Andhra Pradesh High Court - Amravati

C Ns Kumar vs H B C Sekhar on 20 December, 2022

         THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

             Civil Revision Petition No.394 of 2021

ORDER:

This revision, under Section 115 CPC, against the order, dated

12.01.2020, passed in E.P.No.16 of 2017 in O.P.No.316 of 2016 on

the file of the Court of Principal Family Court-cum-IV Additional

District Judge, at Vijayawada.

2. Heard Sri Ponnada Sree Vyas, learned counsel appearing for

the revision petitioner/decree holder. There is no representation for

the respondents/judgment debtors.

3. The revision petitioner is the Decree Holder ('DHr') and the

respondents are the judgment debtors (JDrs). The DHr filed petition

in G.W.O.P.No.316 of 2016, under Section 25 of the Guardians and

Wards Act, 1890 ('Act of 1890', for short) before the Court of the

Principal District Judge, Medak, at Sangareddy, to direct the

respondents therein to handover custody of the minor child,

namely, C. Sri Mythreyi Hari Prathitha, to the petitioner as her sole

guardian. The petitioner was examined himself as PW1 and exhibits

A1 to A8 were marked on his behalf. Though notice was served on

respondents 1 to 3, they remained ex parte. Accordingly, the

petition was allowed ex parte on 15.02.2017. By the said order, the

petitioner was appointed as guardian of his minor daughter and the

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respondents were directed to hand over custody of the minor to the

petitioner.

(b) Thereafter, the DHr got transferred the decree to the Court of

IV Additional District Judge-cum-Principal Family Court, at

Vijayawada, for execution and filed E.P.No.16 of 2017 under Order

XXI Rule 32 CPC and Section 7 of the Family Courts Act, 1984 ('Act

of 1984' for short) to issue arrest warrant against the 3rd JDr to

punish her for violation of terms and conditions of decree and order,

dated 15.02.2017, passed in G.W.O.P.No.316 of 2016 and to

commit her to civil jail and for granting interim custody of the minor

child to him.

filed counter opposing the execution petition on the grounds stating

that the minor child is in custody of the 3rd JDr since the death of

the mother of the minor and that the mother of the minor died due

to the harassment by the DHr., and further that the minor is

comfortable in the custody of the JDr No.3 whereas the DHr has all

vices like drinking, gambling, womanizing etc., and is also going to

remarry. It is further stated in the counter that JDr No.3 filed a

petition to set aside the ex parte decree and the same is pending.

Thus, the JDr No.3 requested to dismiss the petition.

(d) Pending execution proceedings, the DHr filed E.A.No.33 of

2018 in E.P.No.16 of 2017 in O.P.No.316 of 2016 under Section 151

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CPC read with Section 7 of the Act of 1984 for granting interim

custody of the minor child to him. The 3rd respondent filed counter

contending that the minor is studying 1st class in K.K.R Gowtham

School, Vijayawada, and that she is looking after the welfare of the

minor including nutrition, health, education and other needs of the

child. On contest, the petition was allowed with the following

conditions:

(i) The respondent/JDr No.3 shall handover the custody of the child to the petitioner/DHr within one week, i.e., on or before 27.05.2019;

(ii) The petitioner/DHr shall keep the interim custody of the child till three days before reopening of the schools i.e., by 10.06.2019. The petitioner/DHr is responsible for the safety and well being of the child;

(iii) The petitioner/DHr shall allow the child to speak with the respondent/JDr No.3 on any day when the child wants to talk with her senior maternal aunt;

(iv) The child shall be permitted to speak with the respondent/JDr No.3 by using the speaker mode for ensuring that the respondent/JDr No.3 will not scare the child and will not tutor the child;

(v) The petitioner/D.Hr shall handover the custody of the child to the respondent/JDr No.3 three days prior to reopening of the schools pending conclusion of the enquiry in the E.P."

(e) According to the DHr, the said directions were also not

complied by the respondents/JDrs.

5. Finally, on 12.01.2020, the Court of Principal Family Court-

cum-IV Additional District Judge, Vijayawada, dismissed EP No.16 of

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2017 on the grounds that the order passed in G.W.O.P.No.316 of

2016 cannot be executed under Order XXI Rule 32 CPC, as the said

provision is applicable to decrees for specific performance of

contract or for restitution of conjugal rights or for an injunction but

not for order passed under the provisions of the Act of 1890 and

that there is a separate provision under the Act of 1890 Act for

enforcement of certain orders.

