Non-Production of Child - Fine & Detention passed without Notice & Minimal Enquiry - illegal [JUDGMENT]

The Guardians and Wards Act, 1890 - Section 45 - Penalty for Contumacy – Orders of fine and detention passed without notice to the respondent and minimal enquiry into the cause for non-production of child, would be violative of principle of natural justice and therefore illegal.

Under Section 45(1), if the person in custody of the child disobeys the order passed under Section 12 (1), he incurs the liability for payment of prescribed amount of fine as well as detention in civil prison. Unlike the Scheme of the Code dealing with execution of decrees and orders of civil courts, Section 45(1) does not seem to limit the order of detention to any specific period. The detention takes its course until the child is produced or guardian in default undertakes to cause production of the child in compliance with the order of the court. The undertaking made by the recusant guardian, in our view, may be accepted by the court only in a case where it is made with bona fide intention to cause production of the child.

The Guardians and Wards Act, 1890 – Section 25 (2) - The Code of Criminal Procedure, 1973 - Section 97 - Arrest and production of the child through issue of search warrant in appropriate cases - Such power is rarely exercised, but is confined to limited situations arising under Section 25 (1). Section 25 is an independent provision which can stand apart from Section 12(1). These two provisions may overlap in certain cases. Section 25, however, is no remedy for breach of orders passed under Section 12 (1) of the G&W Act though the converse may be true.

The Guardians and Wards Act, 1890 - Section 12 (1) - Custody of the Wards - Power to make interlocutory order for production of minor and interim protection of person and property – Power to pass interim orders for custody of minor wards accrues only to the Family Courts.

Nowhere in the FC Act or Rules thereunder any specific provision empowering the Family Courts to grant or refuse orders for interim custody of minor children is seen incorporated. After the advent of the FC Act, the Family Courts have exclusive jurisdiction to entertain and decide matters relating to guardianship and custody of minor children, by virtue of powers conferred by Section 7 and 8 of the FC Act. Section 7 of the FC Act enacts that the powers formerly exercised by the District Court under the G&W Act in relation to guardianship and custody of minor wards shall stand transferred to the Family Courts, on their establishment in the notified places. Indubitably, therefore, the power to pass interim orders for custody of minor wards accrues only to the Family Courts, by virtue of provisions in Section 12 of the G&W Act. In substance, the Family Courts called upon to issue orders for interim custody are necessarily to trace its source of power to Section 12 of the G&W Act than elsewhere. No provision is made in the FC Act or Rules prescribing the mode of enforcement of an order passed under Section 12 (1) of the G&W Act. When the FC Act is silent, relevant provisions for enforcement of such orders shall necessarily be traced from the G&W Act itself.

The Family Courts Act 1984 - Section 10 (1) - The Code of Civil Procedure, 1908 - Order XXXIX of Rule 2-A - Consequence of disobedience or breach of injunction – An order of a Family Court for the custody of minor children, though being in the nature of a directive, and an interim order of mandatory injunction, cannot be identified with an order passed by a civil court in accordance with Order XXXIX Rules 1 and 2 or other provisions of the Code.

It is apparent from the above provision that orders of civil courts under Order XXXIX and Rule 1 and 2 or other provisions of the Code, if any alone are made enforceable under Order XXXIX Rule 2-A of the Code. An order of a Family Court for the custody of minor children, though being in the nature of a directive, and an interim order of mandatory injunction, cannot be identified with an order passed by a civil court in accordance with Order XXXIX Rules 1 and 2 or other provisions of the Code. This is so, notwithstanding the fact that all the provisions of the Code are also applicable to the Family Courts subject to the restrictions under Section 10 (1) of the Family Courts Act 1984. Section 10 of the FC Act restricts application of the provisions of the Code and also other laws to the Family Courts in matters for which the FC Act and Rules framed thereunder contain provisions. In the event of any inconsistency between the provisions of the FC Act and other statues, Section 20 of the FC Act mandates that the FC Act alone shall prevail. [Para 8]

Facts of the Case

Order XXXIX Rule 2-A of the Code was misapplied to this case by the petitioner. The appropriate legal remedy available to the petitioner is contained only in Section 45 (1) of the G&W Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.

