PANKAJ JAIN vs PARUL JAIN

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 30.08.2024 Judgment delivered on: 09.09.2024

+ CM(M) 2406/2024 & CM APPL. 24187/2024 & CM APPL. 38452/2024 & CM APPL. 42124/2024

PANKAJ JAIN …..Petitioner
versus
PARUL JAIN …..Respondent

Memo of Appearance
For the Petitioner: Petitioner in person.
For the Respondent: Mr. Rama Kant Sharma with Mr. Prateek Avasthi and Ms. Akriti Tyagi Seth, Advocates with respondent in person.
CORAM:
HON’BLE MR. JUSTICE MANOJ JAIN
JUDGMENT

MANOJ JAIN, J
1. Another battle between the two sparring spouses over custody of their child.
2. For the sake of convenience, I would be referring to the petitioner Sh. Pankaj Jain as “father” and respondent Ms. Parul Jain as “mother” in the present judgment.
3. The facts are somewhat unusual and multifaceted.
4. The parties got married on 22.04.2006 in accordance with Hindu rites and ceremonies. They were blessed with a baby girl on 11.02.2013.
5. The mother left matrimonial home along with her daughter on 10.03.2018.
6. Soon thereafter, the father filed a petition seeking divorce on the ground of cruelty. Such petition is pending adjudication and we are, presently, not concerned with the same.
7. The matter herein relates to one Guardianship Petition filed by the father.
8. Such petition was filed in May, 2018 under Section 7 and 25 of the Guardians and Wards Act, 1890 (in short “G&W Act”). The petition has been registered as GP No.54/2018 and seeks custody of said daughter.
9. The abovesaid petition is being contested, tooth and nail, by mother. On the basis of the averments appearing in the pleadings, the following issues were framed: –
I. Whether petitioner is entitled to permanent custody of minor daughter Ms. Pinar Jain? (OPP)”
II. Relief.
10. In the interregnum, there were also directions regarding interim custody for weekends, including overnight custody and the custody during the vacation and certain special occasions and festivals.
11. According to the father, their daughter was uncomfortable with her mother and since her such distress level continued to go up, she came to his house on 16.03.2023, claiming that she had decided not to stay with her mother anymore.
12. Thus, according to father, their such daughter was not at all interested in going back to her mother, being in a very bad psychological state on account of conduct of her mother. Whereas, according to the mother, there was nothing of that sort and, actually, she had been tutored by her father.
13. And, as already noted, the father wanted her custody and for said purpose only, he had filed the above guardianship petition.
14. It will be also appropriate to mention, albeit in brief only, that during further proceedings, the learned Family Court directed the father to restore the custody to her mother, else to face arrest. Aggrieved by such order, the father filed an appeal before learned Division bench of this Court, which was dismissed summarily.
15. Eventually, the father i.e. the petitioner herein filed a Special Leave Petition (SLP) before the Hon’ble Supreme Court. The Hon’ble Supreme Court stayed arrest and also interacted with the child.
16. Said petition i.e. SLP (C) 14915/2023 was disposed of on 15.02.2024 and it will be appropriate to extract the abovesaid order, which reads as under:-
“Heard learned counsel for the petitioner and the respondent.
The dispute out of which the present proceeding arises is over custody of the girl child of the parties. The petitioner and the respondent, being the mother and father of the child have matrimonial disputes and are living separately. The father’s application for custody of the child under Sections 7 and 25 of the Guardianship and Wards Act, 1890 registered with the Family Court, Tis Hazari(West), Delhi is still pending. On 5thJuly 2023, an order was passed by the Family Court in certain interlocutory proceedings in connection with the aforesaid petition in exercise of jurisdiction under Section 45 of the 1890 Act, directing, inter-alia, handing over custody of the child to the mother by the next day. The father preferred an appeal in the High Court of Delhi against the said order and a Division Bench of the High Court on 10thJuly 2023, dismissed the said appeal. In this petition, the aforesaid order of the High Court has been assailed.
We are of the view that the Family Court would be the appropriate forum for taking a final decision on the question of custody in the pending petition made under Sections 7 and 25 of the 1890 Act. This matter has been heard on several occasions by this Court and attempt was made to find a resolution, but no solution could be worked out by and between the parties.
