Karnataka High Court

Jai Prakash Narian vs Smt Madhavi on 13 January, 2022

Bench: Pradeep Singh Yerur

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2022

                          BEFORE

   THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR

 CIVIL REVISION PETITION NO.302 OF 2021 (GM - CPC)

BETWEEN:

JAI PRAKASH NARIAN,
S/O LATE R N PRASAD,
AGED ABOUT 58 YEARS,
R/AT NO.100, 5TH CROSS,
GRUHALAXMI LAYOUT,
BENGALURU - 560 079.
                                           ... PETITIONER
(BY SRI.PRASANNA KUMAR P., ADVOCATE)

AND:

SMT. MADHAVI,
W/O JAI PRAKASH NARAIN,
AGED ABOUT 49 YEARS,
R/AT NO.4, 2ND MAIN ROAD,
GANAGANAGAR EXTENSION,
BENGALURU - 560 032.
                                          ... RESPONDENT
(BY SRI.ASHOK B PATIL, ADVOCATE)

       THIS CIVIL REVISION PETITION IS FILED AGAINST THE
JUDGMENT PASSED BY III ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, BENGALURU IN EXECUTION NO.182/2015
DATED 15.04.2019 AS THE ORDER WAS PASSED BY FAMILY
COURT AND I.A.FILED UNDER SECTION 47 OF CPC.
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      THIS   CIVIL   REVISION     PETITION   COMING   ON   FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:


                             ORDER

The petition though listed for Orders, is taken up for

its Final Disposal with the consent of learned counsel

appearing for the parties.

2. The present petition is preferred by the father

of the minor child, who was the judgment debtor before

the Executing Court in Execution case No.182/2015. The

Executing Court partly allowed the execution petition filed

by the respondent-wife and directed that the petitioner to

undergo simple imprisonment for a period of 30 days.

Aggrieved by the same, the petitioner herein, who was the

judgment debtor, the father of the minor child, has

preferred a writ petition before this Court in Writ Petition

No.19343/2019. While the writ petition came up for

Preliminary Hearing, an objection came to be raised by the

learned counsel appearing for the respondent namely,

Sri. Ashok B. Patil, wherein, he stoutly objected with

regard to the maintainability of the writ petition itself, on

the ground that the execution petition has finally been

closed and ended in a final order.

3. At this stage, the learned counsel appearing

for the petitioner - Sri. Prasanna Kumar P., sought leave of

this Court to convert the said writ petition into the present

civil revision petition and has filed a memo to that effect.

Based on the memo, this Court granted leave and

permitted the learned counsel appearing for the petitioner

to convert the writ petition into the present civil revision

petition and accordingly, the writ petition came to be

converted into the civil revision petition.

4. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are that:

The petitioner and the respondent are none other

than husband and wife. Their marriage having been

solemnized on 24.02.1989. From their wedlock, three

daughters were born. It is submitted that on 06.06.2007,

the respondent-wife deserted the company of the

petitioner - husband and her three daughters.

5. It is also submitted by the learned counsel

appearing for the petitioner that on 07.03.2012, the

respondent - wife for the first time returned and forcibly

took the third daughter by name Deepansha Narain and

also the second daughter along with her. Due to which, a

complaint came to be registered by the petitioner -

husband on 10.03.2012, at Basaveshwaranagara Police

Station. While the police secured the parties on the basis

of the complaint, the second daughter came with the

petitioner and decided to join the petitioner and the first

and third daughters went along with the respondent -

mother. In view of the dispute between the petitioner and

the respondent, the petitioner-husband filed a petition for

custody and guardianship of the minor child on

23.05.2012, before the Family Court at Bengaluru. After

hearing the parties, the Family Court allowed the petition

on 28.04.2014, filed by the petitioner-husband and

directed the respondent-wife to handover the custody of

the minor child namely, Ms. Deepansha Narain to the

petitioner.

6. Aggrieved by the order of the Family Court,

Bengaluru, the respondent - wife challenged the same by

filing Miscellaneous First Appeal in M.F.A.No.3506/2014,

before this Court. The Division Bench of this Court refused

to admit the appeal and grant any relief in favour of the

respondent - wife. It is the contention of the learned

counsel for the petitioner - husband that in view of the

intervention of the senior counsel for the petitioner -

husband, a joint memo came to be filed by the parties.

