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Akhtar Begum Vs. Jamshed Munir - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 99 of 1978
Judge
Reported inAIR1979Delhi67; ILR1978Delhi249
ActsGuardian and Wards Act, 1890 - Sections 12 and 25; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantAkhtar Begum
RespondentJamshed Munir
Advocates: D. Latifi,; B.T. Singh and; R.P. Bansal, Advs
Cases ReferredMunicipal Corporation of Delhi v. Shri Mohd. Shafi
Excerpt:
(i) guardians and wards act (1890) - sections 25 & 12--application under--guardianship of daughter--hanafi law of sunni muslims--whether temporary custody of the daughter should be with the mother--factors for consideration.; in the instant case, the petitioner claimed the custody of her daughter farah aged about 7/8 years, born out of wedlock of the petitioner and respondent. the parties are sunni muslims governed by the hanafi law of sunni muslims. certain differences are said to have arisen between the petitioner and the respondent with the result that the petitioner came away to delhi in 1976. the respondent divorced the petitioner by a letter dated october 30, 1977. the petitioner claimed the custody of her daughter farah but it was denied to her by the respondent. this led to.....prakash narain, j. (1) this revision petition is directed against an order dated january 21, 1978 passed by shri s. p. singh chaudhary, guardian judge, delhi, dismissing the petitioner's application under section 12 of the guardians and wards act, 1890.(2) the petitioner and the respondent are sunni muslims governed by the hanafi law of sunni muslims. they were married at delhi (claimed by the petitioner as her home town) in june, 1954 according to the rites of their personal law. after marriage the parties resided at aligarh. two children were born out of the wedlock, a son, named jahangir, now aged about 12 years and a daughter, named parah, now aged about 7/8 years. certain differences are said to have arisen between the petitioner and the respondent with the result that the petitioner.....
Judgment:

Prakash Narain, J.

(1) This revision petition is directed against an order dated January 21, 1978 passed by Shri S. P. Singh Chaudhary, Guardian Judge, Delhi, dismissing the petitioner's application under Section 12 of the Guardians and Wards Act, 1890.

(2) The petitioner and the respondent are Sunni Muslims governed by the Hanafi Law of Sunni Muslims. They were married at Delhi (claimed by the petitioner as her home town) in June, 1954 according to the rites of their personal law. After marriage the parties resided at Aligarh. Two children were born out of the wedlock, a son, named Jahangir, now aged about 12 years and a daughter, named Parah, now aged about 7/8 years. Certain differences are said to have arisen between the petitioner and the respondent with the result that the petitioner came away to Delhi in 1976. Subsequently, Farah also came to stay with her at Delhi. In March/April, 1977, it is said, the petitioner received letters and representations from her son, Jahangir, and others which forced her to send Farah to Aligarh where the respondent is staying. The respondent divorsed the petitioner by a letter dated October 30, 1977. The petitioner claimed the custody of her daughter Farah but it was denied to her by the respondent. This led to her filing a petition under Section 25 of the Guardians and Wards Act, hereinafter referred to as the Act, in the Court at Delhi. That petition has been registered as Guardianship Case No. 34 of 1977. The petitioner also filed an application under Section 12 of the Act. Both these have been opposed by the respondent. By the impugned order the petitioner's application under Section 12 of the Act has been disposed of. It has been dismissed except for a direction that the respondent is to produce the minor Farah in court on every first Friday of the month, if it be not a holiday, for an interview with her mother, the petitioner, in court between the hours of 2.30 P.M. and 3.30 P.M. The petitioner assails the said order.

(3) The question that arises for consideration in the present case is whether the High Court can interfere with the impugned order under Section 115 of the Code of Civil Procedure. There is nothing specific in the Act, one way or the other, making the provisions of the Code of Civil Procedure applicable or .staling that the same would not be applicable to proceedings under the Act. Certain orders have been made appealable to the High Court by Section 47 of the Act. thereforee, the court which passed the impugned order is subject to the appellate control of the High Court. In that view of the matter even if a revision strictly speaking does not lie under Section 115 of the Code this court could exercise supervisory jurisdiction under Article 227 of the Constitution of India. This point as such was not raised by either party and so, it is not necessary to decide it. Whether it be under Section 115 of the Code or Article 227 of the Constitution if the impugned order can be interfered with in law, this court would have the jurisdiction to do so. Before me the case was argued as if Section 115 of the Code was applicable. All that was said was that the High Court should not interfere with the impugned order keeping in view the law with regard to interference in revision under Section 115 of the Code.