O.P.(FC)No.571 of 2018

Dated this the 12th day of February, 2019

AGAINST THE ORDER/JUDGMENT IN OPGW 645/2015 of FAMILY COURT, CHAVARA

PETITIONER / PETITIONER:

ANSAR

BY ADV. SRI.R.GOPAN

RESPONDENTS:

NADEERA AND OTHERS

J U D G M E N T

T.V. Anilkumar, J.

The petitioner, who filed this original petition invoking jurisdiction of this court vested under Article 227 of the Constitution of India, is the petitioner in OP.(G&W) No.645/2015 on the files of the Family Court, Chavara, filed for declaring him as guardian of the minor wards, Muhammed Rifan and Aisha Suhana.

2. He obtained an interim order from the Family Court, Chavara on I.A.No.1166/2017 on 19.9.2017 directing his wife, the respondent herein, to handover custody of the two minor wards to him on every 2nd Saturday and succeeding Sunday, until further orders. None of the parties challenged the order before any superior forum and it became final. The petitioner's complaint is that, he was prevented by the respondent from securing interim custody of the wards by her willful act of disobeyance of the order. He therefore sought to enforce the order through I.A.No.637/2018 before the court below by invoking Order XXXIX of Rule 2-A of the Code of Civil Procedure (for short 'the Code') to which no written objection seems to have been filed by the respondent so far. It is alleged that, in spite of a series of postings, the court below is reluctant to take up and dispose of I.A.No.637/2018. The petitioner has, in the above circumstances, approached this court seeking to issue a direction to the court below for expeditious disposal of I.A.No.637/2018.

3. In the nature of the limited relief proposed to be granted to the petitioner, we dispense with notice to the respondent. This court had obtained a report called for from the learned Judge, Family Court, Chavara, about the maximum time required for disposal of I.A.No.637/2018.

4. The learned Judge has reported that, after giving to the respondent a few postings for filing objections to I.A.No.637/2018, she was always ready to dispose of the matter in accordance with law. But she was dissuaded from proceeding any further, since learned counsel for the petitioner appearing in the court below reported that the petitioner lost faith in the court. The learned Judge was also informed that steps were being taken through this court for transfer of the case from her court to another court. She therefore became hesitant to proceed further with the case and was waiting for orders of transfer from this court. The learned Judge in the report made a request to this court to spare her from deciding the case so that unfounded allegations, if any, against her in future could be obviated. However, she conveyed her readiness to dispose of the O.P. within a period of three months, if she is called upon by this court to take up the matter.

5. When we put to the learned counsel for the petitioner appearing in this O.P. the contents of the report sent by the learned Judge, he submitted that the petitioner has not expressed loss of confidence as alleged, but only keeps faith in the learned Judge. We take on record the submission made by the learned counsel. He persuaded us to issue necessary direction to the court below for urgent disposal of I.A.637/2018 within a time frame to be fixed by this court.

6. Since the petitioner has expressed his continued faith in the presiding officer, we are inclined to allow this O.P. and to direct the court below to dispose of the I.A.No.637/2018 within three months from the date of production of a copy of this judgment, as agreed upon by the learned Judge. We would only normally have closed this O.P. without proceeding any further but for the emergence of a new situation of law calling for our immediate attention.

7. Evidently the request made by the petitioner in the I.A.No.637/2018 is to initiate proceedings against the respondent under Order XXXIX Rule 2-A of the Code and to prosecute her, the mother of minor wards, for the alleged violation of order dated 19.9.2017. Order XXXIX Rule 2-A does not appear to us to provide the petitioner with appropriate legal remedy for enforcing the impugned order passed by the Family Court, Chavara under Section 12 (1) of the Guardians & Wards Act 1890 (for short 'the G&W Act').

8. Order XXXIX Rule 2-A reads thus;

2-A. Consequence of disobedience or breach of injunction-- (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

It is apparent from the above provision that orders of civil courts under Order XXXIX and Rule 1 and 2 or other provisions of the Code, if any alone are made enforceable under Order XXXIX Rule 2-A of the Code. An order of a Family Court for the custody of minor children, though being in the nature of a directive, and an interim order of mandatory injunction, cannot be identified with an order passed by a civil court in accordance with Order XXXIX Rules 1 and 2 or other provisions of the Code. This is so, notwithstanding the fact that all the provisions of the Code are also applicable to the Family Courts subject to the restrictions under Section 10 (1) of the Family Courts Act 1984 (for short 'the FC Act'). Section 10 of the FC Act restricts application of the provisions of the Code and also other laws to the Family Courts in matters for which the FC Act and Rules framed thereunder contain provisions. In the event of any inconsistency between the provisions of the FC Act and other statues, Section 20 of the FC Act mandates that the FC Act alone shall prevail.