On considering the joint memo filed, this Court disposed of

Miscellaneous First Appeal No.3506/2014 on 05.06.2014,

by modifying the order of the Family Court dated

28.04.2014, by granting visitation rights on the last

Sunday of every month from 10.00 a.m. to 4.00 p.m., to

the decree holder - wife, respondent herein.

7. In compliance of the judgment of the Division

Bench of this Court rendered in M.F.A.No.3506/2014, the

petitioner-husband dropped the minor child to the

respondent - wife. The petitioner - husband later on,

changed the school of the minor child by obtaining transfer

certificate without informing the respondent - wife. This

being the state of affairs, due to the violation and

disobedience of the judgment passed by the Hon'ble

Division Bench of this Court, the respondent - wife

preferred a contempt petition, wherein the contempt Court

relegated the parties to file an execution petition and

accordingly, the execution petition came to be filed by the

respondent - wife in Execution Case No.182/2015.

8. In the proceedings before the Executing Court,

the petitioner - husband filed an application under Section

47 of the Code of Civil Procedure, objecting to the

execution of the decree. After considering the application

and the submissions of the parties, the Executing Court

partly allowed the execution petition and passed the

impugned order, which is under challenge before this

Court. The execution petition culminated into a final order

being partly allowed in favour of the respondent-wife, who

is the decree holder.

9. It is the vehement contention of the learned

counsel appearing for the petitioner - husband that the

executing Court has exceeded its jurisdiction in ordering

the petitioner to be detained in civil prison. It is further

contended that the order passed by the executing Court is

erroneous and arbitrary, which has lead to miscarriage of

justice and accordingly, he is before this Court challenging

the impugned order passed by the executing Court. It is

also his submission that the executing Court has not

considered the contentions raised by the learned counsel

appearing for the petitioner - husband and has passed an

erroneous order, which has caused miscarriage of justice

to the petitioner and accordingly, he has filed the present

civil revision petition.

10. Per contra, the learned counsel appearing on

behalf of the respondent - wife contends that on the basis

of the joint memo filed by the parties before the Division

Bench in M.F.A.No.3506/2014, it is construed that the

parties have agreed to certain terms and conditions, which

is violated by the petitioner-husband, due to which, the

respondent-wife was forced to file the contempt petition,

which was later relegated to the executing Court wherein,

the same has culminated into a final order by partly-

allowing in favour of the respondent-wife and the

petitioner - husband was ordered to be detained in civil

prison for a period of 30 days.

11. Learned counsel appearing for the respondent,

Sri. Ashok B. Patil, contends that despite undertaking

given in the joint memo by the parties before the Division

Bench, the petitioner - husband has deliberately violated

the conditions and disobeyed the judgment of the Division

Bench of this Court. Therefore, no leniency can be shown

to such persons, who do not have any respect for the

orders/judgments passed by this Court. Accordingly, on

these submissions, he seeks that the petition be

dismissed.

12. Learned counsel appearing for the

respondent - wife further vehemently contends that the

present petition would not be maintainable in view of the

bar under Section 19 of the Family Courts Act, 1984

(hereinafter referred to as 'the said Act' for short).

13. Section 19 of the Family Courts Act, 1984, is

hereby extracted for the purpose of ready reference:

"19. Appeal.-(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2).............

(3).............

(4).............

(5)............

            (6) An      appeal      preferred    under sub-
      section   (1)   shall    be     heard     by   a   Bench
      consisting of two or more judges."

On a perusal of the above provision, it is clear that

an appeal shall lie from every judgment or order, not being

an interlocutory order, of a Family Court to the High Court,

both on facts and on law and the said appeal would have

to be heard before the Bench of this Court consisting of

two or more Judges.

14. This proposition of law is not disputed by the

learned counsel appearing for the petitioner - husband. In

view of the bar contained in Section 19 of the said Act, for

any other petition to be filed other than an appeal, the

present petition, in my opinion, would not be maintainable.

