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

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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 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) -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."

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) -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 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) -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 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) -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