Hemlata Sahu Vs Chetan Das Sahu

T.P. Sharma, J.@mdashBy this appeal under Section 19 of the Family Courts Act, 1984, the appellant has challenged legality and propriety of the order dated 24-10-2013 passed by the 1st Additional Principal Judge, Family Court, Raipur in Civil Suit No. 194-A/2013, whereby the trial Court has dismissed the application filed under Section 26 of the Hindu Marriage Act, 1955 (for short ''the Act''), for custody of children, on behalf of the appellant. As per the appeal and the order impugned, the respondent had filed Civil Suit No. 229-A/2012 for dissolution of marriage by a decree of divorce against the appellant. Subsequently, the respondent has filed an application for withdrawal of the petition filed under Section 13 of the Act for dissolution of marriage by a decree of divorce and vide order dated 16-8-2012 passed by the Principal Judge, Family Court, Raipur, the same has been dismissed as withdrawn. After dismissal of such petition as withdrawn, the appellant has filed an application under Section 26 of the Act for custody of her children Yukti and Kaustubh. After providing opportunity of hearing to the parties, the application for custody of children has been dismissed by the trial Court on the ground that after withdrawal of main petition for dissolution of marriage by a decree of divorce, nothing was pending before the trial Court, therefore, the petition under Section 26 of the Act was not maintainable.

2. We have heard learned counsel for the parties, perused the order impugned and order dated 16-8-2012 passed in Civil Suit No. 229-A/2012.

3. Learned counsel for the appellant submitted that in terms of Section 26 of the Act, the appellant is entitled for custody of children during the pendency of petition under the Hindu Marriage Act, 1955 or after the decree. Learned counsel further submitted that petition filed under Section 13 of the Act by the respondent has been withdrawn by the respondent which was final adjudication of dispute and the respondent is precluded from filing fresh petition on the same ground, therefore, the order of withdrawal amounts to decree and the petition filed under Section 26 of the Act was maintainable before the trial Court, but the trial Court has illegally dismissed the petition.

4. Learned counsel for the appellant placed reliance in the matter of Mt. Hasina Begum and Others Vs. Abdul Hafiz, in which a Division Bench of the Allahabad High Court has held that return of plaint for presentation to proper Court is a decree within the meaning of Section 3(14) of the Agra Tenancy Act (3 of 1926), on the ground that Section 3(14) of the said Act provides, disposal of suit on the preliminary ground is a decree. Learned counsel further placed reliance in the matter of Dharam Singh Vs. Thakur Tikam Singh in which the Allahabad High Court has held that order passed under Section 47 of the Agra Tenancy Act (3 of 1926) is not a decree under the said Act. Learned counsel also placed reliance in the matter of Madhavan Nair Vs. Ravindran Unni 1992 Law Suit (Kar) 155 in which the High Court of Karnataka has held that after passing decree under the provisions of the Hindu Marriage Act, 1955, application under Section 26 of the Act for custody of child is maintainable only before such Court. Learned counsel relied upon the matter of Malaya Das (Nee) Ghosh Vs. Basudeb Das 1996 Law Suit (Cal) 258 in which the Calcutta High Court has held that application under Section 26 of the Act is tenable in a proceeding before the Family Court under the provisions of the Hindu Marriage Act, 1955 and even after a decree. Learned counsel further relied upon the matter of Anita Sharma Vs. Rajendra Kumar 1997 (11) MPJR 111 in which the High Court of Madhya Pradesh has held that the Judge exercising jurisdiction under the Hindu Marriage Act is competent to pass order under Section 26 of the Act in any proceeding pending before it. Learned counsel also relied upon the matter of Mausami Moitra Ganguli Vs. Jayant Ganguli, in which the Supreme Court has held that welfare of minor is paramount consideration in a matter of custody of minor under the provisions of the Guardians and Wards Act, 1890. Learned counsel also placed reliance in the matter of Nil Ratan Kundu and Another Vs. Abhijit Kundu, in which the Supreme Court has held that welfare of minor is paramount consideration in a matter of custody of minor under the provisions of the Guardians and Wards Act, 1890 and Section 26 of the Hindu Marriage Act, 1955. Learned counsel also relied upon the matter of Dr. Ashish Ranjan Vs. Dr. Anupama Tandon and Another, in which the Supreme Court has held that welfare of child is paramount consideration in the matter of custody of minor under the provisions of the Guardians and Wards Act, 1890 and a party cannot be rendered remedy-less.

