HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved On: 20.02.2020
Pronounced On: 06.03.2020
CourtNo. – 3
Case :- FIRST APPEAL FROM ORDER No. – 66 of 2020
Appellant :- Mrs.Deepika Chopra Garg Another
Respondent :- Nikhil Garg
Counsel for Appellant :- Anurag Shukla,Abhishek Mishra,Preeti Shukla (Tiwari)
Counsel for Respondent :- Yashovardhan Swarup,Akshay Srivastava,Desh Deepak Singh,Virendra Kumar Pandey
Hon’ble Ved Prakash Vaish,J.
Hon’ble Narendra Kumar Johari,J.
(Delivered by Hon’ble Ved Prakash Vaish, J.)
1. The challenge in the present appeal is to an order dated 05th February, 2020 passed by learned Additional Principal Judge, Family Court, Lucknow, whereby petition under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Guardians Act’) filed by the respondent-husband for visitation rights was disposed of.
2. Succinctly stating the facts of the case as set out in the appeal are that marriage between the appellant no.1-Smt.Deepika Chopra Garg (hereinafter referred to as ‘the wife’) and Sri Nikhil Garg (hereinafter referred to as ‘the husband’), was solemnized on 10th February, 2015; the appellant no.2- Ms. Anaika Garg was born from the said wedlock on 09th May, 2018; the respondent-husband assaulted the wife and the wife was sent back to her parental house; the wife lodged an F.I.R. bearing Case Crime No.207 dated 18th June, 2019 with P.S. Mahanagar. The respondent-husband filed a suit under Section 25 of the Guardians Act which was registered as Suit No.209 of 2019. The husband also moved an application for visitation rights. The appellant-wife filed written statement/ objections to the petition under Section 25 of the Guardians Act and reply/ objections to the application for visitation rights.
3. Vide impugned order dated 05th February, 2020, learned Additional Principal Judge, Family Court, Lucknow disposed of the application for visitation rights and the husband was permitted to meet the minor female child Ms. Anaika Garg on fifteenth and twenty eighth day of each month in the court before the Reader from 03:00 P.M. to 04:30 P.M.
4. Being aggrieved by the said order, the appellant-wife has filed the present appeal.
5. Learned counsel for the appellant contended that at the time of marriage, parents of the husband informed that their son is a doctor working in a hospital at Delhi and after marriage, he will join his father’s clinic; after marriage, the wife came to know that her husband is a drug addict and consumes drug regularly; the husband started misbehaving with the wife and physically assaulted her; the wife and her parents came to know that the respondent-husband cannot practice as doctor as per orders of Medical Council of India. He also submitted that the husband sent the wife to her parental house in February, 2019, without any clothes, jewellery and other articles.
6. Learned counsel for the appellant also submits that the husband used to beat mercilessly to the wife. He further pointed out that there is whatsapp chat and audio recording between the parties wherein the husband has not denied that he had cheated, misbehaved and fought with the wife and the same was admitted by the husband before the Family Court on 24.01.2020, which amounts to admission on the part of the respondent.
7. Lastly, learned counsel for the appellant submitted that the wife and his child are living separately since February, 2019; since then, the respondent-husband did not care to see the wife or the child, no amount of maintenance was ever paid for upbringing of the child and the respondent-husband has no emotion for the child; the minor child is quite scared from behavior and attitude of the father and therefore, the visitation rights given to the husband is illegal. He also submitted that while deciding the issue of visitation rights of the minor children, the Court will have to consider the welfare, interest of the minor children and decision of the minor child is paramount consideration and should not be based on the ego satisfaction of the parents.
8. On the other hand, learned counsel for the respondent-husband has raised a preliminary objection that the appeal under Section 19(1) of the Family Courts Act, 1984 is not maintainable as the impugned order is an interlocutory order. In support of his submission, he has relied upon judgment in the case of ‘Swarna Prava Tripathy and Anr v. Dibyasingha Tripathy and Anr.’, AIR 1998 Ori 173.
9. Learned counsel for the respondent-husband also submits that, admittedly, marriage between the appellant no.1 and the respondent was solemnized on 10th February, 2015 and appellant no.2-Ms. Anaika Garg was born out of the said wedlock. He submitted that the allegations made by the appellant are totally incorrect. Learned counsel for the respondent also submits that being father of the minor female child, the respondent-husband has right to meet with the child.
10. Learned counsel for the respondent further submits that the appellant has failed to file affidavit in terms of Section 35 of the Evidence Act and therefore, the alleged Whatsapp chatting and audio recording are not admissible in the eyes of law.