We are apprised that hearing in the main case for custody has reached an advanced stage before the Family Court. We, accordingly, dispose of this petition with a request to the Family Court to conclude hearing of the matter as expeditiously as possible.
Till final decision is taken by the Family Court, the custody of the child shall remain with the father. We are not expressing any opinion on merits in this order lest it influences the Family Court while taking a decision in the proceeding pending before it. We are also refraining from making any comment as to whether the present custody of the child with the father is legal or not. During pendency of the proceeding before the Family Court, the question of respondent’s visitation right shall be determined by the Family Court itself and for this purpose, the respondent shall be at liberty to make appropriate prayer.
Pending application(s), if any, shall stand disposed of.
CONMT.PET.(C) Nos.860-861/2023 in SLP(C) Nos.6535-6536/2023
We dispose of the present contempt petitions with liberty to the petitioner therein i.e. ‘Parul Jain’ to apply afresh before the appropriate forum, should such occasion arise.
Pending application(s), if any, shall stand disposed of.”
17. Admittedly, such daughter, thus, still continues to be with her father.
18. However, in between there were significant happenings.
19. The father moved an application before the learned Family Court seeking withdrawal of his guardianship petition and, simultaneously, his wife moved an application under Section 10(3) of the Family Courts Act, 1984 seeking to get herself transposed as petitioner in the abovesaid guardianship petition.
20. The learned Trial Court disposed of the abovesaid both applications by common order dated 21.11.2023 and the application of father seeking withdrawal was rejected with the direction that he would continue to be one of the parties in the present petition. The application moved by the mother was allowed and she was transposed as the petitioner. The learned Family Court observed that the petitioner (father) was trying to take advantage of his own wrongs and the application for withdrawal had been moved since he had the custody of her daughter while taking advantage of the interim orders passed by the Court and the transposition request of the mother was allowed while relying on Someshwar Dayal vs. Anupama Dayal: 2016 SCC OnLine Del 4585.
21. The learned Family Court observed that it was conscious that the transposition of the parties involved various procedural/technical issues related to amendment of pleadings and evidence etc. but since the paramount consideration was welfare of the child and since the pleadings and the evidence of the respective parties were already on record and their averments were also very clear, there was no requirement of amending the pleadings or for that matter, recording evidence afresh.
22. Such order was challenged before the learned Division Bench of this Court and vide order dated 12.12.2023, such appeal MAT APP(FC) 367/2023, too, was dismissed. Para 6 to para 10 of said order, germane in the present context as well, read as under: –
“6. We have given considered thought to the contentions raised.
There is no dispute as to the proposition that the nature of inquiry before the Family Court is adjudicatory and while adopting the procedure under sub-section 3 of Section 10 of the Family Courts Act, 1984, the Court is bound to follow the foundational principles of fairness of procedure and natural justice along with the norms prescribed in the relevant statutes.
On the face of record, the learned Family Court appears to have adhered and followed the practice and procedure for the purpose of adjudicating the guardianship petition which was under consideration before it under the Family Courts Act, 1984. Merely because the appellant filed an application for withdrawal of the guardianship petition, it cannot be presumed that the Court became functus officio to further deal with the matter. The narration of facts as observed above and also noticed in the impugned order clearly reflect that sufficient time and opportunity was granted to the appellant to make submissions. In fact, detailed submissions were made by the appellant before the Family Court though the proceedings were also challenged for want of proper service of application for transposition. Apparently, nothing restrained the appellant from filing a reply to the said application, if he so desired. Perusal of record reflects that the appellant sought to withdraw the guardianship petition at the fag end, only to ensure that the orders for handing back of the custody of the child remain non-complied. It cannot be ignored that the pleadings had been duly completed and evidence had been almost led by the parties in respect of their respective stand before the Family Court. It does not appear to be logical that when the parties had almost concluded their evidence before the Court and the matter reached at the final stage after following the due procedure of law, rights of respondent for adjudication of her rights for custody of the child could be defeated by merely permitting the appellant to withdraw the petition and burden her to file a fresh guardianship petition.