5. Learned counsel for the respondent vehemently opposed the appeal and submitted that any decree has not been passed by the trial Court under the provisions of the Act, no proceeding was pending before the Family Court at the time of filing application under Section 26 of the Act and in absence of pendency of proceeding or decree under the provisions of the Act, dependent application was not maintainable. Learned counsel further submitted that the appellant is not remedy-less, the trial Court has given liberty to the appellant to file proper petition under the provisions of Section 25 of the Guardians and Wards Act, 1890.

6. Learned counsel for the respondent placed reliance in the matter of Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, in which the Supreme Court has, held that while passing decree under the provisions of the Hindu Marriage Act, the Court is competent to pass order under Section 25 of the Act. Learned counsel further placed reliance in the matter of Arun Lata Vs. Civil Judge and Others, in which the Allahabad High Court has held that after withdrawal of proceeding by parties, application under Section 26 of the Act is not maintainable. Learned counsel also placed reliance in the matter of Kandapazha Nadar and Others Vs. Chitraganiammal and Others, in which the Supreme Court has held that withdrawal of suit under Order 23 Rule 1(4) of the Code of Civil Procedure, 1908, without liberty to file fresh suit, without any adjudication, does not constitute "decree".

7. The only question remains for consideration before us is whether petition under Section 26 of the Act is maintainable after withdrawal of petition filed under the provisions of the Hindu Marriage Act, 1955.

8. Section 26 of the Hindu Marriage Act, 1955, reads thus,--

"26. Custody of children.--In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent."

9. Petition under Section 26 of the Act can be filed during the pendency of proceeding under the Act or even after the decree. Undisputedly, on the date of filing of petition, any proceeding under the provisions of the Act was not pending before the Family Court. The Family Court has dismissed the petition for dissolution of marriage by a decree of divorce on the basis of application for withdrawal of petition by the respondent vide order dated 16.08.2012 passed in Civil Suit No. 229-A/2012 and thereafter, the petition in question was filed before the Court below.

10. As held by the Allahabad High Court in the matter of Mt. Hasina Begum (supra), return of plaint for presentation to proper court is a decree within the definition of Section 3(14) of the Agra Tenancy Act (3 of 1926) which makes the provision that disposal of proceeding is decree. Undisputedly, it was not a proceeding under the provisions of the Agra Tenancy Act (3 of 1926) which makes special provision relating to decree. Mt. Hasina Begums case (supra) is not applicable to the facts of the present case. Likewise, Dharam Singh''s case (supra) has also no application in the present case.

11. As held in the matters of Madhavan Nair, Malaya Das, Anita Sharma, Mausami Moitra, Nil Ratan and Ashish Ranjan (supra), relied upon by learned counsel for the appellant, petition under Section 26 of the Act is maintainable in a proceeding filed under the provisions of the Hindu Marriage Act, 1955 or after passing of decree, welfare of minor is paramount consideration in the petition for custody of child under the Guardians and Wards Act, 1890 and parties cannot be rendered remedy-less.

12. As held in the matters of Chand Dhawan and Arun Lata (supra), relied upon by learned counsel for the respondent, petition under Section 25 of the Act or Section 26 of the Act is only maintainable in a proceeding or after passing of the decree. As held by the Supreme Court in the matter of Kandapazha Nadar (supra), withdrawal of suit without any adjudication does not constitute decree.

13. In the present case, suit for dissolution of marriage by a decree of divorce filed by the respondent has been dismissed as withdrawn. On the date of filing petition under Section 26 of the Act, any proceeding under the provisions of the Act was not pending. Dismissal of case as withdrawn is not final adjudication of rights and obligations of the parties amounting to decree. Undisputedly, the Court has not passed any decree and the Court has not decided the rights and obligations of the party finally. The appellant is also not remedy-less, still she is at liberty to redress her grievance under the Guardians and Wards Act, 1890 or in the proceeding under the provisions of the Hindu Marriage Act, 1955, filed at her instance.

14. Consequently, we do not find any substance in the appeal, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. Parties shall bear the cost of appeal.

15. Advocate fees, if certified, as per schedule. Decree be drawn-up accordingly.