(4) Section 115 of the Code as amended by the Code of Civil Procedure (Amendment) Act, 1976, reads as under :-

'115.(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and it such subordinate Court appears-

(A)to have exercised a jurisdiction not vested in it by law, or

(B)to have failed to exercise a jurisdiction so vested, or

(C)to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit :

PROVIDED that the High Court shall not under this section, vary or reverse any order made, or 'any other order deciding an issue, in the course of a suit or other proceeding, except where-

(A)the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(B)the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2)The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies. either to the High Court or to any Court subordinate thereto.

ExplanationN: In this section, the expression any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'

TWOpoints arise for consideration. First, whether the impugned order could be interfered with as being vocative of clauses (a), (b) or (c) of sub-section (1) of Section 115. Secondly, whether the impugned order is an order deciding an issue in the course of a suit or other proceeding which finally disposes of the suit or the other proceeding or if the impugned order is allowed to stand it would occasion a failure of justice or cause irreparable injury to the petitioner. There is no dispute that the impugned order is not appealable under Section 47 of the Act.

(5) Now the impugned order has been passed on an application moved by the petitioner under Section 12 of the Act. The relevant part of that section reads as under:-

'12(1)The Court may direct that the person if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.'

THEtrial Court has dismissed the application by treating it as one for 'interim custody' pending the decision of the petition under Section 25 of the Act. Its approach has been that the most important consideration in deciding the application was to keep in view the welfare of the minor. It was also conscious of the fact that, perhaps, it had no jurisdiction to entertain the application.

(6) In considering the welfare of the minor, the trial Court was swayed by four considerations, viz. (a) the education that Farah is receiving in a school at Aligarh and its being disrupted if she was given in the custody of the petitioner, (b) the respondent being the natural guardian of the minor, (c) the financial and social status of the respondent and (d) desirability of Farah staying with her father, the respondent and her brother, Jahangir, at Aligarh. I may mention that apart from just noticing the contention made on behalf of the petitioner that under the Hanafi Law of Sunni Muslims, the mother is entitled to the custody of the minor child, there is no detailed discussion by the trial Court on this aspect.

(7) Before I proceed to dilate on the scope of Section 115 of the Code I may notice some of the relevant provisions of the Act. Section 6 lays down that in the case of a minor nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject. This would mean that the personal law applicable to the Hanifi Sunni Muslims would be attracted in consideration of the respective rights and claims of the parties.

(8) Section 7 of the Act empowers the court to appoint a guardian of the person or property, or both, of the minor or make a declaration regarding a person that he/she is the guardian of the person or property, or both, of a minor. Section 8 sets out the persons who are entitled to apply for an order under Section 7 of the Act. Section 9 of the Act reads as under :-

'9.Court having jurisdiction to entertain application.-

(1)If the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2)If the application is with respect to the guardianiship of the property of minor, it may be made either to the District: Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3)If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.'

(9) Section 10 lays down what should be the contents of an application under Section 7 of the Act. Section 11 provides for the procedure to be followed by the Court on the admission of an application. I have already read Section 12 earlier. Section 13 provides that court may hear evidence adduced in support of the application moved to it. Section 17 lays down that 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. In considering the welfare of the minor, his or her age, sex, religion, the capacity and character of the proposed guardian, nearness of kin to the minor, wishes if any, of a deceased parent, etc. have to be kept in view. Section 25 falls in Chapter 3 of the Act which sets out the duties, rights and liabilities of a guardian. It deals with the title of a guardian to the custody of his or her ward.