7. It is well settled that in the guardianship and custody matters, the Court exercises the ‘parens patriae jurisdiction’ keeping in perspective the welfare of the minor child. The child would continue to remain the sufferer on account of discord between the parents, in case the rights of the parties are not expeditiously determined as per law. The procedural law is always subservient to the substantive justice and hyper-technical procedure can not be insisted upon in view of clear mandate under sub-section 3 of Section 10 of the Family Courts Act, 1984, which permits the Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts.
8. In the facts and circumstances of the case, we are of the considered view that if the application for withdrawal of the guardianship petition preferred by the appellant is permitted, the same would result in mere abuse of judicial process, defeating the rights of the respondent mother for adjudication of her guardianship rights and return of the custody of the child to the respondent.
It is also pertinent to observe that the very purpose of transposition is to enable the effective and comprehensive adjudication of the mater in controversy between the parties and the Court has wide powers to grant such a prayer for transposition, if the appellant seeks to withdraw or abandon his claim only in order to defeat the rights of the respondent for custody of the child. Such transposition, if denied, would also lead to unnecessary multiplicity of the proceedings and delay the adjudication of the rights of the respondent qua custody of child, as already observed above.
9. The factual position in Aman Lohia (supra) relied by the learned counsel for the appellant appears to be clearly distinguishable since in the aforesaid case, there appears to be non-compliance with the prescribed procedure and in fraction of principles of natural justice as also noticed by the learned Trial Court. There is no dispute as to the proposition of law and the observations made by the Hon’ble Apex Court in para 48 as referred to by learned counsel for the appellant.
10. In the facts and circumstances of the case, for the reasons stated herein, the order passed by the learned Trial Court declining to accept the withdrawal of the guardianship petition and transposing the respondent as petitioner appears to be fully justified. The appeal is accordingly dismissed. Nothing stated herein shall tantamount to an opinion on the merits of the case. No order as to costs.”
23. The abovesaid order seems to have attained finality as the father did not take any exception to the same.
24. Things, however, did not stop there.
25. The father, now as opposite party, moved three applications before the learned Family Judge.
26. These were (i) application under Order VII Rule 10 CPC seeking return of the petition due to lack of territorial jurisdiction; (ii) application under Order VII Rule 11 CPC seeking to reject the petition on account of non-compliance of Section 10 and 25 of G&W Act; and (iii) application under Section 151 CPC seeking directions for his wife to amend the petition in terms of specific observations made by the Hon’ble Supreme Court in Aman Lohia vs. Kiran Lohia: (2021) 5 SCC 489.
27. All these three applications have been dismissed by a composite order dated 02.03.2024, which is under challenge before this Court, at the moment.
28. The petitioner has appeared in person and has advanced arguments all by himself.
29. During course of his such arguments, he made reference to various orders passed by the learned Family Court, by this Court as well as by the Hon’ble Supreme Court. He also referred to the relevant provisions contained in G&W Act and Hindu Minority and Guardianship Act, 1956.
30. Let’s take note of the reasons assigned by him for moving said applications.
(a) He contends that he is seeking return of the plaint as there is, now, a totally new cause of action. He submits that since the child is, presently, under his care and custody and since his residence falls under different District of Delhi i.e. North-West District, the Court at Tis Hazari ceases to have any territorial jurisdiction and, therefore, cannot continue with the present petition. It is contended that the ‘place of ordinary residence’ of the child in question has changed and is now of Pitampura, which falls under North-West District. It is submitted that such expression “ordinary residence” used in Section 9 of G&W Act has to be given its natural and literal meaning and, therefore, the Family Court situated at Tis Hazari Court is no longer competent to try the case on account of lack of territorial jurisdiction.
(b) The rejection of the plaint has been sought on the ground that though the Court had permitted transposition but despite there being such transposition, his wife has not filed any separate application/petition under Section 7 of G&W Act seeking her to be appointed as guardian of the minor child and unless and until, she is appointed as guardian, in his place as otherwise he is already legally recognized as natural guardian in the first place, the petition is no longer maintainable and, therefore, the petition is liable to be rejected under Order VII Rule 11 CPC.
(c) By virtue of third application moved under Section 151 CPC, he prays that despite there being transposition of his wife as petitioner, the procedural aspects cannot be given any go bye and, therefore, the pleadings have to be filed afresh and the parties are to be permitted to lead evidence in support of their respective claims, particularly, in light of the subsequent development and the matter should not proceed further unless and until, these statutory and procedural requirements are fulfilled.