11. We have carefully considered the submissions advanced by Sri Anurag Shukla, learned counsel for the appellants and Sri Yashovardhan Swarup, learned counsel for the respondent and have also gone through the material available on record.
12. Before examining the merits of the case, it is necessary to consider the maintainability of the appeal. The relevant provisions of Section 19(1) of the Family Courts Act, 1984 reads as under:
“19. Appeal.–(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 2 [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).]
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.”
13. On a bare perusal of Section 19(1) of the Family Courts Act, 1984, it is manifestly clear that there is provision for appeal against ‘Judgment’ or ‘order’ passed by a Family Courts, but not against ‘an interlocutory orders’. The words ‘Judgment’, ‘order’ and ‘interlocutory orders’ used in sub-section (1) of Section 19 of the Act of 1984 have not been defined in the said Act. The words ‘judgment’ and ‘order’ are defined under Section 2 sub-section (9) and (14) of the Code of Civil Procedure, 1908 (in short ‘the C.P.C.’) and by virtue of Section 2(e) of the Act of 1984, come to be looked into for understanding the meaning of those words. However, the expression ‘Interlocutory order’ is not defined even in the C.P.C., though, the expression has been used in Order XXXIX of the C.P.C. Thus, in order to decide whether an appeal against the impugned order lies under sub-section(1) of Section 19 of the Act of 1984, we have to consider whether the impugned order falls within the definition of ‘interlocutory order’ or not.
14. The legislature in its wisdom has used a non-obstante clause ‘notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law’, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. Appeal under sub-section (1) of Section 19 of the Act of 1984 leaves no room for doubt that provisions contained under the C.P.C. will not be relevant.
15. Sub-section (5) of Section 19 of the Act of 1984 provides that except as aforesaid, no appeal or revision shall lie to any other court from any judgment, order or decree of a Family Court.
16. While interpreting the word ‘Judgment’, the Hon’ble Supreme Court in the case of ‘Shah Babulal Khimji v. Jayaben D. Kania and Anr.’, AIR 1981 SC 1786 observed that those orders which decide matters of moment or which affect vital and valuable rights of the parties and which tented to work serious injustice to the party concerned, fall within the expression ‘Judgment’ appearing in relevant clause of Letters patent. The Hon’ble Supreme Court held that there could be three kinds of judgments’ (i) final judgment, (ii) a preliminary judgment and (iii) Intermediary or Interlocutory judgment. The Hon’ble Supreme Court ruled that ‘order’ or ‘interlocutory order’ passing the characteristics and trappings of finality or affecting valuable right of the party or deciding an important aspect of the trial in an ancillary proceeding will be ‘judgment’.
17. Similarly, Section 397 (2) of the Code of Criminal Procedure, 1973 provides that powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
18. The Hon’ble Supreme Court considered the meaning of the expression ‘interlocutory order’ appearing in sub-section(2) of Section 397 of the Cr.P.C. in the case of ‘Amar Nath and Ors. v. State of Haryana and Ors.’, AIR 1977 Supreme Court 2185 and held that:
“6. ..The term “interlocutory order” is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster’s New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide ‘the rights and liabilities of the parties concerning a particular aspect. It seems to, us thatthe term “interlocutory order” in s. 397(2) of the 1973 Code has beenused in a restricted sense and not in any broad or artistic sense.It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s. 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie unders. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. outside the purview of the revisional jurisdiction of the High Court
19. A similar view was taken by the Hon’ble Supreme Court in the case of ‘Madhu Limaye v. State of Maharastra’, AIR 1978 Supreme Court 47. The Apex Court observed that some kinds of order may fall in between ‘final order’ and ‘interlocutory order’ and the bar in sub-section(2) of Section 397 of the Criminal Procedure Code, 1973 was not meant to be attracted to such kind of ‘intermediate orders’. In other words, what was not final was not necessarily an interlocutory for the purpose of sub-Section(2) of Section 397 of the Cr. P.C.
20. In the case of ‘Smt. Kiran Bala Srivastava v. Jai Prakash Sirvastava’, 2005 (23) LCD 1, the issue was whether an appeal under Section 19 of the Family Courts Act, 1984 would lie against an order passed under Section 24 of the Hindu Marriage Act, on ground of interim maintenance and the Full Bench judgment of this Court held that the order of pendente lite maintenance is of the characteristics and trappings of judgment as it affects the valuable rights and liabilities of the parties to the proceedings and it was observed that the appeal is maintainable. Thus, the judgment in the case of ‘Swarna Prava Tripathy(supra) relied upon by the respondent-husband is of no help to the respondents.