(10) Thus we see that a guardian is appointed by a petition under Section 7 of the Act. Prima facie, when a person wants to be appointed or declared as a guardian of the person or property or both of a minor he has to apply under Section 7 of the Act. A natural guardian is not required to move a petition under Section 7 to have himself appointed as such, but if his right as a guardian is questioned he may get a declaration of his being the legal guardian of a minor's person or property or both. Section 25 of the Act operates in an entirely different field. This enables a guardian to move the court, inter alia, to get custody of a minor's person. 'This provision may also be availed of by a person to get custody of a minor if in law that person is entitled to claim custody and the minor has been removed from lawful custody. At this stage it is neither necessary not proper for me to comment upon whether the petitioner could or could not prefer the petition under Section 25 of the Act. She has alleged that Farah was removed from her custody. The guardian court is still to deal with her contentions. Section 12 of the Act operates in yet another field. This provision enables the court to direct production of a minor and pending decision of a petition under Section 7 or Section 25 pass orders in the nature of interim orders giving temporary custody of the minor to anyone the court thinks fit. Removal of a minor as contemplated by Section 25 may mean not only from actual but also from judicial or legal custody including refusal by an unauthorised person to deliver back the minor, as observed in Geeta and others v. Ratan Dhuraji, : AIR1966MP221 ; or it may mean from actual custody and not constructive dustody as held by the Bombay High Court in Shivawwa v. Chenbasappagowda A.I.R. 1941 Bom 344 . At this stage it would be inexpedient to determine that aspect. We are only concerned with temporary custody once the production of the minor has been ensured by invoking Section 12 of the Act.

(11) The petitioner claims not only custody of her minor daughter under Section 25 of the Act but also temporary custody by invoking the personal law of the parties.

(12) According to the personal law of the parties where the husband and wife are residing is the proper place of Hizanit while the marriage subsists. This means that the husband cannot leave the city where they are residing and take the child with him out of the dustody of the woman to whom it properly belongs, until the child is independent of her care; and if the wife should desire to leave the city he can prevent her, whether she have the child with her or not. (See Digest of Mohummdan Law by Neil B. E. Baillie). According to Baillie if a separation talkes place between a husband and wife and her iddut has expired, she may take the child with her to her own city, it the marriage took place there. But she cannot do so if the marriage did not take place in her own city, unless the city be so near the place of separation that if the husband should leave the latter in the morning to visit the child, he can return to his own house before night. Nor can she go to any other city than her own or that in which the contract of marriage took place on any other conditions.

(13) According to the Hedaya (Commentary by Charles Hamilton) if a separation takes place between a husband and wife, who are possessed of an infant child, the right of nursing and keeping it rests with the mother, because it is recorded that a woman once applied to the Prophet, saying : '0 Prophet of God! this is my son, the fruit of my womb, chershed in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care;'-to which the Prophet replied : 'thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger'. It is also recorded in the sacred writings of the Muslims that 'the spittle of the mother is better for thy child than honey, O Omar !' This is said to have been addressed by Siddeek to Omar on the occasion when Omar and his wife had separated and dispute arose as to the custody of the child. According to Muslim Law the father is the guardian of his children irrespective of sex but the mother is entitled to the custody of her son till the age of about seven years and of an infant daughter till she attains the age of puberty. The Muslim Law makes a distinction between guardianship and custody of infants and those children who can be said to be free of the mother's care. The responsibility for maintenance is on the father irrespective of who has the custody; for it is said in Hedaya that 'the Nifka or subsistence of the child is incumbent upon the father.' If the mother refuses to keep the child there is no constraint upon her that she must have the custody. In such a case the Muslim Law provides that after the mother an infant should be given into the custody of mother's mother, how high so ever, and so on so forth. The father's right to the custody of an infant is subject to-(a) the mother not being held entitled to custody owing to some disqualification; and (b) welfare of the child. Custody of an infant child is called Hizanit, literally meaning the care of infant child. To quote from Hedaya :-

'THEright of Hizanit, with respect to a male child, appertains to the mother, grandmother, or so forth, until he become independent of it himself, that is to say, become capable of shifting, eating, drinking, and performing the other natural functions without assistance; after which the charge devolves upon the father, or next paternal relation entitled to the office of guardian, because, when thus far advanced, it then becomes necessary to attend to his education in all branches of useful and ornamental science, and to initiate him into a knowledge of men and manners, to effect which the father or paternal relations are best qualified-(Kasaf says that the Hizanit, with respect to a body, ceases at the end of seven years, as in general a child at that age is capable of performing all the necessary offices for himself, without assistance).-But the right of Hizanit with respect to a girl appeartains to the mother, grandmother, and so forth, until the first appearance of the menstrual discharge (that is to say, until she attains the age of puberty), because a girl has occasion to learn such manners and accomplishments as are proper to women, to the teaching of which the female relations are most competent; but after that period the charge of her properly belongs to the father, because a girl after maturity, requires some person to superintend her conduct, and to this the father is most completely qualified. It is recorded from Mohammed that the care of a female child devolves upon the father as soon as the begins to feel the carnal appetite, as she then requires a superintendence over her conduct; and it is universaly admitted that the right of Hizanit of girls is restricted to that period, with respect to all the female relations except the mother and grandmother.'