31. The petitioner/ father has relied upon Aman Lohia Vs. Kiran Lohia: (2021) 5 SCC 489, Bachhaj Nahar Vs. Nilima Mandal & Anr.: (2008) 14 SCR 621, Ram Singh Vs. Lila Devi: MANU/DE/0153/1969, Hashmat Ali Vs. Srimat Suraya Begam: 1970 SCC OnLine All 213, Smt. Radha @ Parimala Vs. N. Rangappa: ILR 2004 KAR 3212, Prakash Chandra Jain Vs. Smt. Chandrawati Jain: 1995 SCC OnLine Raj 70, Ashok Kumar Seth Vs. State of Orissa: MANU/OR/0264/2002, Khyali Ram and Ors. Vs. State of U.P. and Ors.: MANU/UP/0351/1971, Ramit Kumar Dey Vs. Rituparna Dey and Ors.: MANU/WB/0121/2019, Ram Kishore Singh Vs. NIrmala Devi Kushwaha and Ors.: MANU/MP/0737/2006, Tabasum Manzoor Vs. Abdul Ahad Bhat and Ors.: MANU/JK/0324/2009, Athar Hussain Vs. Syed Siraj Ahmed and Ors.: MANU/SC/0014/2010, Ismail Aboobaker and Ors. Vs. State of Kerala:MANU/KE/0007/1968, Ramesh Tukaram Gadhwe and Ors. Vs. Sumanbai Wamanrao Gondkar and Ors.:MANU/MH/0866/2007, Ruchi Majoo Vs. Sanjeev Majoo: MANU/SC/0621/2011, Dandu Sridhar Vs. Pothamashetty Padma Priya and Ors.: MANU/AP/0925/2003, Ruhi Sahina Vs. Syed Masidur Rahman: MANU/WB/1586/2016, Chimanlal Ganpat Vs. Rajaram Maganchand Oswal: MANU/MH/0120/1936, Dipika Agarwal nee Khaitan Vs. Rishi Agarwal: MANU/WB/0199/2020, Ms. Sumeet Vs. Anupam Gupta: 2010:DHC:1880, Samiulla Saheb & Anr. Vs. Mohammed Sameer: WP No. 6789 of 2023, Arunish Sood Vs. Kumar Sood and Ors.: MANU/DE/2998/2011, Biny Kuriakose and Ors. Vs. Joseph Sebastianaged and Ors.: MANU/KE/2711/2022, Assem Aggarwal Vs. Ashi Kumar: 2023:DHC:5884-DB, Kanwar Singh Saini Vs. High Court of Delhi: MANU/SC/1111/2011 and Someshwar Dayal Vs. Anupama Dayal: 2016 SCC OnLine Del 4585.
32. All such contentions have been vehemently refuted by the learned counsel for the respondent/mother.
33. It is argued that the present petition is another example of abuse of process of law and the ulterior purpose and the malafide intention on the part of father is writ large. It is contended that all the pleas which have been raised by the petitioner by moving the abovesaid three applications are virtually reiteration of what he had claimed earlier when he had sought withdrawal and opposed the request of transposition and since the abovesaid order dismissing his withdrawal request and permitting the transposition has already attained finality, these applications do not have any substance or merit. It is contended that these have been moved simply to prolong the proceedings, particularly, in view of the fact that he is having the custody now. It is submitted that such custody cannot be termed as a legal custody. The petitioner feels that since he has got back the custody of his daughter, if the petition, which he had earlier filed and in which the evidence had also been recorded and the case was already at the stage of final arguments, is permitted to be withdrawn and there is no transposition either, the mother would be constrained to file petition afresh and would have to fight another long-drawn legal battle to get back the custody and sensing such ingenuity on his part, learned Division Bench of this Court upheld the rejection of his application seeking withdrawal and also upheld the allowing of request made by the mother seeking her transposition as petitioner. It is submitted that there is no reason whatsoever either to reject or to return the petition and the learned Trial Court should rather be directed to hear the final arguments and adjudicate the petition as expeditiously as possible.
