Shyam Sundar Agarwala vs Jay Prakash Khadaria and Another

B.N. Singh Neelam, J.—This Civil Revision is so preferred u/s 115 of the CPC read with Article 227 of the Constitution of India by Shri Shyam Sundar Agarwalla particularly challenging the order dated 22.9.97 passed by the learned Principal Judge, Family Court, Guwahati in Misc. (G) Case No. 8/97.

Heard Mr. B.K. Das, the learned Sr. Counsel for the Petitioner and Mr. B.K. Goswami, the learned Sr. Counsel for the OP No. 1 Shri Jay Prakash Khadaria. No one appears on behalf of OP No. 2 Smti. Meera Agarwalla @ Dolly.

The order dated 22.9.97 was passed by the learned Family Court in Misc. (G) Case No. 8/97 preferred by the present Petitioner on 27.2.97 for his appointment as guardian of Master Ankur which runs as under:

22.7.97 : As per order dated 18.9.97 last, minor Ankur was produced by OP No. 2 yesterday to the residence of the learned amicus curiae herself and the amicus curiae talked to the boy. The Petitioner and his wife (were) also talked to their grand son though the boy expressed his inclination to go to the Petitioner after his half yearly exam is over by end of Oct., there is vehement objection from the side of the OP No. 2. It appears that certain legal problems are there in giving interim or temporary custody of the boy, to the Petitioner and unless a full hearing is taken by recording evidence of both sides, question of custody temporary or permanent cannot be decided. I am therefore not inclined to order temporary custody of the minor boy to the Petitioner and as such the prayer for temporary custody is rejected. Case will be heard expeditiously. Fix 1 &. 11.97 for evidence of the Petitioner side. Learned amicus curiae Mr. R. Jain will help the Court in examining and cross-examining the parties and their witness.

By referring to the impugned order Mr. B.K. Das, the learned Sr. Counsel for the Petitioner has submitted that by passing this i order the learned Family Court has closed the door for consideration of the temporary custody of Master Ankur to be given to the Petitioner as specifically provided u/s 12 of the Guardians and Wards Act, 1890. By giving a short history giving rise to the Misc. (G) Case No. 8/97 so filed before the Family Court under the provisions of Section 7(g) of the Family Courts Act, 1984 it is pointed out that the present Petitioner''s only son Sanjay Agarwalla died who was married to present OP No. 2 Smti. Meera Agarwalla on 5.5.90 and because of the said wedlock Master Ankur was born on 9.12.91. By referring to Annexure-A which is the copy of the application so preferred in Misc. (G) Case 8/97 it is further submitted that Master Ankur after the present Petitioner''s only son death used to reside with him but as detailed in the said application, fraudulently Master Ankur was taken to present OP No. 1''s house by Smti. Meera Agarwala OP No. 1 being no one else but the father of OP No. 2 and then Smti. Meera Agarwalla accepting one Shri Rakesh Bansal @ Bitty as her husband on 10.5.97 and started living at Calcutta though Shri Rakesh Bansal @ Bitty had a son from his first wife aged about 10 years and thus not carrying Master Ankur to Calcutta with her. The Petitioner, it is submitted, all through wanted Master Ankur to come back to his place to which Shri Jay Prakash Khaderia, as submitted, objected and also created some documents collusively claiming the child as adoptive father stating that Master Ankur was so adopted by him on 9.2.97 and a deed to that effect was also registered on 27.2.97. The said deed relating to adoption, Mr. B.K. Das, the learned Counsel for the Petitioner submits, was all through challenged by the Petitioner also submitting that under the provisions of Section 11(1), 12 and 15 of the Adoption and Maintenance Act, 1956, adoption of Master Ankur, if any, is a complete bar because of Shri Jay Prakash Khadaria had already adopted one Sangeet Khadaria on 18.12.87 itself. It is also brought in notice that for declaring the purported adoption of Master Ankur by Shri Jay Prakash Khadaria to be null and void, a suit has been filed before the competent Civil Court bearing Suit No. 4/97.

