Jharkhand High Court
Jyoti Tiwary vs Subhash Kumar Singh S/O Late Jagnarayan ... on 20 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.533 of 2024
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Jyoti Tiwary, D/o Shri S.N. Tiwary aged about 40 years R/o C 3/3 Mangala Apartment IP Extension P/o Patparganj P.S Madhu Vihar, District-East Delhi, State-Delhi .... .... Petitioner Versus Subhash Kumar Singh S/o Late Jagnarayan Singh R/o Flat No.31 Urmila Niwas Mansarowar Colony Hatia Tupudana P.O. Tupudana P.S Tupudana, District Ranchi-834003, Jharkhand.
.... .... Respondent
CORAM : HON'BLE THE ACTING CHIEF JUSTICE
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For the Petitioner : In Person
Mr. Soumitra Baroi, Advocate
For the Respondent : In Person
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CAV on 23.08.2024 Pronounced on 20/09/2024
Prayer
1. This petition under Article 227 of the Constitution of India is directed against the order dated 10.04.2024 passed by the Addl. Principal Judge, Addl. Family Court-II, Ranchi, by which, the petition filed by the respondent, (petitioner herein) under Order 7 Rule 11 of the CPC and Section 9 of Guardians and Wards Act, has been rejected.
Facts
2. The brief facts of the case, as per the pleading made in the petition, required to be enumerated, which reads as under:-
3. It is the case that the marriage between the petitioner wife and 1 CMP No.533/2024 the respondent husband was solemnized according to the Hindu Rites and Ceremonies on 10.11.2006 at Delhi. Out of this wedlock, one male child namely Aayan Pratap Singh was born on 16.07.2009. After marriage, they lived together almost for ten years. The petitioner was subjected to cruelty physically/mentally and thereafter in February, 2017 by playing deceit, shifted with the petitioner wife along with the minor son in a rented accommodation in East Delhi and admitted the minor son in a School. Thereafter, after sending the petitioner out for an interview, the respondent with the help of his sister and brothers took the minor son with all jewellery, valuable items including educational certificate.
4. The petitioner wife, upon this, filed complaint case before the Police and before the CAW Cell including W.P. (Crl.) No.2747 of 2017 before the Delhi Court to bring back the minor son.
5. It is the further case that the Original Suit seeking custody of the minor child was filed by the respondent husband with the suppression of material facts about the place of marriage of the parties, place of ordinary residence of the petitioner and minor child, the place of education of minor child and pending matrimonial dispute at Delhi since 2017.
6. It appears from the suit being Original Suit No.539 of 2023 that the respondent husband has not approached the Ld. Family Court at Ranchi with clean hands and the aforesaid Original Suit was another attempt made by him to get the custody of the minor child from the 2 CMP No.533/2024 legal custody of the petitioner wife.
7. It is evident from the factual aspect as per the pleading made in the petition that the respondent husband has preferred a suit being Original Suit (Guardianship) No.539 of 2023 for seeking custody of the minor child.
8. The petitioner has filed a petition under Order 7 Rule 11 of the CPC raising the issue of maintainability of the suit before the Family Court at Ranchi.
9. The ground has been taken that although, the custody of the minor has been handed over by the order passed by the Delhi High Court in the writ of habeas corpus and further, the Delhi High Court has passed an order by directing the respondent/husband to bear all the expenses towards the education of the child besides giving Rs.10,000/- per month for other expenses of the child which includes the food and clothing for the child.
10. The husband has preferred Original Suit being Original Suit (Guardianship) No.539 of 2023, wherein, it has been alleged that the petitioner is a careless mother and does not look after the proper upbringing of the child.
11. The said petition has been objected by the petitioner wife by filing a petition under Order 7 Rule 11 of the CPC on the ground that the jurisdiction to seek such direction of custody lies with the Court having in the Delhi in view of the fact that the minor resides at Delhi in Shahadra.