34. It is also submitted that the paramount consideration in such type of matters is always the welfare of the child, and nothing else. It is argued that the procedural aspects cannot be permitted to govern and reign control over the outcome of the case and, therefore, it is a fit case where the petition should be dismissed with heavy cost.
35. This Court has given anxious consideration to the rival contentions and carefully perused the various orders passed in the present matter by various courts, from time to time.
36. Conscious of the fact that the petition is pending adjudication before the learned Family Court, this Court also would not make any comment whether the custody of the child with her father can be said to be a legal one or not though, at the same time, it can, definitely, be said to be a custody, which is provisional, in the sense that it still does not have seal of final affirmation by any court.
37. When the father had moved an application seeking withdrawal of his guardianship petition, such request was resisted by the mother, who had also filed an application seeking her transposition. The learned Trial Court had permitted transposition while observing as under in para 13:-
“13. This Court is conscious that transposition of the parties involves various procedure/technical issues relating to amendment of pleadings, evidence etc., but here as already mentioned heretoabove the sole and paramount consideration before the court is the welfare of the subject child. The pleadings & evidence of both the parties in relation to their respective averments regarding welfare of child are already on record in the form of petition & reply (written statement) and evidence. Even the trial is almost over in the matter. Both the parties in their respective pleadings and evidence have already averred as to how the welfare of the child lies with them, therefore, no amendment of pleadings is required in this case. The matter is already at the fag end of disposal, therefore, again indulging into the amendment/procedural issues would further delay the matter which is already pending since last 5 years i.e. 2018 and moreover for the reasons that both the parties are in the habit of mud slinging upon each other and thereby burdening the courts by filing one or other applications, appeals etc. The subject child is already sufferer in the hands of her own parents who is not getting proper education despite being daughter of well educated parents due to their personal egos who in order to settle their personal vindicta against each other have reached to the stage to spoil the future of their own daughter.”
38. As already noticed above, said order was taken in appeal but the appeal was dismissed and the relevant order of the learned Appellate Court has already been extracted in detail and it is quite clear that all these points have been considered and eventually decided against the petitioner(father). There is, thus, no point or requirement of doing the entire same exercise, all over again, de novo. As rightly noticed by the Appellate Court, the Court exercises parens patriae jurisdiction in guardianship matter and the transposition was permissible in view of Someshwar Dayal (supra).
39. The learned Division Bench also observed that the pleadings were already complete and evidence had been almost led by the parties in respect of their respective stand before the learned Family Court and, therefore, it did not appear to be logical that when the parties had almost concluded their evidence and the matter had reached the final stage after following the due procedure of law, the rights of mother, who is seeking custody of her child, could be defeated by burdening her to file a fresh guardianship petition. It was also observed that the procedural laws were always subservient to the substantive justice and, therefore, the hyper-technical procedure could not be insisted.
40. In view of the abovesaid specific observations made by the learned Division Bench of this Court, it does not seem appropriate for father to, virtually, re-agitate the same issue in the garb of above-said three applications.
41. What he cannot do directly, cannot be permitted to do indirectly.
42. On the pretext of seeking amendment in the pleadings, he wants a de novo trial and which request has already been rejected by the learned Division Bench of this Court and such order has already attained finality.
43. The request regarding return of the petition is found to be completely fanciful and unjustifiable.
44. Even if during the proceedings of the guardianship petition filed by him, the child came back to him, such fact would not mean anything substantial in the present factual context.
45. We are not dealing with a petition where any such “jurisdictional objection” has been taken at the very threshold in any freshly instituted petition.
46. The jurisdiction existed and vested with the court in question, when the petition was filed.
47. Mere fact that the child is now with the other parent shall not invite return of the suit, particularly when, the transposition has been allowed and upheld as well. The case is already ripe for hearing final arguments and the manner in which the child has re-united with her father would not, ipso facto, mean return of the plaint. Mere transposition would not mean that he, as a defendant, which fact he now seems to have accepted, gets handle to move such kind of applications. Moreover, since transposition request has been also duly approved in appeal, there is no requirement of amending the pleadings or leading the evidence either. Permitting the same would frustrate the very idea of transposition and would tantamount to de novo trial. Thus, the contentions made in this regard are absolutely meritless and seems to have been made simply to delay the final adjudication of the matter and, therefore, reliance on several precedents in this regard seems completely unfounded.
