Mayank Bhargava vs Jyoti

FAO No. 9640 of 2014 (O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 9640 of 2014 (O&M)

Date of Decision: 1.12.2014

Mayank Bhargava

....Appellant.

Versus

Jyoti Bhargava

...Respondent.

CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.

HON'BLE MRS. JUSTICE SNEH PRASHAR.

PRESENT: Mr. Vikram Punia, Advocate for the appellant.

AJAY KUMAR MITTAL, J.

1. This appeal arises out of the order dated 17.11.2014 passed by the District Judge, Family Court, Gurgaon, whereby the application filed by the appellant under Order 7 Rule 11 of the Code of Civil Procedure read with Section 10 of the Family Courts Act, 1984 for rejection of the petition filed under Section 26 of the Hindu Marriage Act, 1955 (in short "the Act") read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardianship and Wards Act, 1890, for the full custody of minor Yuvraj, was dismissed.

2. The marriage between the parties was solemnized on 18.2.2001 at Sonepat as per Hindu rites and ceremonies. Out of the said wedlock, a son, namely, Yuvraj was born on 31.5.2006. After the marriage, the respondent was subjected to mental trauma and cruelty by the appellant and his family members. The marriage of the parties was broken down completely as the appellant and his family members

GURBACHAN SINGH

2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -2- wanted divorce. The respondent agreed for the divorce and hence a petition under Section 13-B of the Act was filed for a decree of divorce by mutual consent. Accordingly, the trial court vide judgment and decree dated 24.1.2011 dissolved the marriage of the parties by a decree of divorce by mutual consent. By way of said judgment and decree, the custody of the minor child Yuvraj was given to the appellant and the respondent was given visitation rights only. Thereafter, the respondent filed the petition for modifying the judgment dated 24.1.2011 to the extent that exclusive custody of the minor Yuvraj be granted to her and the appellant, his servants, associates, relatives, friends etc. be restrained from forcibly taking away minor Yuvraj from her custody and she be appointed as his guardian for all purposes. However, during the pendency of the said petition, an application under Order 7 Rule 11 of the Code of Civil Procedure read with Section 10 of the Family Courts Act, 1984 for rejection of the petition was filed by the appellant. The trial court vide order dated 17.11.2014 dismissed the said application.

Hence, the present appeal.

3. Learned counsel for the appellant submitted that the trial court had dismissed the application filed under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the petition filed under Section 26 of the Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardianship and Wards Act, 1890, for the custody of minor Yuvraj. Relying upon Inderjit Singh Grewal v.

State of Punjab and another (2011) 12 SCC 588, P. Madhavan Nair and other v. K. Ravindran Unni, AIR 1993 Karnataka 203 and Smt.

Sibani Banerjee v. Tapan Kumar Mukherjee, AIR 1990 Calcutta 4, it was urged that separate petition under Section 26 of the Act was not

GURBACHAN SINGH

2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -3- maintainable and the respondent could only file an application for variation of the order of custody of child in earlier petition.

4. After hearing learned counsel for the appellant, we do not find any merit in the appeal.

5. Whether a separate petition under Section 26 of the Act for variation of the order of custody of child was maintainable or an application in the earlier petition was required to be filed is the core issue arising in this appeal?

6. In Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409, the Supreme Court held that despite grant of divorce by mutual consent where orders of custody were passed under Section 26 of the Act, the same could be modified as considerations of welfare of the child were not static nor could they be squeezed in a strait jacket. It is the welfare of the child and not the rights of the parents under statute which are the paramount consideration. Also the custody orders are not rigid and final.

They are in the nature of interim orders. With the passage of time, the court is entitled to modify the order in the interest of the minor child even if the orders are based on consent. The conclusion reads thus:-

"19. Even though the aforesaid principles have been

laid down in proceedings under the Guardians and

Wards Act, 1890, these principles are equally

applicable in dealing with the custody of a child under

Section 26 of the Act since in both the situations two

things are common; the first, being orders relating to

custody of a growing child and secondly, the

paramount consideration of the welfare of the child.

Such considerations are never static nor can they be

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2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -4-

squeezed in a strait jacket. Therefore, each case has

to be dealt with on the basis of its peculiar facts.

20. In this connection, the principles laid down by

this Court in Gaurav Nagpal v. Sumedha Nagpal

reported in (2009) 1 SCC 42 are very pertinent. Those

principles in paragraphs 42 and 43 are set out below:

"42. Section 26 of the Hindu Marriage Act,

1955 provides for custody of children and

declares that in any proceeding under the said

Act, the court could make, from time to time,

such interim orders as it might deem just and

proper with respect to custody, maintenance

and education of minor children, consistently

with their wishes, wherever possible.

43. The principles in relation to the custody of

a minor child are well settled. In determining the

question as to who should be given custody of a

minor child, the paramount consideration is the

"welfare of the child" and not rights of the

parents under a statute for the time being in

force".