15. Learned counsel appearing for the petitioner is

also in agreement with the said proposition of law and he

seeks some indulgence of this Court to protect the interest

of the petitioner - husband till the time he files an appeal

before the appropriate Court.

16. Learned counsel appearing for the petitioner

also submits that before the writ petition, a concession was

granted to petitioner that he shall not be arrested in

pursuance of the orders passed by the executing Court and

on perusal of the order passed by this Court in writ petition

No.19344/2019, I do not find any such concession granted

or any such order passed by this Court in the writ petition,

wherein the petitioner - husband was directed not to be

arrested in pursuance of the order of the executing Court

and I have perused the same and found that there is no

such order passed in the present revision petition also.

17. However, the learned counsel appearing for

the petitioner at this stage, brings to the notice of this

Court an order dated 26.04.2019, passed by this Court in

Writ Petition No.19344/2019, wherein, an interim order of

stay of the judgment dated 05.06.2014 passed in

M.F.A.No.3506/2014, was granted till the next date of

hearing. However, the interim order culminated into a

final order dated 22.07.2021, where no such stay or

interim protection was granted to the petitioner - husband,

while passing the order of conversion of writ petition into

civil revision petition.

18. However, the learned counsel appearing for

the parties would submit that during the pendency of these

proceedings, the minor child has now attained majority. In

view of the present situation, the minor child having

attained majority, the entire issue now takes a total 'U'

turn as the daughter namely, Ms.Deepansha Narain, has

attained majority and she is now an adult, who is capable

of deciding with whom she wants to stay. In the fight

between the petitioner and respondent, the daughter has

been dragged in and unfortunately, in view of her attaining

majority, Ms.Deepansha Narain would be in a better

position to decide with whom she wants to stay in her best

interest.

19. This being the state of affairs, the learned

counsel appearing for the petitioner submits that sometime

may be granted to him to file an appeal challenging the

order passed by the executing Court as the present

petition would not be maintainable.

20. He further seeks for an indulgence in the

matter with regard to an interim protection to the

petitioner - husband with regard to the order of the

executing Court directing the petitioner - husband to be

detained in civil prison.

21. On such submission of the learned counsel

appearing for the petitioner - husband, Sri. Ashok B. Patil,

learned counsel for the respondent - husband vehemently

opposes the grant such an order of protection to such

cantankerous petitioner - husband, who has deliberately

violated the judgment of the Division Bench of this Court.

22. Later, he concedes and fairly submits that he

would not precipitate the matter for a period of three

weeks, as sought for by the learned counsel appearing for

the petitioner, to provide an opportunity to the petitioner

to prefer an appeal challenging the order passed by the

executing Court. Considering the gamut of the matter and

the dispute between the husband and the wife and the

daughter being involved, I feel some protection requires to

be granted.

23. In view of such fair submission made by the

learned counsel appearing for the respondent, I deem it

appropriate to grant three weeks time to the petitioner to

prefer an appeal against the impugned order of the

executing Court. I also deem it appropriate to grant an

interim protection to the petitioner - husband that the

order passed for detaining him in civil prison shall be

stayed for a period of three weeks from today and it is

needless to mention that, if the petitioner does not file any

appeal within a period of three weeks from today, the

order of stay, which is granted herein, shall automatically

stand vacated.

24. It is for the petitioner to file an appeal or

appropriate proceedings within a period of three weeks

from today and secure necessary orders, thereafter.

25. Placing the submissions of the learned counsel

appearing for both parties on record, I deem it appropriate

to dispose of this Civil revision petition. Accordingly, I

pass the following:

ORDER

i. Civil Revision Petition is dismissed. ii. The petitioner - husband is granted liberty to file an appeal before the appropriate forum under the appropriate provisions of law. iii. There shall be a stay of the order of the executing Court passed in Execution Case No.182/2015 with regard to the detention of the petitioner in civil prison, for a period of three weeks from today.

iv. It is needless to mention that this Court has not expressed any opinion with regard to the status and the violation or non-violation of the judgment passed by the Division Bench of this Court and with regard to the rights of the parties.