SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Jitendra Nahar vs Smt. Sandhya Nahar on 20 June, 2018

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M P No. 2727 / 2018
JITENDRA NAHAR VS. SMT. SANDHYA NAHAR
— 1 —
INDORE, Dated : 20/06/2018
Petitioner through counsel.
The petitioner before this Court has filed this present
writ petition under Article 227 of the Constitution of India
being aggrieved by the order dated 17/5/2018 passed by the
Addl. Principal Judge, Family Court, Ujjain in a case
preferred by the wife under the Guardian and
Wards Act
1890.
Facts

of the case reveal that the sole respondent before
this court, who is undisputedly mother of a minor child, has
preferred an application seeking custody of the child by
filing appropriate application u/S. 7 of the Guardian and
Wards Act 1890. As the child is of tender age, at the relevant
point of time aged about only nine months, she has also
preferred an application for grant of interim custody of the
child.

The learned Judge, keeping in view the age of the
innocent child, has passed an order on 17/5/2018 directing
interim custody of the minor child to the mother.

Learned counsel for the petitioner has argued before
this Court that the order directing interim custody amounts to
final order and, therefore, the same be set aside and the trial
Court be directed to pass appropriate fresh order on merits
finally.

This Court has carefully gone through the impugned
order passed by the trial Court. It is not a case of a grown up
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M P No. 2727 / 2018
JITENDRA NAHAR VS. SMT. SANDHYA NAHAR

— 2 —

child who is able to handle himself or who can be looked
after other persons, as argued by the learned counsel for the
petitioner. The child, at the relevant point of time was nine
months and now he is one year old.

This Court is of the considered opinion that the child is
totally dependent upon the mother and keeping in view the
tender age of the child, the Principal Judge, Family Court,
Ujjain was certainly justified to grant interim custody to the
mother. This Court in exercise of the powers conferred under
Article 227 of the Constitution of India, does not find any
reason to interfere with the impugned order.

The Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra
Shankar Patil reported in 2010 (8) SCC 329 in paragraph No.49 has held
as under:-

“49. On an analysis of the aforesaid decisions of this Court, the following principles
on the exercise of High Court’s jurisdiction under
Article 227 of the Constitution may
be formulated:

(a) A petition under Article 226 of the Constitution is different from a
petition under
Article 227. The mode of exercise of power by High Court under these
two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition.
The history of the conferment of writ jurisdiction on High Courts is substantially
different from the history of conferment of the power of Superintendence on the High Courts under
Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence
under
Article 227 of the Constitution, interfere with the orders of tribunals or Courts
inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the
orders of Court or tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that would also operate as a restrain on the exercise
of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power
of superintendence have been repeatedly laid down by this Court. In this regard the High Court must
be guided by the principles laid down by the Constitution Bench of this Court
in Waryam Singh (supra) and the principles in Waryam Singh (supra) have
been repeatedly followed by subsequent Constitution Benches and various other
decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in
subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in
order only to keep the tribunals and Courts subordinate to it, `within the bounds of
their authority’.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising
jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested
in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in
exercise of its power of superintendence when there has been a patent perversity in the orders of
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M P No. 2727 / 2018
JITENDRA NAHAR VS. SMT. SANDHYA NAHAR

— 3 —

tribunals and Courts subordinate to it or where there has been a gross and manifest failure of
justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere
errors of law or fact or just because another view than the one taken
by the tribunals or Courts subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.

(i) High Court’s power of superintendence under Article 227 cannot be curtailed by any
statute. It has been declared a part of the basic structure of the Constitution by the Constitution
Bench of this Court in the case of
L. Chandra Kumar vs. Union of India others,
reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very
doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115
of the Civil Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999
does not and cannot cut down the ambit of High Court’s power under
Article 227. At the same
time, it must be remembered that such statutory amendment does not
correspondingly expand the High Court’s jurisdiction of superintendence under
Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In
an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under
Article 227, it transpires that the main object of this Article is to keep strict administrative and
judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does
not bring it into any disrepute. The power of interference under this Article is to be kept to the
minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence in the
functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to
be exercised just for grant of relief in individual cases but should be directed for promotion of
public confidence in the administration of justice in the larger public interest whereas
Article
226 is meant for protection of individual grievance. Therefore, the power under
Article
227 may be unfettered but its exercise is subject to high degree of
judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will
divest this extraordinary power of its strength and vitality.”

In the light of the aforesaid judgment delivered by the apex Court,
this Court is of the considered opinion that the order of the trial Court does
not suffers from any patent illegality nor any jurisdictional error has been
committed by the Court below.

The petitioner, as directed by the trial Court, shall handover the
custody of the child forthwith, as the 7 days period is already over. The
trial Court shall also ensure that the child is given back to the custody of
the mother.

With the aforesaid, admission is declined.

(S. C. SHARMA)
JUDGE
KR

Digitally signed by Kamal Rathor
Date: 2018.06.20 15:34:23 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation