Madhuri Shrivastav And Another vs Sri Praveen Kumar Shrivastav And 3 ...
2021 Latest Caselaw 3107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 10
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6794 of 2019
 

 
Petitioner :- Madhuri Shrivastav And Another
 
Respondent :- Sri Praveen Kumar Shrivastav And 3 Others
 
Counsel for Petitioner :- V.R. Tiwari
 
Counsel for Respondent :- Praveen Kumar Srivastava ( In Person),Dhruv Narayan Mishra
 

 
Hon'ble Prakash Padia,J.

1. Pursuant to the order passed by this Court on 2.3.2021 both the petitioners namely Smt. Madhuri Shrivastav and Ms. Vaishnavi appeared in person before this Court. The respondent no.1/Praveen Kumar Shrivastav also appeared in person.

2. Mr. Dhruv Narayan Mishra, who was appointed Amicus Curiae by order of this Court dated 26.2.2020, is also present to assist the Court.

3. The petitioners have preferred present petition with the following prayers :-

"1. Issue an order of certiorari quashing entire proceedings of Case No.13/2013 (Praveen Kumar Srivastav Vs. Smt Madhuri Srivastav), U/s 28A of Hindu Marriage Act, read with Order XXIX Rule 2A of CPC, pending before the Additional Judge, Family Court, Allahabad, imposing heavy cost to the respondent No.1.

2. Issue another order or direction commanding the respondent No.1 to pay sum of Rs.2,83,600/- to petitioners with simple interest since January, 2015, within a stipulated period of time, in compliance of the judgment/decree dated 17.01.2015, passed by the Court below in Marriage Case No.291/2003.

3. Issue any other writ, order or direction which this Hon'ble Court may found deem fit and proper with the facts and circumstances of the case. So that justice be done.

4. To award cost to the petition from respondent No.1."

4. It is stated by petitioner no.1/Smt. Madhuri Shrivastav that she is a teacher in Jagat Taran Golden Jubilee School, Allahabad since 2006 and the petitioner no.2/Ms. Vaishnavi was pursing her B.A. II Examination from Allahabad University, Allahabad at the time when the present petition was filed. At present she is studying at B.A. III.

5. The date of birth of petitioner no.2 is 13.3.2000 and now she became major. It appears from perusal of the record that petitioner no.1 namely Smt. Madhuri Shrivastav, daughter of late Trilokinath Shrivastav along-with her daughter namely Ms. Vaishnavi filed the present petition inter-alia with the prayer to quash the entire proceeding of Case No.13 of 2013 under Section 28-A of the Hindu Marriage Act read with Order 39 Rule 2-A of the C.P.C. pending in the court of Additional Judge, Family Court, Allahabad. It appears from perusal of the record that the petitioner no.1/Madhuri Shrivastav got marriage with Praveen Kumar Shrivastav in the year 1998. After two years of marriage from their wedlock a daughter, petitioner no.2/Km. Vaishnavi, was born. Thereafter, family members of the respondent no.1 Praveen Kumar Shrivastav started harassing the petitioner no.1-Smt. Madhuri Shrivastav.

6. It further reveals from perusal of the record that the respondent no.1/Praveen Kumar Shrivastav preferred Case No.291 of 2003 (Praveen Kumar Shrivastav Vs. Smt. Madhuri Shrivastav), under Section 9 and 13 of the Hindu Marriage Act. Apart from the same, another case was filed by him being Marriage Case No.507 of 2004, under Section 26 of the Hindu Marriage Act before the court below. The Case No.291 of 2003, which was filed under Section 9 and 13 of the Hindu Marriage Act, was decreed partly while Case No.507 of 2004, which was filed under Section 26 of the Hindu Marriage Act was rejected vide judgment and decree dated 17.1.2015. Though Case No.507 of 2004 was finally decided on 17.1.2015 but during the pendency of the aforesaid case various interlocutory orders were passed from time to time. By the aforesaid orders directions were given to the respondent no.1 to meet with his minor daughter. Since the aforesaid orders were not complied with, an application was filed by the respondent no.1 in the court below under Order 39 Rule 2-A of the CPC which was numbered as Misc. Case No.13 of 2013. In the aforesaid case an application being Paper No.33-C dated 03.05.2019 was also filed by the respondent no.1 with the allegation that the petitioners are still flouting order dated 03.05.2005 and 03.06.2010.

7. It further appears from perusal of the record that the Family Court, Allahabad also directed the Station House Officer, Mutthiganj, District Prayagraj to permit the respondent no.1/Praveen Kumar Shrivastav to meet with his daughter namely Ms. Vaishnavi/petitioner no.2 on second Sunday of every month between 4.00 to 6.00 P.M.