Mr. Das, the learned Counsel for the Petitioner has further submitted that the Family Court has to decide u/s 7(g) of the Family Courts Act in connection with not only the appointment of Guardian of a minor but also with regard to the access or the custody of the minor and in the background of the specific provision of Section 12 of the Guardians & Wards Act, 1890, the interim custody was rightly claimed by the present Petitioner with a prayer as to give the temporary custody of the minor till the disposal of the case by the Family Court but the same was on flimsy grounds rejected by the learned Family Court. By referring to the provisions of Section 19 of the Family Courts Act, 1984 it is further pointed out that no appeal lies against such order and also in this connection by referring to Section 47 of the Guardians & Wards Act, 1890 it is submitted that the appeal only lies against the final orders and the present order under challenge on no account can be said to be a final order and hence rightly Civil Revision has been filed particularly challenging the impugned order u/s 115(1)(b) CPC with a submission that the learned Family Court in the instant case has utterly failed to exercise the jurisdiction vested upon him and though at several occasions opening his mind as to give the temporary custody of the minor Ankur to the present Petitioner, suddenly rejected the said prayer on 22.9.97 and that too without assigning any reason. It is submitted that the learned Family Court is quite silent detailing the legal problems which was creating obstacle, if any, in giving the interim custody of the child - the welfare of the child being of supreme importance and thus the impugned order can well be said to be not a speaking order liable to be interfered. In support of his this contention Mr. B.K. Das, the learned Sr. Counsel has referred to a reported case Vasudeo Vishwanath Saraf Vs. New Education Institute and Others, and by referring to its para 14 it is further pointed out that the cardinal principle of rule of law which governs our policy makes it obligatory on the part of the Court to record reasons for arriving at a conclusion to enable the litigants more particularly the aggrieved party to know the reasons which weighed the mind of the Court in determining a particular question whether it is a question of facts or question of law, which is imperative for the fair and equitable administration of justice. By also referring to the provisions of Section 115 CPC particularly its "explanation" it is submitted that the impugned order is very much under the purview of this section and therefore rightly filing this Civil Revision the relief is so sought for. It is also brought in notice that the minor Master Ankur is residing at the residence of OP No. 1 under mental tension and for his welfare the interim custody of the child to the present Petitioner who is no one else but the grand father of Master Ankur, be thus given. The prayer portion of this Civil Revision Petition runs as under:

It is therefore prayed that your Lordships may be pleased to admit this petition, call for the records, issue rule calling upon the OP to show cause as to why the order dated 22.9.97 passed by Shri B.K. Das, Principal Judge, Family Court, Kamrup, Guwahati in Misc. (G) Case 8/97 should not be set aside and upon hearing on such cause or causes as the case may be shown by the OP, make the rule absolute and/or pass orders for interim custody of the child Master Ankur in favour of the Petitioner till disposal of Misc. (G) Case No. 8/97 or pass such further orders as to your Lordships may seem fit and proper.

Mr. B.K. Goswami, the learned Sr. Counsel has submitted on behalf of OP No. 1 that since the guardianship case so pending before the learned Family Court has not been decided by the impugned order dated 22.7.97 therefore against the said order no civil revision lies particularly as a matter of fact no order has been passed with regard to that rather the learned Court below has simply shown anxiety as to dispose of the said case expeditiously fixing 18.11.97 for evidence and showing reservation as to give temporary custody of minor boy to the Petitioner because of certain legal problems -though not detailed in express words. The minor, it is submitted, is very much with OP No. 1 Jay Prakash Khadaria who is not only the maternal grand father of Master Ankur but the adoptive father because of the said minor being taken in adoption though purported adoption is challenged by the Petitioner on several grounds. It is also pointed out that OP No. 1 is financially strong as to maintain the minor and to meet all his necessities giving him best care and education. It is further pointed out that OP No. 1 thus cannot be removed from being the guardian of Master Ankur unless found unfit for which the onus was heavily upon the Petitioner as to establish the same. In support of his this contention, Mr. Goswami, the learned Sr. Counsel has referred to Section 19(b) of the Guardians & Wards Act, 1890 and also Sections 5 and 6 of the Hindu Minority & Guardianship Act, 1956. He has also referred to two of the reported cases in this context, viz Kamalamma Vs. Laxminarayana Rao, particularly drawing attention to para 8. On this point another reported case is also banked upon which is Mohammad Shafi Vs. Shamin Banoo, and by referring to its para 11 it is submitted that since the OP No. 1 has not been declared unfit, the custody of the child cannot be given to Petitioner No. 1. By referring to Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka, it is pointed out by referring to para 17 that while considering the custody of a minor his welfare is of supreme importance and in the background of the facts and circumstances of the present case, the custody of the child in the hands of OP No. 1 is safe and secured which need not be disturbed.