(14) Hedaya also agrees with Baillie that if a divorced woman be desirous of removing with her child out of the city, she is not at liberty to do it ; but yet if she remove with her child out of a city, and go to her native place, where the contract of her marriage, was executed, in that case her removal is lawful, because the father is considered as having also undertken to reside in that place, both in the eye of the law, and according to common usage Quoting the Prophet, it is laid down, 'Whoever marries a woman of any city is thereby rendered a Denizen of that city.'

(15) The above principles of the personal law of the parties hereto have been noticed with approval, by a Division Bepch .of this Court in Mrs. Shama Beg v. Khawaja Mohnddm Ahmed , and have to be kept in view in deciding even an application under Section 12 of the Act by virtue of the mandate of Section 6 If a Court does not keep that in view it would be acting illegally and with material irregularity. Indeed, even sub-section (1) of Section 17 of the Act stipulates that a guardian has to be appointed, inter alia, consistent with the personal law by which the parties are governed. In this case the trial Court seems to have been more influenced by the general principles of the law of guardianship and lost sight of the personal law.

(16) This brings me to the consideration of the scope of interference under Section 115 of the Code. Section 115, as it existed prior to the amendment, has been subject of a large number of judicial decisions. Its scope has been dilated upon by various courts including the Supreme Court. I may notice some of the decisions.

(17) In M. L. Sethi v. Shri R. P. Kapur, : [1973]1SCR697 , it was held that the jurisdiction of the High Court under Section 115 of the Code of Civil Procedure is alimited one. This section is not directed against conclusions of law and fact in which question of jurisdiction is not involved. The appeal arose out of an order passed on an application for discovery of documents filed by the plaintiff. The trial Court passed an order directing the defendant to make discovery on affidavit. The defendant did not file the affidavit. Instead it first applied for adjournment and on its refusal filed a revsion petition in the High Court of Allahabad. The High Court set aside the order of the trial Court observing that the proceedings under Rules 6 and 7 of Order 33 were summary in character and the sophisticated procedure for discovery should not have been resorted to by the appellant. At the same time the High Court observed that the trial Court acted with material irregularity as it did not consider the question of the necessity of the discovery of documents or the relevancy of the documents of which discovery was sought and also for the reason that in ordering discovery of documents relating to personal account and passbook it overlooked the right of the respondent to claim privilege. The Supreme Court did not agree with the High Court's view regarding discovery of documents. It also observed that the High Court in passing its order was really interfering with the discretion of the trial Court in the matter of adjournment. The Supreme Court referred with approval to the decision of the Privy Council in Rajah Amir Hassan Khaa v. Sheo Baksh Singh (1884) 2 I.A. 237 and in BalakrishnaUdayar v. Vasudeva Aiyar 44 I.A. 261. It quoted what the Privy Council had said in N. S. Venkatagiri Ayyangar, v. Hindu Religious Endowments Board, Madras (1949) 76 I.A. 67 : 'Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law.'

(18) Mathew, J. who spoke for the Court then went on to dilate on the meaning of the word 'jurisdiction'. He observed; 'The word 'jurisdiction' is a verbal cast of many colours'. [After referring to the speeches of Lord Baid, Lord Reid and Lord Pearce in Anisminic Ltd.. v. Foreign Compensation Commission (1969) 2 A.C. 147. The dicta of the majority of the House of Lord in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have no right to deal', 'imposing an unwarranted condition' or 'addressing themselves to a wrong decision'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (See H.W.R. Wade, 'Constitutional and Administrative Aspects of the Anismenic case', Law Quarterly Review, Vol. 85, 1969 P. 198). Why is if that a wrong decision on a question of limitation or rest judicata was treated as a jurisdictional error and liable to be interfered with in revision It is a bit difficult to understand how an erroneous decision on a question of limitation or rest judicata would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.'