8. In view of the aforesaid, petitioners have preferred present petition.

9. It is stated by the petitioner no.1 that in the proceedings initiated by the respondent no.1 by filing a suit being Suit No.291 of 2003, under Section 9 and 13 of the Hindu Marriage Act, 1995 an order was passed by the Additional Judge, Family Court, Allahabad on 17.1.2015. By the aforesaid order petition filed by the plaintiff/respondent no.1 for divorce was allowed. Further directions were given to the plaintiff/respondent no.1 in the petition to make payment of Rs.2,83,600/- to the petitioner no.1. Since the aforesaid order was not complied with a prayer has been made by the petitioner no.1 in the present petition for compliance of the aforesaid order.

10. Apart from a petition under Section 9 and 13 of the Hindu Marriage Act for divorce another petition was filed by the respondent no.1 being petition No.507 of 2004 in the Family Court, Allahabad under Section 26 of the Hindu Marriage Act. The said petition was also finally disposed of by the Additional Principal Judge, Family Court, Allahabad, vide order dated 17.1.2015. The aforesaid petition filed by the plaintiff/respondent no.1 was dismissed by the court below giving cogent reasons.

11. A specific query has been made by the Court from the respondent no.1 that whether the order dated 17.1.2015 passed in Case No.507 of 2004 filed under Section 26 of the Hindu Marriage Act was challenged by him before any other forum or not. It is stated by him that a fresh petition was filed under the same section i.e. under Section 26 of the Hindu Marriage Act.

12. It is argued by him that the aforesaid case was also dismissed by the Principal Judge, Family Court, Allahabad. The specific date has not been disclosed by him. In so far as the order dated 17.1.2015 passed in Matrimonial Case No.291 of 2003, which was filed under Section 9 and 13 of the Hindu Marriage Act, in which the decree of divorce was passed and directions were given to make the payment of Rs.2,83,600/- is concerned, it is stated that against the aforesaid order a review petition has been filed by the plaintiff/respondent no.1 in the court of Additional Principal Judge, Family Court, Allahabad being Review Petition No.8 of 2015, copy of the same is appended as annexure 8 to the present petition.

13. It is admitted by both the parties that aforesaid review petition is still pending and no final decision has been taken on the same.

14. The date of birth of the petitioner no.2 namely Ms. Vaishnavi is 13.3.2000 and now she has became major. It is stated by her that she is not willing to meet with her father. It is further stated by her that since she is major hence she is free to live according to her own wishes and nobody can compel her to meet with her father.

15. On the other hand it is argued by respondent no.1 that various orders were passed by the Family Court, Allahabad, from time to time by which the petitioner no.2 was permitted to meet with her father namely respondent no.1/Praveen Kumar Shrivastav but those orders were not complied with and as such contempt petition was also filed by him in the Family Court, Allahabad, which is still pending even today.

16. From perusal of the entire records it appears that two petitions are pending consideration before the court below namely Contempt Petition No.13 of 2013 as well as Review Petition No.8 of 2015.

17. The Supreme Court in a long line of decisions has settled the law that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living. Reference may be made to the judgements of the Supreme Court in the cases of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234; Lata Singh v. State of U.P. and another, (2006) 5 SCC 475; and, Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396, which have consistently been followed by the Supreme Court and this Court, as well as of this Court in Deepika and another v. State of U.P. and others, 2013 (9) ADJ 534. The Supreme Court in Gian Devi (supra) has held as under: -

"7. ... Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age.

As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter."

18. In view of the aforesaid, the Court is of the opinion that since the petitioner no.2 has now become major nobody can compel her including her father to stay with him or to meet with his father from time to time.

19. In so far as the relief as prayed by the petitioners in the present petition that the court below namely Principal Judge, Family Court, Allahabad be directed to decide the proceedings of Case No.13 of 2013 filed by the plaintiff/respondent no.1 is concerned, it is clear from perusal of the record that the main case has already been decided by the court below on 17.1.2015. The interim order passed to the effect that the respondent no.1 will be permitted to meet with his daughter namely petitioner no.2/Ms.Vaishnavi has not been complied with during the pendency of the aforesaid case. As stated above now the respondent no.1 has attained the age of majority and as such the aforesaid orders has now become without any substance.

20. Respondent no.1 placed reliance Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. It is argued that in case a boy or an unmarried girl-the father, and after him, the mother: provided the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

21. The statement of objects and reasons attained in the Act, 1956 reads as follows :-

"Statement of Objects and Reasons-This is another instalment of the Hindu Code and it deals with the law relating to minority and guardianship.

2. Under the Indian Majority Act, 1875, a person attains majority on his completing the age of 18 years but if before the completion of that age he has a guardian appointed by the Court, he attains majority on completing the age of 21 years. That Act applies to all persons including Hindus but an exception is made with respect to the capacity of any person to act in the matter of marriage, dower, divorce and adoption. Marriage and divorce have already been dealth with so far as Hindus are concerned and the definition of minor in the Bill will ensure that the age of majority is 18 for all practical purposes."

