AMAN LOHIA versus KIRAN LOHIA

Citation: [2021] 2 S.C.R. 1131 · Decided: 17-03-2021 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

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Judgment (excerpt)

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AMAN LOHIA
v.
KIRAN LOHIA
(Transferred Case (Civil) No. 25 of 2021)
MARCH 17, 2021
[A.M. KHANWILKAR, B.R. GAVAI AND
KRISHNA MURARI, JJ.]
Guardians and Wards Act, 1890: s. 7 - Family Courts Act,
1984 - s. 7(g) – Power of the Court to make order as to guardianship
in respect of a minor – Guardianship petition by the father-appellant
seeking declaration as guardian – However, the mother-respondent
neither filed the written statement nor filed reply to two applications
u/Ord. VI r. 17 for amendment of pleadings, which are still pending
– Instead the mother filed application u/s. 151 CPC for declaring
and appointing her to be sole and absolute guardian and custodian
of the minor child, as also application u/Ord. VII r. 11 for dismissal
of guardianship petition, and one u/Ord. I r 10 and Ord. XXIII r. 1A
r/w s. 151 CPC to transpose her as petitioner in the guardianship
petition – Appellant not given notice on these applications and also
in the matter of discharge of his advocate - Family Court declared
the mother as the sole, exclusive and absolute guardian and
custodian of the minor child; and proceeding on the assumption
that the father had abandoned the proceedings, transposed the
mother as the petitioner in the guardianship petition – Propriety of
– Held: Family Court exceeded its jurisdiction by hastening the
entire proceedings – It did not follow the fair procedure prescribed
by the Act – There was non-compliance of the prescribed mandatory
procedure and infraction of principles of natural justice – Court
could not have entertained the transposition application filed by
the respondent ex parte without ensuring that it was duly served on
the appellant consequent to notice issued – Guardianship petition
has to be decided on its own merits taking into account possibility
of joint shared parenting arrangement and child-centric approach
with paramount welfare and interest of the minor child – Thus, the
ex parte orders passed on transposition application, as well as, on
the application for declaration that the respondent is the sole
guardian and custodian of the minor child, is set aside – Issuance
[2021] 2 S.C.R. 1131
1131
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SUPREME COURT REPORTS
[2021] 2 S.C.R.
of direction for revival of the guardianship petition and its remand
to the family court for fresh adjudication.
Family court – Adherence to practice and procedure
prescribed by the Statute – Held: Family Court is obliged to inquire
into the matter as per the procedure prescribed by law – It does not
have plenary powers to do away with the mandatory procedural
requirements in particular, which guarantee fairness and
transparency in the process to be followed and for adjudication of
claims of both sides – Nature of inquiry before the Family Court is
adjudicatory – It is obliged to resolve the rival claims of the parties
by adhering to the norms prescribed by the statue in that regard
and also the foundational principle of fairness of procedure and
natural justice – Natural justice.
Family court – Working of – Explained.
Practice and procedure: Abandonment of proceedings –
Inference of – Held: There can be no legal presumption about the
factum of abandonment of proceedings – Abandonment has to be
express or even if it is to be implied, the circumstances must be so
strong and convincing that drawing such inference is inevitable.
Disposing of the transferred case, the Court
HELD: 1.1 The Family Court exceeded its jurisdiction by
hastening the entire proceedings. Indubitably, the Family Court
is obliged to inquire into the matter as per the procedure
prescribed by law. It does not have plenary powers to do away
with the mandatory procedural requirements in particular, which
guarantee fairness and transparency in the process to be followed
and for adjudication of claims of both sides. The nature of inquiry
before the Family Court is, indeed, adjudicatory. It is obliged to
resolve the rival claims of the parties and while doing so, it must
adhere to the norms prescribed by the statue in that regard and
also the foundational principle of fairness of procedure and natural
justice. [Para 27][1155-F-G]
1.2 The provisions of the CPC are made applicable for
resolution of disputes falling under the 1984 Act. The Family
Court is deemed to be a Civil Court having all powers of such
Court. Section 9, 14, 15 and 16 plainly reveal that the Family
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Court is expected to follow procedure known to law, which means
insist for a 

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