(19) In Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others, : [1964]3SCR495 the Supreme Court drew a distinction between two classes of cases, viz., one in which the court decides the question of law pertaining to jurisdiction and the other when it decides a question within its jurisdiction. Dealing with the provisions of the Limitation Act it observed that under Section 3 of that Act it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed The Court has no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the Subordinate Court comes to erroneous decision, it is open to the High Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The question whether there was a sufficient cause is exclusively within the jurisdiction of the Court and the Court can decide it rightly or wrongly. In revision the High Court would not be able to interfere with such an order.

(20) In Pandurang Dhondi Chougule and others v. Maruti Hari Jadhav and others, : [1966]1SCR102 , a bench of five Judges approved its earlier decision in Manindra Land and Building Corporation Ltd. (supra). It was held :-

'......IT is true that in order to afford guidance to sub-ordinate Courts and to avoid confusion in the administration of the specific law in question, important questions relating to the construction of the operative provisions contained in such an Act must be finally determined by the High Court but in doing so, the High Court must enquire whether a complaint made against the decision of the subordinate Court on the ground that it has misconstrued the relevant provisions of the statute, attracts the provisions of S. 115. Does the alleged misconstruction of the statutory provision have relation to the erroneous failure to exercise jurisdiction, or the exercise of jurisdiction, or the exercise of jurisdiction illegally or with material irregularity by the subordinate Court These are the tests laid down by S. 115 of the Code and they have to be borne in mind before the High Court decides to exercise its revisional jurisdiction under it.'

(21) In M/s D. L. P. Housing and Construction Co. (P) Lid.,, V. Samp Singh and others, : [1970]2SCR368 , it was observed that while exercising the jurisdiction under Section 115 C.P.C. it is not competent for the High Court to correct errors of fact, however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words 'illegality' and 'with material irregularity' as used in clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either lo breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.

(22) In The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, : [1977]2SCR10 , the Supreme Court held that interference by the High Court with concurrent findings was unjustified as the Court had overlooked the principles governing interference u/s 115 Civil Procedure Code The judgment of a learned Single Judge of this Court who interfered under Section 115 was not approved and the principles enunciated in the earlier decisions were reiterated.

(23) It was urged that the conservative approach of interference under Section 115 Civil Procedure Code that interference can only be when there is an error involving a question of jurisdiction has been deviated from in M. L. Sethi's case : [1973]1SCR697 and in that view of the matter if there is a gross error of law, this Court should interfere in revision. The speech of Mathew, J. already noticed by me earlier was relied on in support of this submission. In my view, Mathew, J. did not express an opinion much different from the opinions expressed in the other cases noticed above. To repeat what was said by the learned Judge, 'It is a bit difficult to understand how an erroneous decision on a question of limitation or rest judicata would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the court.' I have in Civil Revision No. 94 of 1974, Municipal Corporation of Delhi v. Shri Mohd. Shafi, said in my judgment dated September 27, 1974 (13), that a decision of the lower appellate Court or a lower Court may be correct or incorrect; if it was given within its jurisdiction and there was no defect of jurisdiction or of procedure resulting in failure of justice, a revision petition would not be maintainable. Even today I am of the same view. Indeed, one has to keep in mind the distinction between a case in which the court decides a question of fact or law pertaming to jurisdiction and a case in which it decides a question within its jurisdiction; or where the relevant law has not been applied; or the error of law vitally affected the determination of the issue in a proceeding. It is this test which one has to apply in order to find out whether the impugned order in the present case is or is not revisable under Section 115 of the Code of Civil Procedure.

(24) Even the amended Section 115 of the Code does not very much change the settled law with. regard to interference by the High Court in its supervisory jurisdiction. Clause (a) of the proviso to sub-section (1) of Section 115 of the Code postulates that the High Court shall not interfere unless the impugned order is such which, if reversed, would decide the list between the parties or at least bring to an end the 'proceedings' in which the order has been made. In the present case the list between the parties was with regard to the temporary custody of the minor, irrespective of determination of the petition under Section 25. The proceedings under Section 12 of the Act may be regarded as interim proceedings in the sense that a petition under Section 25 is pending. All the same had the order been made in favor of the petitioner, the dispute as to temporary custody would end. Clause (b) speaks of failure of justice or causing irreparable injury to the party. No doubt the impugned order is being challenged by the petitioner but it is not an order of such a nature which can be said to cause irreparable injury to her. Similarly, giving of temporary custody to someone other than the petitioner cannot be said to occasion a failure of justice although the order may not be to the liking of the petitioner.