After hearing both the sides'' learned lawyers I find that u/s 7(1)(g) of the Family Courts Act, 1984, the Family Court has the jurisdiction as to appoint guardian and decide the question of custody or access to any minor. Furthermore u/s 12 of the Guardians & Wards Act, 1890 the Court is given the power as to make interlocutory order for production of the minor and interim protection of his person and property. The interim custody so envisaged is given taking into consideration the welfare of the minor to be of paramount importance. By looking into the impugned order dated 22.7.97, it further comes in light that as regards the question with regard to interim custody the same has been finally decided by the Family Court rejecting such prayer of the Petitioner and though directed expeditious disposal of the proceeding (Misc. (G) 8/97), the same is moving with snails pace and till today not a single witness is examined. In this connection it will not be out of place to mention the provisions of the Family Courts (Gauhati High Court) Rules, 1989. Rule 20 of the Rules runs as under:

The proceedings before the Court shall be heard and disposed of as expeditiously as possible and preferably within 3 months and in achieving this objective the rules or procedure may not rigidly adhered to.

Since there is also provision so contained u/s 9 of the Family Courts Act, 1984, as to make efforts reasonable settlement, it transpires that the learned Family Court in the instant case had at several occasions made such attempts but in vain which is apparent by going through the order-sheets of the lower Court records. Section 13 of the Hindu Minority and Guardianship Act speaks also that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be of paramount consideration. Likewise Section 17(2) of the Guardians & Wards Act, 1890 runs as under:

17(2): In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

In this connection it will not be out of place also as to mention with regard to the provisions of Order 32A, Rule 6 of the CPC which are also on the same line with regard to the settlement as to decide the matter of interim custody of a minor till the final disposal of the matter relating to the appointment of guardian by the Court taking into consideration the welfare of the child to be of paramount importance and because of these provisions while deciding the matter as to interim custody of the child till the final disposal of Misc. (G) 8/97 pending before the Family Court, it is the welfare of Master Ankur which has to be given paramount importance.

By looking into the previous order-sheets of Misc. (G) 8/97 it transpires that at several occasions prior to the passing of the impugned order on 22.7.97, the learned Family Court had opened his mind after subjective satisfaction to give interim custody of Master Ankur to the present Petitioner Shri Shyam Sundar Agarwalla some of the contents of the order-sheets are detailed below:

11.6.97 : Master Ankur is produced by OP No. 2. Petitioner and his wife are present. They are allowed to meet the boy. The boy was weeping may be he was under some influence. The boy is allowed to be taken back by OP No. 2.

Fix - 17.6.97 for framing issues. The boy will be produced at the residence of Shri Ganpatrai Dhanuka in his presence where the Petitioner and his wife will meet the boy on Sunday next at 4 p.m., OP No. 2 shall not be inside the room where the Petitioner will meet the boy for an hour.

Inform Sri Dhanuka accordingly.

17.6.97 : Seen petition No. 410 filed by the OPs. Heard both sides, ft appears that master Ankur could not be produced in the house of Dhanuka for reasons stated therein. OP No. 2 is asked to produce the boy in the Court on 21.6.97 at 2 P.M. framing of issues is deferred till the next day.

Thereafter it transpires that the learned Family Court has mentioned in the order-sheet dated 21.6.97 that the said child was not produced by OP No. 2 on 21.6.97.