48. Similarly, the contention raised in the context of the rejection of the plaint under Order VII Rule 11 CPC is also without any substance.
49. According to the father, though his appeal had been dismissed by the learned Division Bench of this Court but while dismissing such appeal, even the learned Division Bench had observed that the law laid down in Aman Lohia Vs. Kiran Lohia (supra) was required to be followed. He thus reiterates that even if the request for transposition had been allowed, it was still obligatory for the mother to have filed amended petition. It has been vehemently contended by the petitioner that there is neither any formal petition nor it is clear as to what relief is now being attempted to be sought by the mother, post-transposition and, therefore, in the absence of any pleadings, issues and evidence led by the parties, it is not feasible for the learned Trial Court to adjudicate the matter. It has also been submitted that there is material subsequent development which happened during the span of last two years and all those facts have yet not been brought on record and without these material facts being brought on record, decision may not be in consonance with the objective of the enactment i.e. welfare of the child. All in all, according to him, even after transposition, learned Trial Court should have sought amended pleadings and should have framed the issues afresh. He also highlights that he, being father, is natural guardian of the minor child whereas the mother is not having such legal capacity and moreover there is no petition filed by her under Section 7 of G&W Act and, therefore, learned Trial Court is even otherwise not in a position to grant her any relief.
50. The petitioner seems to be harping the same tune, all over again.
51. He, at any cost, wants trial, over again.
52. According to him, transposition is pointless and despite there being order of such transposition, everything has to be done afresh. According to him, “custody” and “guardianship” are different concepts as ‘guardianship’ related to onerous responsibility whereas ‘custody’ was much narrower concept and the standard of proof required for establishing one’s claim for guardianship was much more stringent vis-à-vis claim for custody. It is contended that since the welfare of the child is paramount aspect, the custody cannot be given to ‘non-guardian’ and even the scheme of G&W Act prohibits the same. It is contended that jurisdiction cannot be conferred merely by an order of transposition and can only be in terms of specific provisions contained in the statute and that the learned Family Court ceases to have any jurisdiction as the child is now residing with him at Pitam Pura which is now the ‘ordinary residence’ of such child.
53. All such contentions do not hold any ground.
54. The request made by him by moving the abovesaid three applications were, virtually, implicit when he had opposed the transposition request and did not meet with any success. These very contentions were raised by him when he had filed appeal before the learned Division Bench of this Court and as already noticed above, his such appeal was dismissed. It is quite evident that he seems to be making an attempt to ensure that the aforesaid guardianship petition does not reach its logical end.
55. The petitioner has strongly relied upon Aman Lohia (supra).
56. However, in that case, the situation was altogether different. In that case, the father had filed a petition under Section 7 of G&W Act on the assertion that he was having custody of his daughter and was merely seeking his appointment as her guardian. The respondent in that case did not file any written statement. The petitioner/father moved applications seeking amendment in the plaint but even those remained unanswered. During further proceedings, however, the respondent/wife filed an application under Section 151 CPC praying therein that she be declared and appointed sole and absolute guardian and custodian of her minor child. No notice of such application was given to the appellant nor any advance copy was supplied to the petitioner personally or through his counsel. The abovesaid application under Section 151 CPC seems to have been moved as according to the respondent, some subsequent development indicated that the petitioner had proved himself to be unworthy, incapable and incompetent to act in the welfare of the child. The counsel for the petitioner sought his discharge but fact remains that the abovesaid application moved by the respondent under Section 151 CPC was allowed in a tearing hurry, observing that the petitioner had abandoned and withdrawn from the case and, therefore, the respondent wife was transposed as petitioner in the abovesaid guardianship petition and the same day, the main guardianship petition was also decided holding that giving guardianship of minor child, who was hardly 2 ½ years old to her father was not advisable and keeping in mind the interest and welfare of the child, mother was straightway declared sole, exclusive and absolute guardian and custodian of the minor child. Said order was eventually challenged by the petitioner in Supreme Court.
57. It needs no discerning eyes to fathom that transposition in the abovesaid case was in altogether atypical factual matrix.
