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IN THE HIGH COURT OF ALLAHABAD
D. K. SETH
ARUN LATA - Appellant
Versus
CIVIL JUDGE, BULANDSHAHAR - Respondents
C. M. W. P. 26734 Of 1993
Decided On : 05/23/1997
HINDU MARRIAGE ACT - SECTION 26 - CUSTODY OF CHILDREN - JURISDICTION - FAMILY COURTS ACT, 1984 - SECTION 7(1)(G) - SCOPE - APPEAL - SECTION 28 - APPLICABILITY - WRIT PETITION - MAINTAINABILITY - ARTICLE 226/227 OF THE CONSTITUTION OF INDIA - AMENDMENT OF WRIT PETITION - SCOPE AND PERMISSIBILITY - DELAY IN FILING AMENDMENT - CONVERSION OF WRIT PETITION INTO REVISION PETITION - POWER OF HIGH COURT - ARTICLE 227 OF THE CONSTITUTION OF INDIA - EXERCISE OF DISCRETION - ADEQUATE ALTERNATIVE REMEDY - EXISTENCE OF - EFFECT ON EXERCISE OF DISCRETION - INTERPRETATION OF STATUTES - PLAIN MEANING RULE - APPLICATION - JURISDICTION OF FAMILY COURT - LIMITS - GUARDIANSHIP AND WARDS ACT - HINDU MINORITY AND GUARDIANSHIP ACT - SCOPE AND APPLICABILITY - WELFARE OF CHILD - PARAMOUNT CONSIDERATION - CUSTODY OF CHILD - FACTORS TO BE CONSIDERED - AGE OF CHILD - RELEVANCE - CHANGING SOCIAL NORMS - IMPACT ON CUSTODY ORDERS - JUDICIAL REVIEW - SCOPE AND EXTENT - JURISDICTIONAL ERRORS - CORRECTION BY HIGH COURT - POWER OF HIGH COURT UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA - EXERCISE OF DISCRETION - FACTORS TO BE CONSIDERED.
Fact of the Case:
The petitioner, a wife, filed a writ petition challenging the orders passed by the Family Court granting custody of her minor child to her husband. The petitioner contended that the Family Court did not have jurisdiction to entertain the husband's application for custody under Section 26 of the Hindu Marriage Act, 1955, as the proceeding was not pending before the Court. The petitioner also challenged the ex parte decree of divorce granted to the husband and the subsequent orders passed in execution thereof.
Finding of the Court:
The Court held that the Family Court did not have jurisdiction to entertain the husband's application for custody under Section 26 of the Hindu Marriage Act, 1955, as the proceeding was not pending before the Court. The Court also held that the ex parte decree of divorce granted to the husband was void ab initio as it was obtained without notice to the petitioner. The Court further held that the subsequent orders passed in execution of the ex parte decree were also void. The Court allowed the writ petition and set aside the impugned orders.
Issues: 1. Whether the Family Court had jurisdiction to entertain the husband's application for custody under Section 26 of the Hindu Marriage Act, 1955? 2. Whether the ex parte decree of divorce granted to the husband was valid? 3. Whether the subsequent orders passed in execution of the ex parte decree were valid?
Ratio Decidendi: 1. The jurisdiction of the Family Court is limited to the suits and proceedings specified in Section 7(1) of the Family Courts Act, 1984. An application for custody under Section 26 of the Hindu Marriage Act, 1955, is not a suit or proceeding specified in Section 7(1) of the Family Courts Act, 1984. Therefore, the Family Court did not have jurisdiction to entertain the husband's application for custody. 2. An ex parte decree of divorce granted without notice to the respondent is void ab initio. 3. Orders passed in execution of a void decree are also void.
Final Decision: The Court allowed the writ petition and set aside the impugned orders.
( 1 ) AN application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20/03/1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12/05/1997. On 25/04/1997, both the learned counsel pointed out that the matter was fixed on 24/04/1997 but by mistake the date was noted as 12/05/1997 in the order dated 9/04/1997. Accordingly the matter was fixed on 9/05/1997 instead of 12/05/1997 by an order dated 25/04/1997 by the consent of the parties for the reasons recorded in the order dated 25/04/1997.
( 2 ) ON 9/05/1997, an application for amendment was filed in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24/04/1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20/03/1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on days list for hearing together with the application for amendment and the application for vacating the interim order.
( 3 ) SINCE the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.
( 4 ) THE opposite party No. 2 Arvind Kumar and the petitioner Arun Lata were married on 4/05/1980. Arvind Kumar is a lawyer practising at Bulandshahr. He instituted a suit for divorce being Divorce petition No. 208 of 1981 in the Court of Civil Judge, Bulandshahr on 23/07/1981. A child out of the wedlock was born on 15/03/1982. The suit for Divorce was de-creed ex parte on 5/05/1982 (Annexure 1 ). In the said suit, no interim order was passed with regard to the custody or maintenance of the child. Neither any provision with regard thereto was incorporated in the decree. On 23/05/1994, Arvind Kumar file
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