22. Section 6 of the aforesaid Act is reproduced hereinbelow :-

"6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;

(c) in the case of a married girl--the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.--In this section, the expression "father" and "mother" do not include a step-father and a step-mother."

23. From perusal of the same, it appears that the aforesaid act will apply only in respect of a minor. The age of majority has been given in the Act is 18 years.

24. It is clear from perusal of the same that petitioner no.2 has already attained the age of majority as such no benefit could be given to the respondent no.1 in so far as Section 6(a) of the Act, 1956 is concerned.

25. Apart from the same, it is clear from the record that the case filed, under Section 26 of the Hindu Marriage Act, by the respondent no.2 has already been decided finally on 17.1.2015. During the pendency of the aforesaid case certain interim orders were passed by which directions were given by the court below to permit the petitioner no.2 to meet with her father from time to time. Since the aforesaid orders were not complied with a misc. case was filed by the respondent no.2 being Case No.13 of 2013 in order to initiate the contempt proceedings. It is settled law that any interim order passed during the pendency of the case will merged with the final judgment.

26. In the case of National Bal Bhawan and another Vs. Union of India and others reported in (2003) 9 SCC 671, the Supreme Court held that :-

"4. It is no longer res integra that once a writ petition is finally disposed of by the High Court, any interim order passed in pending writ petition merges with the final order. If the respondents were aggrieved by the interim order in terms of which the writ petition was disposed of, it was incumbent upon the respondents either to have amended the memo of appeal by challenging the final order passed by the Single Judge of the High Court or ought to have preferred fresh letters patent appeal against the final order passed by the Single Judge."

27. In the case of State of West Bengal and others Vs. Banibrata Ghosh and others reported in (2009) 3 SCC 250 it was held by the Apex Court that :-

"The Interim Order doest not decide the fate of the parties to the litigation finally, it is always subject to and merges with the final order passed in the proceedings."

28. In the case of Prem Chandra Agarwal and another Vs. Uttar Pradesh Financial Corporation and others reported in (2009) 11 SCC 479 it was held by the Apex Court that :-

"Once a final order is passed, all the earlier interim orders merge into the final order, the interim orders cease to exist."

29. In view of the settled proposition of law though Misc. Case No.13 of 2013, which was filed by the respondent no.1, is still pending consideration before the court below but the Court is of the opinion that in view of the law laid down by the Supreme Court as stated above no useful purpose would be served to keep the aforesaid misc. case pending. In view of the same, Case No.13 of 2013 filed by the respondent no.1 is hereby dismissed. The court below is directed to pass appropriate orders in the aforesaid case most expeditiously and preferably within a period of two weeks from the date of presentation of certified copy of this order.

30. In so far as Review Petition No.8 of 2015 is concerned Principal Judge, Family Court, Allahabad is directed to decide the same most expeditiously and positively within a period of four months from the date of production of a certified copy of this order.

31. During course of arguments, it is stated by petitioner no.2/Ms. Vaishnavi that wholly illegally even after the petitioner no.2 attained the age of majority her father is trying to harass her from time to time by adopting all the modes including with the help of Police. Since petitioner no.2 has already attained the age of majority, all the district authorities are restrained to interfere with the peaceful living of the petitioner no.2 in any manner whatsoever. In the special facts and circumstances of the case, District Magistrate, Prayagraj and S.S.P., Prayagraj is directed to see that respondent no.1 or any other person will not harass her in any manner whatsoever. In case of any difficulty petitioners are free to approach the S.S.P., Prayagraj and in case any such complaint is made he is directed to look into the matter immediately.

32. Accordingly, present petition is disposed of.

Order Date :- 03.03.2021

Pramod Tripathi

Case :- MATTERS UNDER ARTICLE 227 No. - 6794 of 2019

Petitioner :- Madhuri Shrivastav And Another

Respondent :- Sri Praveen Kumar Shrivastav And 3 Others

Counsel for Petitioner :- V.R. Tiwari

Counsel for Respondent :- Praveen Kumar Srivastava ( In Person),Dhruv Narayan Mishra

Hon'ble Prakash Padia,J.

Vide order dated 26.02.2020 Mr. D. N. Mishra, learned counsel, was appointed Amicus Curiae in the case to assist the Court.

Vide order dated 12.10.2020 further direction was given by this Court to make payment of Rs.15,000/- to Mr. D. N. Mishra, Amicus Curiae, for assisting the Court within a period of two weeks.

When the matter was finally decided by me on 03.03.2021 the assistance was also given by Mr. D. N. Mishra, Amicus Curiae, to resolve the dispute.

In this view of the matter, office is directed to pay Rs.15,000/- in favour of Mr. D. N. Mishra, Amicus Curiae, within a period of three weeks from today.

Order Date :- 03.03.2021

Pramod Tripathi