitra Ganguli Vs. Jayant Ganguli (2008) 7 SCC 673 in which the Supreme Court has held that welfare of minor is paramount consideration in a matter of custody of minor under the provisions of the Guardians and Wards Act, 1890. Learned counsel also placed reliance in the matter of Nil Ratan Kundu and another Vs. Abhijit Kundu (2008) 9 SCC 413 in which the Supreme Court has held that welfare of minor is paramount consideration in a matter of custody of minor under the provisions of the Guardians and Wards Act, 1890 and Section 26 of the Hindu Marriage Act, 1955. Learned counsel also relied upon the matter of Ashish Ranjan Vs. Anupma Tandon and another (2010) 14 SCC 274 in which the Supreme Court has held that welfare of child is paramount consideration in the matter of custody of minor under the provisions of the Guardians and Wards Act, 1890 and a party cannot be rendered remedy-less – Held, As held in the matters of Chand Dhawan and Arun Lata (supra), relied upon by learned counsel for the respondent, petition under Section 25 of the Act or Section 26 of the Act is only maintainable in a proceeding or after passing of the decree. As held by the Supreme Court in the matter of Kandapazha Nadar (supra), withdrawal of suit without any adjudication does not constitute decree - In the present case, suit for dissolution of marriage by a decree of divorce filed by the respondent has been dismissed as withdrawn. On the date of filing petition under Section 26 of the Act, any proceeding under the provisions of the Act was not pending. Dismissal of case as withdrawn is not final adjudication of rights and obligations of the parties amounting to decree. Undisputedly, the Court has not passed any decree and the Court has not decided the rights and obligations of the party finally. The appellant is also not remedy-less, still she is at liberty to redress her grievance under the Guardians and Wards Act, 1890 or in the proceeding under the provisions of the Hindu Marriage Act, 1955, filed at her instance - As held by the Allahabad High Court in the matter of Mt. Hasina Begum (supra), return of plaint for presentation to proper court is a decree within the definition of Section 3(14) of the Agra Tenancy Act (3 of 1926) which makes the provision that disposal of proceeding is decree. Undisputedly, it was not a proceeding under the provisions of the Agra Tenancy Act (3 of 1926) which makes special provision relating to decree. Mt. Hasina Begums case (supra) is not applicable to the facts of the present case. Likewise, Dharam Singhs case (supra) has also no application in the present case – Appeal dismissed
T.P. Sharma, J.
1. By this appeal under Section 19 of the Family Courts Act, 1984, the appellant has challenged legality and propriety of the order dated 24-10-2013 passed by the 1st Additional Principal Judge, Family Court, Raipur in Civil Suit No. 194-A/2013, whereby the trial Court has dismissed the application filed under Section 26 of the Hindu Marriage Act, 1955 (for short 'the Act'), for custody of children, on behalf of the appellant. As per the appeal and the order impugned, the respondent had filed Civil Suit No. 229-A/2012 for dissolution of marriage by a decree of divorce against the appellant. Subsequently, the respondent has filed an application for withdrawal of the petition filed under Section 13 of the Act for dissolution of marriage by a decree of divorce and vide order dated 16-8-2012 passed by the Principal Judge, Family Court, Raipur, the same has been dismissed as withdrawn. After dismissal of such petition as withdrawn, the appellant has filed an application under Section 26 of the Act for custody of her children Yukti and Kaustubh. After providing opportunity of hearing to the parties, the application for custody of children has been dismissed by the trial Court on the ground that after withdrawal of main petition for dissolution of marriage by a decree of divorce, nothing was pending before the trial Court, therefore, the petition under Section 26 of the Act was not maintainable.
2. We have heard learned counsel for the parties, perused the order impugned and order dated 16-8-2012 passed in Civil Suit No. 229-A/2012.
3. Learned counsel for the appellant submitted that in terms of Section 26 of the Act, the appellant is entitled for custody of children during the pendency of petition under the Hindu Marriage Act, 1955 or after the decree. Learned counsel further submitted that petition filed under Section 13 of the Act by the respondent has been withdrawn by the respondent which was final adjudication of dispute and the respondent is precluded from filing fresh petition on the same ground, therefore, the order of withdrawal amounts to decree and the petition filed under Section 26 of the Act was maintainable before the trial Court, but the trial Court has illegally dismissed the petition.
4. Learned counsel for the appellant placed reliance in the matter of Mr. Hasina Begum and others Vs. Abdul Hafiz AIR 1934 Allahabad 100 (1) in which a Division Bench of the Allahabad High Court has held that return of plaint for presentation to proper Court is a decree within the meaning of Section 3(14) of the Agra Tenancy Act (3 of 1926), on the ground that Section 3(14) of the said Act provides, disposal of suit on the preliminary ground is a decree. Learned counsel further placed reliance in the matter of Dharam Singh Vs. Thakur Tikam Singh AIR 1938 Allahabad 124 in which the Allahabad High Court has held that order passed under Section 47 of the Agra Tenancy Act (3 of 1926) is not a decree under the said Act. Learned counsel also placed reliance in the matter of Madhavan Nair Vs. Ravindran Unni 1992 Law Suit (Kar) 155 in which the High Court of Karnataka has held that after passing decree under the provisions of the Hindu Marriage Act, 1955, application under Section 26 of the Act for custody of child is maintainable only before such Court. Learned counsel relied upon the matter of Malaya Das (Nee) Ghosh Vs. Basudeb Das 1996 Law Suit (Cal) 258 in which the Calcutta High Court has held that application under Section 26 of the Act is tenable in a proceeding before the Family Court under the provisions of the Hindu Marriage Act, 1955 and even after a decree. Learned counsel further relied upon the matter of Anita Sharma Vs. Rajendra Kumar 1997 (11) MPJR 111 in which the High Court of Madhya Pradesh has held that the Judge exercising jurisdiction under the Hindu Marriage Act is competent to pass order under Section 26 of the Act in any proceeding pending before it. Learned counsel also relied upon the matter of