58. The Hon’ble Supreme Court observed that the Family Court had exceeded its jurisdiction by hastening the entire proceedings and failed to guarantee the fairness and transparency in the process which was required to be followed for proper adjudication. It observed that the Family Court was required to adhere to the foundational principle of fairness of procedure and natural justice. In said case, obviously, no written statement was ever filed by the respondent wife. She did not even file any response to the application seeking amendment of the plaint. These applications were never disposed of by the learned Family Court and instead of contesting the main petition and the amendment applications, the respondent wife merely filed an application under Section 151 CPC seeking her appointment as sole and absolute guardian and such application was adjudicated in a hurried manner, without giving appropriate notice to the petitioner and similarly her request for transposition was also allowed, without even serving notice upon the petitioner and it was in the above said backdrop that the Hon’ble Supreme Court observed that there was no legal presumption about the factum of abandonment of proceedings and observed that the impugned orders were passed by the Family Court in a tearing hurry, may be in light of the observations made by the High Court in habeas corpus and contempt matters but that could not have been made the sole basis to determine the factum of fitness or otherwise of the petitioner for being a guardian of the minor child. Holding that such fact had to be decided on its own merits, the abovesaid order was set aside.
59. Quite evidently, the facts in the above case are totally distinguishable as everything therein was done in haste without giving proper notice to the other side. As noticed, in that case, there was no written statement either as the petition was not even contested by the wife.
60. Here, whereas, the things are totally in contrast.
61. The pleadings are complete. The evidence has already been led by the parties and transposition, in the above peculiar factual backdrop, merely means reversing the nomenclature of the parties, and nothing beyond. The purpose of the transposition would stand thwarted if the parties are directed to file pleadings afresh and to lead evidence afresh and therefore, the reliance on Aman Lohia (supra), in the present factual matrix, is totally misdirected.
62. This Court has gone through various precedents cited at the Bar.
63. Though there cannot be any doubt with respect to the settled legal position but fact remains that facts of the present case are absolutely unusual. Here, when the petition filed by the father was at the verge of disposal, there was unexpected development as the child went back to her father. In view of above, the father seems least interested in pursuing with the petition assuming that such custody has become final, for all purposes. However, merely because of such transitory movement of child from one parent to another, the proceedings, which are at the fag end of its legal journey, cannot be permitted to be closed. In such a peculiar backdrop, evidently there is no requirement of going for amendment in the pleadings or directing the parties to adduce evidence afresh. If that is allowed to happen, the very purpose of transposition would stand defeated, particularly when the learned Division Bench has noted that the procedural laws are subservient to the substantive justice and hyper-technical procedure cannot be insisted. Undoubtedly, jurisdiction vests strictly in terms of the provisions contained in any statute or enactment and cannot be conferred either by consent or by any order of a superior court. However, as already observed above, herein, it cannot be said that the jurisdiction of the Court stood snatched away.
64. As per the scheme of Hindu Minority and Guardianship Act, 1956, the father and mother both are natural guardians though father is up in the order of preference. Here, the case is between two parents only and no third party is involved. According to father, learned Trial Court cannot grant custody without deciding the aspect of guardianship and without ordering that father was no longer fit to continue as a guardian. This Court would not make any comment in this regard as the case is at the stage of final arguments and it will be always open to learned Family Judge to consider the aforesaid aspect in accordance with law. There cannot be any qualm with respect to the importance of pleadings but as already noticed above, the transposition has been permitted and upheld also and, therefore, learned Trial Court would interpret the pleadings in the aforesaid backdrop of the transposition.
65. In view of the above, there is, evidently, no merit in request seeking return or rejection of plaint or for that matter, in insisting upon amendment.
66. Finding no substance in the present petition, the same is, hereby, dismissed.
67. Since the matter is already fixed for final arguments, it is expected that both the sides would render due assistance and cooperation to the learned Family Court so that it can hear the arguments and dispose of the petition, as expeditiously as possible.
68. Nothing contained herein would be assumed to be an expression about the final merits and the learned Family Judge shall decide the case, without getting influenced by any observation made hereinabove.

(MANOJ JAIN)
JUDGE

SEPTEMBER 9, 2024/st/dr

CM(M) 2406/2024 Page 1 of 24