9. In the case on hand, the impugned order of the Family Court for custody of the wards was passed indisputably under Section 12 (1) of the Guardians and Ward Act, 1890 (for short the G&W Act). Section 12(1) of the Act reads as follows:

12. Power to make interlocutory order for production of minor and interim protection of person and property.-(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 of the person or property of the minor as it thinks proper.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for the production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this Section shall authorise- (a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or (b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.

Nowhere in the FC Act or Rules thereunder any specific provision empowering the Family Courts to grant or refuse orders for interim custody of minor children is seen incorporated. After the advent of the FC Act, the Family Courts have exclusive jurisdiction to entertain and decide matters relating to guardianship and custody of minor children, by virtue of powers conferred by Section 7 and 8 of the FC Act. Section 7 of the FC Act enacts that the powers formerly exercised by the District Court under the G&W Act in relation to guardianship and custody of minor wards shall stand transferred to the Family Courts, on their establishment in the notified places. Indubitably, therefore, the power to pass interim orders for custody of minor wards accrues only to the Family Courts, by virtue of provisions in Section 12 of the G&W Act. In substance, the Family Courts called upon to issue orders for interim custody are necessarily to trace its source of power to Section 12 of the G&W Act than elsewhere. No provision is made in the FC Act or Rules prescribing the mode of enforcement of an order passed under Section 12 (1) of the G&W Act. When the FC Act is silent, relevant provisions for enforcement of such orders shall necessarily be traced from the G&W Act itself. We, in this respect, refer to Section 45 (1) (a) of the G&W Act which reads as below:

45. Penalty for contumacy.- (1) In the following cases, namely- (a) if a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under Section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under Section 25, sub-section (1), or

(b) ------------xxx---------xxxx--------xxxx

(c) -------------xxxx---------xxxx-----xxxx

the person, guardian or representative, as the case may be, shall be liable by order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until he undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.

Under Section 45(1), if the person in custody of the child disobeys the order passed under Section 12 (1), he incurs the liability for payment of prescribed amount of fine as well as detention in civil prison. Unlike the Scheme of the Code dealing with execution of decrees and orders of civil courts, Section 45(1) does not seem to limit the order of detention to any specific period. The detention takes its course until the child is produced or guardian in default undertakes to cause production of the child in compliance with the order of the court. The undertaking made by the recusant guardian, in our view, may be accepted by the court only in a case where it is made with bona fide intention to cause production of the child.

10. In this context, we would also like to observe that, orders of fine and detention passed without notice to the respondent and minimal enquiry into the cause for non-production of child, would be violative of principle of natural justice and therefore illegal. We are also not forgetful of existence of a different but independent power possessed by the Family Courts under Section 25 (2) of the G&W Act to cause arrest and production of the child through issue of search warrant under Section 97 of the Code of Criminal Procedure, 1973 (Section 100 of old Code) in appropriate cases. But, such power under Section 25 (2) of the G&W Act is rarely exercised, but is confined to limited situations arising under Section 25(1). Section 25 is an independent provision which can stand apart from Section 12(1). These two provisions may overlap in certain cases. Section 25, however, is no remedy for breach of orders passed under Section 12 (1) of the G&W Act though the converse may be true.

11. Suffice it to say that Order XXXIX Rule 2-A of the Code was misapplied to this case by the petitioner. The appropriate legal remedy, in view of the foregoing discussion made by us, available to the petitioner is contained only in Section 45 (1) of the G&W Act.

In the result, we allow the O.P. directing the Family Court, Chavara to take up I.A.No.637/2018 for urgent consideration and dispose it of within a period of 3 months from the date of production of copy of this judgment. The court below will permit the petitioner to make necessary amendments in I.A.No.637/2018 if he so desires.