Then the order so passed by the learned Court below dated 1.7.97 is of importance, a copy of which is filed marked as Annexure-"L" which runs thus:

1.7.97 : Petitioner is present. OP No. 2 has sent a petition No. 455 hearing for adjournment of the hearing on the petition for interim custody of the minor boy Ankur. Grounds shown are not satisfactory even though the opposite party filed petition for transfer of the case and review petition against certain orders of this Court, he has failed to produce any order from the Hon''ble High Court. The minor boy is said to be enjoying his summer vacation for a short period. It appears that the OP-No. 2 is trying stack the proceeding by filing petition after petition both in this Court and also in the High Court. I do not find it necessary to take the help of any amicus curiae to dispose of the petition for interim custody of the child. The Petitioner is no one else than the paternal grand father. His desire to get the company of his only grand son is considered very genuine. The OP, instead opposing the petition, should have agreed to allow the minor in his custody to go and live with the Petitioner for a brief period. In my opinion it will not cause any inconvenience or harm to the minor if he is allowed to go and live with the Petitioner for a short period....

OP No. 2 is therefore directed to produce the minor Ankur tomorrow at 2 p.m. to be handed over to the Petitioner failing which coercive measures shall have to be taken to execute this order....

Even after this order, the boy was not produced by the present OP No. 1 before the learned Family Court when the Family Court was pleased to pass orders on 2.7.97 which is quoted below:

2.7.97 : Petitioner is present. OP No. 2 has not appeared and produced the minor boy. Seen petition No. 462 sent by the OP No. 2 through messenger. It appears that the OP No. 2 has sent the boy out of the district in order to frustrate various orders of this Court passed regarding production of the minor. The acts of the OP No. 2 amounts to contempt of Court. The Hon''ble High Court will be informed accordingly to take up a case under Contempt of Courts Act.

Fix - 2.8.97 for necessary order.

Inspite of these directions, it transpires that the boy could not be produced before the Court for being handed over to the Petitioner and lastly the learned Family Court passed the impugned order dated 22.7.97 which need not be repeated. This will also not be out of place to mention that by looking into Annexure-F, J, K and N, it transpires that on behalf of OP No. 1, three Civil Rules bearing CR Nos. 111, 231 and 219 of 1997 got filed for the transfer of the case from the Family Court because of the Family Court always insisting as to produce the minor Master Ankur to be handed over to the Petitioner and when an appeal was preferred before the Division Bench of this Court (Appeal No. 69/97) by the present OP No. 1, challenging the production of Master Ankur, the same was also dismissed by the Division Bench on 29.7.97 (Annexure-M).

In this background it can very well be said that the learned Family Court in the beginning while considering the issues with regard to giving interim custody of minor Ankur and in the instant case the welfare of the minor being of supreme importance an there being all through provisions for giving such interim custody when felt necessary in the course of the proceeding prior to the matter being finally decided appointing guardian as prayed for, the learned Family Court has, in my opinion, by passing the impugned order dated 22.7.97 failed to exercise the jurisdiction vested upon him for which he had already opened his mind to give the interim custody of the minor to the Petitioner and thus the impugned order requires interference. The argument advanced by the learned Counsel for the OP No. 1 that no revision lies against the impugned order has no leg to stand particularly in the background when there is specific bar as to prefer appeal against such orders. It has been argued on behalf of OP No. 1 that OP No. 1 is financially sound as to maintain the boy in comparison to the present Petitioner That part is not important for looking into the welfare of the child. It has to be seen as to at which place the child can breathe in open and fresh air without having any fear psychosis or pressure. In the instant case because of the child found weeping at one occasion when brought as detailed in the order-sheet of the learned Court below and because of the child readily agreeing to stay with the present Petitioner as also detailed in one of the order-sheets, the learned Court below was perfectly justified in arriving at the conclusion as to give the interim custody of the child to the present Petitioner at one occasion and all on a sudden with holding the same by the impugned order without assigning any reason, can well be said to be not a speaking order. The grounds so taken by Mr. B.K. Goswami for allowing the custody of the child to the OP No. 1 is in the background of the said purported adoption is not the matter in issue while deciding the matter of guardianship u/s 7(1)(g) of the Family Courts Act, 1984, whether the said adoption was valid or not is the domain of the competent civil Court deciding the adoption matter for which a civil suit is pending and therefore the question raised in this guardianship case with regard to the Family Court first to hold the alleged adoptive father to be unfit, the question for deciding the same in Misc. (G) 8/97 preferred u/s 7 of the Guardians & Wards Act, 1890 does not arise. Matter for decision before the Family Court giving rise to this Civil Revision was to decide the interim custody of Master Ankur till the disposal of the case pending before him and the present child was/is a family child and not a destitute and therefore the sentiment of the welfare of the child is of supreme importance. The welfare of a child means well-being, safety, prosperity, happiness and good health and more particularly to allow the child to live in free air without any pressure or fear.