21. Applying the aforesaid law to the facts and circumstances of the present case, we are of the considered view that the visitation rights of a child affect rights of both the parties and therefore, the appeal is maintainable.
22. On merits, it may be mentioned that the respondent-husband filed a petition under Section 25 of the Guardians Act. The relevant provisions of Section 25 of the Guardians and Wards Act, 1890 reads as under:
“25.Title of guardian to custody of ward-(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that if will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal procedure, 1882.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.”
23. Chapter II of the Guardians Act deals with appointment and declaration of guardians. Section 8 of the Guardians Act enumerates persons entitled to apply for order as to guardianship. Section 9 of the Guardians Act empowers the Court having jurisdiction to entertain application for guardianship. Section 10 to 16 of the Guardians Act deals with procedure for proceeding on the application. Section 17 provides the matter to be considered by the Court in appointing guardian. Section 17 of the Guardians Act reads as under:
17. Matters to be considered by the Court in appointing guardian.–(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(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.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
24. Section 19 of the Guardians Act prohibits the Court from appointing guardian in certain cases.
25. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides as to who can be a natural guardian. The relevant Section of the Act reads as under:-
6. Natural guardians of a Hindu minor.–The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are–
(a) in the case of a boy or an unmarried girl–the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl–the mother, and after her, the father;
(c) in the case of a married girl–the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section–
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.–In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
26. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides deals with the welfare of a minor. The same reads as under:-
13. Welfare of minor to be paramount consideration.–(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
27. It is trite that while determining the question as to which parent the care and control of a child should be committed, the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. The question of welfare of the minor child is to be considered in the facts and circumstances of each case. It is a settled law that in the case of custody, welfare of child is of paramount consideration. In the case of ‘Mausami Moitra Ganguli v. Jayant Ganguli’, AIR 2008 SCC 673, the Hon’ble Supreme Court held:
“19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.
20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.
21. In Rosy Jacob Vs. Jacob A. Chakramakkal1, a three- Judge Bench of this Court in a rather curt language had observed that
“15. …the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of (1973) 1 SCC 840 welfare of the minor children and the rights of their respective parents over them.
22. In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:
“809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.”
28. In ‘Roxann Sharma v. Arun Sharma’, AIR 2015 SC 2232, the Hon’ble Supreme Court held that there can no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration.
29. It is well settled law that while deciding the custody of minor child and issue of visitation rights of the minor child, the Court will take into consideration the welfare and interest of minor child because it is not the rights of the parties to meet the child but the interest and welfare of the minor child.
30. In ‘Sheoli Hati v. Somnath Das’, 2019 7 SCC 490, the Hon’ble Supreme Court held thus:
“17. It is well settled that while taking a decision regarding custody or other issues pertaining to a child, welfare of the child is of paramount consideration. This Court in Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42, had occasion to consider the parameters while determining the issues of child custody and visitation rights, entire law on the subject was reviewed. This Court referred to English Law, American Law, the statutory provisions of Guardian and Wards Act, 1890 and provisions of Hindu Minority and Guardianship Act, 1956, this Court laid down following in paragraph Nos. 43, 44, 45, 46 and 51:
“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.
44. The aforesaid statutory provisions came up for consideration before Courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.
45. In Saraswathibai Shripad Ved v. Shripad Vasanji Ved, ILR 1941 Bom 455 : AIR 1941 Bom 103; the High Court of Bombay stated;
“….It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration…..” (emphasis supplied)
46. In Rosy Jacob v. Jacob A. Chandramakkal, (1973) 1 SCC 840, this Court held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
* * * *
51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well- being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. ”
31. In the instant case, the trial court has allowed the application primarily on the ground that investigation report in respect of F.I.R. and documents regarding writ petition No.35600 of 2019 have not been filed and the copies of Whatsapp chats and conversations are matter of merit/ discussion. Learned trial court has taken into account the material except welfare of child which was the only thing to be considered. In our view, the impugned order cannot be sustained in the eyes of law.
32. In view of the above discussion, the impugned order dated 05th February, 2020 passed by learned Additional Principal Judge, Family Court, Lucknow is set aside and the matter is remanded back to learned trial court for passing a fresh order after hearing both the parties and considering the material available on record, expeditiously and preferably within a period of four weeks from the date of producing certified copy of this order, in accordance with law.
33. It is made clear that we have not expressed any opinion on the merits of the case and the trial court will pass a fresh order without being swayed by the observations made hereinabove.
34. A copy of this order be sent to learned trial court immediately.
(Narendra Kumar Johri) (Ved Prakash Vaish)
Order Date :-06th March, 2020