(25) The jurisdiction of the court below was invoked by the petitioner first by moving a petition under Section 25 of the Guardians and Wards Act and then an application under Section 12 of the Act. The petitioner's case is that the Delhi Courts have jurisdiction to adjudicate upon her petition and application. This will depend upon whether the minor Farah was 'removed' from the custody of the petitioner and on whether Section 25 postulates actual custody or juridical custody. The Court below has, however, for the present exercised jurisdiction. In doing so it has not kept in view the provisions of the Act and has noticed the argument advanced on behalf of the petitioner that under the personal law of Hanafi Sunni Muslims she is entitled to the custody of her minor daughter only in passing. The question that thus arises is whether the jurisdiciton exercised has been exercised illegally and with material irregularity.

(26) It has been urged that if under the Hanafi Sunni Muslim Law the petitioner, as mother, is in law entitled to the custody of her minor daughter, then not giving her custody at this stage amounts to failure to exercise a jurisdiction vested in court. I do not agree. As I have said earlier, the point in issue is whether the jurisdiction as exercised can be said to have been exercised illegally and with material irregularity. The Court below has set out all the factors which it has taken into consideration in deciding the question of temporary custody (wrongly described as interim custody) in paragraph 6 of its order. No doubt the court has been more influenced by the educational aspect of bringing up the child, all the same I must say that the discretion has been exercised in total disregard of law and so without application of mind. 'The Court has looked into letters produced on the record which were read by consent of both the parties without being formally proved. One other factor which appears to have weighed with the court below is the aspect of territorial jurisdiction. The Courts at Delhi may or may not have territorial jurisdiction, and that is a matter which, as observed by the Court below, has to be decided after framing an issue and recording evidence, all the same for the purposes of an order under Section 12 the Court below has exercised jurisdiction and disposed of the application.

(27) Looking at the scheme of the Act it would appear that an application under Section 12 is moved to ensure production of the minor child and make provisions for its temporary custody pending decision of a petition under Section 7 or Section 25 of the Act. To me it seems that the personal law of the parties enjoining custody of a minor girl being given to the mother till minor attains the age of puberty is a vital factor in determining even the question of temporary custody. The Court below has not kept this aspect in view. That would bring the impugned order within the mischief of 'exercising jurisdiction illegally, that is, in breach of some provision of law' as held by the Supreme Court in M. L. Sethi's case (supra).

(28) The personal law of the parties would be an important facet of the welfare of the child and must be taken into consideration. The order of the Court below is liable to be interfered with not only because the personal law has been ignored but also because in considering the welfare of the minor a very salient feature, namely, the love and attention which a little girl would receive from her mother, has not been given due importance. I am surprised that the child, Farah, did not at all express her feelings when interviewed by the Court below. I had occasion to talk to the child and she, in my opinion, is a bright child and capable of expressing her views. On the question of preference, she told me that I may give such decision as I thought best. It was an answer which normally would have come from a fairly mature person. When asked whether she would like to live with her mother, she said 'Yes'. At the same time she did express great fondness for her father and her brother. In this view of the matter, in my opinion, the temporary custody of Farah should have been given to her mother, the petitioner, and I order accordingly.

(29) Considering the welfare of the child there is one aspect on which I may make some observations. The child is being educated at Aligarh. Her examinations are due to start from April 10, 1978. It would be unwise and incorrect for Farah to be disturbed during her examinations. The petitioner will be entitled to the custody of her daughter after the child's examinations are over. The respondent shall deliver Farah unto the keeping of the petitioner within one week of Farah's examinations being over. The custody that is being given to the petitioner is purely temporary custody. The order passed by me is without prejudice to the contention of the parties regarding the maintainability of the petition filed under Section 25 of the Act or the jurisdiction of Courts at Delhi to entertain the same. If it is held ultimately that the Courts at Delhi have no jurisdiction or if it is held that the petition as filed is not maintainable or if the petition after trial is dismissed, the petitioner may have to hand back the custody of Farah to the respondent subject to such orders as may be passed by the court.

(30) The revision petition is accepted in terms of the above directions. Parties will bear their own costs in this court.

P.S:-Mr. R. P. Bansal for the respondent.


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