6. Having been aggrieved by the order dismissing the EP No.16

of 2017 as not maintainable, the DHr filed this revision petition

contending that the execution Court erred in concluding that Order

XXI Rule 32 CPC does not contemplate to send the JDr to civil jail

for violation of the order passed under the Act of 1890 to enforce

order for interim custody of the minor, and further holding that

there is a separate provision under the Act of 1890 for enforcement

of certain orders.

7. Learned counsel for the revision petitioner submitted that as

the execution petition was filed before a Family Court as per Section

7 of the Act of 1984, and the said Court has ample jurisdiction to

deal with the cases filed under the Act of 1890, and that therefore,

the execution petition ought not to have been dismissed just for

quoting of the wrong provision, if at all done. However, he further

contended that the provision under Order XXI Rule 32 CPC is also

applicable because the direction given by the Court is an injunctive

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relief directing the JDr to handover custody of the minor child to the

DHr and thus, such order is also covered by Order XXI Rule 32 CPC.

That part, learned counsel submitted that every order passed under

Section 25 of the Act of 1890 is enforceable under Section 45 of the

said Act by detaining the JDr in civil jail until he undertakes to

produce the minor or cause him to be produced etc, in addition to

liability for penalty of fine, and therefore, the Family Court ought to

have treated the petition as one filed under Section 45 of the Act of

1890 instead of throwing out the petition as not maintainable since

normally, it is for the Court to enforce the decree by civil Court

having jurisdiction under the Act of 1890.

8. Learned counsel for the petitioner also placed reliance on the

following decisions:

(i) In Aruna Kumari v. Dr.Ambrish Kumar Sengar 1, after

referring various decisions, it was held at para No.25 as follows:

"25. It may further be mentioned that Section 10 of the Family Courts Act, 1984 provides that subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings, other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Therefore, under Section 10 of the Family

2006 (2) MPLJ 104 [First Appeal No.88 of 2005 decided on 15.02.2006 (Gwalior)]

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Courts Act, said application was maintainable and the Family Court was bound to decide the application in accordance with law."

(ii) In Jasvir Kaur v. Parminder Singh2, it was held as follows:

"The functions of a Court, especially the Guardian Judge, does not cease to exist after passing an order but the objective of the Guardians and Wards Act, 1890 is to ensure the welfare of the minor child and to further supervise and regulate the conduct of the guardian and for enforcement of the order passed by the Guardian Judge."

9. For better appreciation, the provisions of Section 25, 45(1) of

the Act of 1890, Order XXI Rule 32 CPC and relevant portion of

Section 7 of the Act of 1984 are excerpted herein below:

25 of the Act of 1890:

"25. Title of guardian to custody of ward:- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the First Class by Section 100 of the Criminal Procedure, 1882. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

FAQ-1899-2018 Punjab & Haryana High Court

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45(1) of the Act of 1890:

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) if a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause

(b) of Section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause

(c) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section; or

(c) if a person who has ceased to be a guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under Section 41, sub- section (3), 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.

Section 7(1)(g) of the 1984 Act:

7. Jurisdiction--(1) Subject to the other provisions of this Act, a Family Court shall----

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(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation, and

(b) deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.--The suits and proceedings referred to this sub- section are suits and proceedings of the following nature, namely,

(a) xx xx xx

(b) xx xx xx

(d) xx xx xx

(e) xx xx xx

(f) xx xx xx

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor."

Order XXI Rule 32 CPC:

32. Decree for specific performance of restitution of conjugal rights, or for an injunction.--(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

   (2)     xx xx

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      (3)      xx xx
      (4)      xx xx
      (5)      xx xx"

10. Thus, either under Section 45(1) of the Act of 1890 or under

Order XXI Rule 32 CPC, the remedy available to the DHr is to detain

the JDr in civil jail for enforcement of the decree, and both the said

provisions are similar in nature. It is settled law that mere quoting

of wrong provision of law is not a ground to refuse remedy, if

otherwise the party is entitled to the relief based on the pleadings

and evidence. Therefore, the execution Court ought to have applied

appropriate provision of law for enforcement of the decree sought

for execution instead of dismissing the petition merely on the

ground indicated by it. Therefore, the impugned order is liable to

be set aside.

11. In the result, the Civil Revision Petition is allowed and the