21. That is why this Court has all along insisted on

focussing the welfare of the child and accepted it to

be the paramount consideration guiding the Court's

discretion in custody order. See Thirty Hoshie

Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR

1982 SC 1276."

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2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -5-

7. In the absence of any specific statutory bar or restriction in law prohibiting filing of separate petition for variation of order of custody of minor child in changed circumstances, it cannot be held that the separate petition filed by the respondent under Section 26 of the Act was not maintainable. In other words, the respondent had both the remedies available, i.e. a separate petition for variation of earlier order of custody of minor child or an application in the earlier petition. It was only after having chosen one remedy that it was incumbent upon him or her to pursue remedies thereunder in accordance with law.

8. We now proceed to examine the judgments relied upon by learned counsel for the appellant. In Inderjit Singh Grewal's case (supra), where the decree of divorce by mutual consent under Section 13-B of the Act was sought to be challenged by filing petition under Section 12 of Protection of Women from Domestic Violence Act, 2005, it was held by the Apex Court that petition under Section 12 to the Magistrate challenging the said divorce was not maintainable as subordinate criminal court could not sit in appeal against judgment and order of superior civil court, having a different territorial jurisdiction.

9. The Karnataka High Court in P. Madhavan Nair and other's (supra) was considering the issue whether change in custody of minor after the death of the mother could be agitated before the Guardian and Wards Act when the earlier order of custody was passed by civil court. It was held that the petition had to be filed before the civil court and not before the Family Court invoking the jurisdiction under the Guardian and Wards Act, 1890 as the Family Court had no jurisdiction to entertain the petitions.

10. The issue before the Calcutta High Court in Sibani

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2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -6-

Banerjee's case (supra) was relating to alleged non compliance of the decree of divorce passed under Special Marriage Act, 1954 wherein the wife was to make the child available to the husband every Sunday for two hours at the agreed place. It was laid down therein that the decrees and orders passed by the court in any proceedings under the said Act would be enforceable like the decree and order of the court made in the exercise of its original civil jurisdiction and there was no remedy available under Section 25 of the Guardian and Wards Act, 1890 for the return of the child and also for the purpose of alteration or revocation of an order of custody made by a competent court.

11 The issue in Inderjit Singh Grewal's case (supra) before the Apex Court and in Karnataka High Court in P. Madhavan Nair and other's (supra) was different and therefore, no advantage could be derived by the appellant therefrom. Similarly, the factual scenario in Sibani Banerjee's case (supra) being distinguishable, it does not advance the case of the appellant.

12. Still further, under Order 7 Rule 11 of the Code of Civil Procedure, the jurisdiction vests with the court to reject the plaint in the following circumstances:-

"11. Rejection of plaint- The plaint shall be rejected in

the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the

plaintiff, on being required by the Court to

correct the valuation within a time to be fixed by

the Court, fails to do so;

(c) where the relief claimed is properly valued, but

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2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -7-

the plaint is returned upon paper insufficiently

stamped, and the plaintiff, on being required by

the Court to supply the requisite stamp-paper

within a time to be fixed by the Court, fails to do

so;

(d) where the suit appears from the statement in

the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the

provisions of rule 9:

Provided that the time fixed by the Court for the

correction of the valuation or supplying of the requisite

stamp-paper shall not be extended unless the Court,

for reasons to be recorded, is satisfied that the plaintiff

was prevented by any cause of an exceptional nature

form correcting the valuation or supplying the requisite

stamp-paper, as the case may be, within the time

fixed by the Court and that refusal to extend such time

would cause grave injustice to the plaintiff."

13. The present case does not fall in any of the categories specified therein. Moreover, the decree under Section 13-B of the Act had been passed by the Family Court, Gurgaon and the present petition has also been moved before the same Court. Further, the trial court held that no prejudice was being caused to either party especially the appellant by permitting the proceedings in the petition for custody of minor Yuvraj to continue, rather the parties were being granted adequate opportunity to lead evidence in support of their respective claims. Even

GURBACHAN SINGH

2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 9640 of 2014 (O&M) -8- otherwise, it would be injustice to the respondent if the petition is thrown out in the very beginning on a technical issue that instead of an independent petition, an identical application in the previous proceedings ought to have been filed particularly when there is no statutory prohibition to the filing of a separate petition in changed circumstances.

14. In view of the above, it could not be said that the present petition filed under Section 26 of the Act was not maintainable. Once that is so, no fault could be found in the order passed by the trial court dismissing the application filed under Order 7 Rule 11 of the Code of Civil Procedure read with Section 10 of the Family Courts Act, 1984 for rejection of the petition. Accordingly, finding no merit in the appeal, the same is hereby dismissed.

(AJAY KUMAR MITTAL)

JUDGE

December 1, 2014 (SNEH PRASHAR) gbs JUDGE

GURBACHAN SINGH

2015.02.12 14:52 I attest to the accuracy and authenticity of this document High Court Chandigarh