DATE OF JUDGMENTS :
17th March 2021
JUDGES:
A.M. Khanwilkar, Dinesh Maheshwari, Krishna Murari
PARTIES:
Aman Lohia (plaintiff)
Kiran Lohia (defendant)
Subject
In the present judgement the court has to decide upon the custodial guardianship rights to be assigned to either parent while also imposing a decision over if the natural justice of the appellant were adhered to in the family court.
AN OVERVIEW
The appellant filed in this case for the custody of the daughter under u/s 7(g) of guardianship and wards act for being declared as the legal guardian of the baby girl.
However, the respondent did not respond to any of the legal notices as a result there were two applications for seeking condonation of delay were re- filed
The respondent then filed an application u/s 151 CPC for the sole guardianship of the child and no notice regarding this was sent to the appellant. There is no record of the family court that dealt with and imposed of this application before the impugned order came.
The respondent allegedly stated that the appellant was unworthy to look after the minor
In this order the court stated that the appellant withdrawn from or abandoned the case despite knowing about the pending petitions for guardianship, further handling the sole guardianship of the minor to the mother (respondent)
Aggrieved by the decision of the family court the appellant has filed in his present petition that the family court passed orders while completely disregarding the mandatory procedure violating his natural justices.
IMPORTANT PROVISIONS
Family court act of 1984
- Section 7 (1)
- Section 10
Guardianship and wards act
• Sec 7 the power of the court to appoint guardianship
Civil procedure code
• Section 151 - Nothing in this code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.
ISSUES
- Was the natural justice tamped by the law for the appellant
- . Did the family court abide by its jurisdiction and followed the proceeding
Judgment analysis
When the marriage is falling apart it’s the child that bares the most traumatic experience as a result it is upon the parents to find means to co parent that child however when they fail to do so the law as to be involved.
In this case the child did suffer tremendous trauma as both parents have allegedly been accused of attempting to kidnap their own child to gain the custody.
The appellant tried to fly to UAE with his child in violation of court orders that triggered an Interpol search for the baby on a CBI request that a Yellow Notice for baby Raina was issued.
The External Affairs Ministry did issue a note on September 9 to authorities in the UAE to not let Aman Lohia leave the country.
While one may view this differently as this man attempted to escape the country not just out of love and care for the child but due to clear vengeance and hateful feelings towards his wife and to make her suffer instead of prioritizing the child’s health and wellbeing first
This is a well-educated and a business class family that owns business across going through tough times over their separation and child custody
The appellant, points out that the father is a natural guardian. Irrespective of the mother’s custody, the guardianship of the father cannot be divested in law unless it’s proven that the father is unfit to parent a child
As that may be the case in cases of female child especially toddler the court prefers the child to live with its mother as she can nurture the child to its fullest requirements.
Baby Raina is just 2.5 years old and is therefore incapable to make her own choice and decision for the future, therefore it’s up to the law of the land to ensure she lives with the parent that is truly fit for the role
While the family tried their case in family court, justice was not severed right as the appellant was not informed about the proceedings and the custody was handed to the mother, this did raise the issue of natural justice and therefore the appellant further appellant to the apex court of land
The Supreme Court did notice that the family court had exceeded its jurisdiction in the matter as it does not have powers to do away mandatory proceedings which makes sure there is transparency and fairness in the judgment while both the parties are being heard before the law
The family court did not duty ensure that the appellant was being served abut the proceeding held in his absence
Thus, the court held that if the appellant wants to purse the guardianship petition u/s 151 by the respondent is dismissed
CONCLUSION
Custody cases are difficult especially for a minor as it has no control over the situation and may feel trap in some cases. Its advice usually to look at the best interest of the child before making a decision
In this case the family court handled the case very poorly not leaving much scoop for a fair trial and having a prenotion mindset regarding the matter before all the facts were presented before the court.
Therefore, the supreme court rightly dismissed the respondent appeal