In the background of the provisions of Rule 20 of the Family Court (Gauhati High Court) Rules, the whole proceeding was expected to be disposed of within 3 moths i.e., by the end of May, 1997 itself and thus the matter shall not be allowed to hang in pendulam when in the instant case even the matter with regard to deciding the interim custody of the child during the pendency of the proceeding has not been decided as yet and for deciding this interim custody matter as to save time, this matter also cannot be allowed to move from this Court to the Family Court like a shattle cork any more and thus the issue with regard to the interim custody of master Ankur in the instant case is decided in this Civil Revision petition itself in the background of the facts and circumstances discussed above.

Taking into consideration the totality of the situation, also holding that the Family Court had failed to exercise the powers so vested upon him to consider with regard to the interim custody of the minor during the pendency of the proceeding before him to the person for the welfare of the minor and in the instant case the learned Family Court opening its mind after satisfaction at several occasions as to give the child in question to the present Petitioner, the impugned order rejecting the prayer for consideration of giving interim custody of minor Master Ankur is set aside holding that the said interim custody till the disposal of Misc. (G)/8/97 pending before the learned Family Court of minor Master Ankur, as to meet the ends of justice, be rather given to the present Petitioner. The force of this order for the interim custody of the child so given to the present Petitioner shall cease to exist, the day Misc. (G) Case 8/97 is decided by the Family Court. The Family Court is directed as to decide the proceeding of Misc. (G) 8/97 within a period of 45 days from the date of receipt of this order. The LCR so called for be sent back to the Court concerned at once. In case the present Petitioner fails to cooperate in adducing evidence for the expeditious disposal of Misc.(G) 8/97, the learned Family Court shall be at liberty as to pass necessary orders even with regard to the interim custody of the child in case foreseeing that because of the laches on the part of the present Petitioner, the disposal of Misc. (G) 8/97 is not possible within time limit so given i.e. 45 days from the date of receipt of the order. The learned Family Court shall pass necessary orders in exercise of the implementation of the direction so given for handing over the child to the present Petitioner till the disposal of Misc. (G) 8/97 which be handed over after the learned Family Court passing order for the child''s production before him in the Court and to be handed over in his presence within a period of 7 days from the date of receipt of this order. At the time of taking over the child by the present Petitioner, the Family Court may put any condition undertaking of which be given by the present Petitioner in writing at the time of taking over minor Ankur''s interim custody such as the present Petitioner after taking over will produce the child as and when so directed by the Family Court and will not in any way keep him or send him outside Gauhati and the present Petitioner will extend all facilities, protection with regard to the child''s health, education, coaching, clothing, fooding, entertainment etc. During the period of interim custody of Ankur with the present Petitioner Shri Shyam Sundar Agarwalla, OP No. 1 and his family members may have access to meet the minor with the permission of the Family Court at the place where directed by the Family Court as also indicated above. Over and above these conditions the Family Court shall be at liberty as to put any other conditions undertaking of which be given by the present Petitioner while taking over interim custody of the minor which he deemed necessary in the background of the facts and circumstances of the case keeping in mind the welfare of the minor Master Ankur.

In the result, this Civil Revision is allowed. Send down the LCR to the learned Court below concerned at once. Parties to bear their own costs.