3 CMP No.533/2024
12. The learned Court has considered the petition filed under Order 7 Rule 11 CPC but has dismissed the same on the ground that the issues raised by the respondent, petitioner herein, are the mixed question of law and facts and the said issue will only be decided after adducing the evidence of the parties, which is the subject matter of the present petition.
Arguments of the petitioner
13. The petitioner has argued in-person and has submitted by referring to the document as appended at Page-111 to the paper book. The said document is admitted one, since, it is an order passed by the learned Judge, Family Court, East District, Karkadooma Court, Delhi where an application was filed being G.P. No.45/2021 for seeking custody of the minor which was objected seeking prayer for rejection of the plaint by filing application under Order 7 Rule 11 read with Section 151 of the CPC.
14. The respondent husband has admitted by confirming that the residence of the respondent no.2 fall within the jurisdiction of Shahadra District.
15. Petition filed for seeking custody of the minor, in consequence of such submission, was dismissed as withdrawn with a liberty to file afresh petition on the same ground in the appropriate court having jurisdiction.
16. The petitioner wife, therefore, has submitted that the aforesaid document has not been placed by the respondent husband. 4 CMP No.533/2024
17. It has been submitted that the aforesaid order has also been brought to the notice of the learned Addl. Principal Judge, Addl. Family Court-II, Ranchi but even thereafter, petition filed under Order 7 Rule 11 has been dismissed on the ground that the issue of jurisdiction is required to be decided by conducting inquiry since the same is mixed question of law and facts.
18. It has been contended that when the submission furnished by the respondent husband has already been brought to the notice of the learned Family Court then where is the occasion for the learned Court to come with the conclusion that it is the mixed question of law and fact which can be decided only after adducing the evidence. It has further been contended that when the factual aspect if found to be in dispute, then, such exercise is required, otherwise, when the fact is in admission then no purpose will be served by adducing an evidence.
19. The party-in-person, in view of the aforesaid, as also by emphasizing the admission made by the respondent husband that the minor is residing in Shahadra, based upon that ground, the petition filed for seeking custody has already been withdrawn with a liberty to file appropriate application before the Court having its jurisdiction but ignoring the said submission as also the liberty to seek the same relief by approaching the court having its jurisdiction said to be in consonance with the provision of Section 9(1) of the Guardians and Wards Act, 1890, therefore, suffers from an error and 5 CMP No.533/2024 hence, the same is fit to be quashed and set aside. Arguments of the Respondent
20. It has been contended that the ancestral home of the petitioner is in Mandar, Jharkhand and now her father live with his family in their house situated on Itki Road, Hehal, Ranchi, therefore, the Family Court Ranchi is well within the Jurisdiction to decide the issue of the custody of child and the guardianship of the child.
21. It has further been contended that all the cases filed by the petitioner in Delhi, was on the basis of false documents. Even though, the marriage between them took place in Delhi Arya Samaj but again, the marriage took place in Ranchi. However, the petitioner has misled all the Courts of Delhi by giving only the proof of Arya Samaj Marriage.
22. Therefore, party-in-person has submitted on the basis of the aforesaid grounds that the petition filed by the petitioner is liable to be dismissed.
Analysis
23. This Court has heard the learned counsel for the parties and gone across the finding recorded by the learned Addl. Principal Judge, Addl. Family Court-II Ranchi in the order impugned.
24. The objection has been filed by raising the issue that such petition for seeking custody of the minor is not maintainable within Ranchi Judgeship in view of the provision as contained under Section 9(1) of the Guardians and Wards Act, 1890. 6 CMP No.533/2024
25. While on the other hand, respondent husband has taken the plea by relying upon the provision as contained under Section 9(2) of the Act, 1890, wherein, the requirement to maintain the petition for custody of the minor is the availability of the property in the concerned Judgeship.
26. This Court has appreciated the rival submissions advanced on behalf of the parties.
27. The learned Addl. Principal Judge, Addl. Family Court-II has passed an order while dismissing the petition filed under Order 7 Rule 11 of the CPC, wherein, the reference of Section 9 of the Act, 1890 has been made and the consideration of the aforesaid provision has been made in either of the two conditions, i.e., the residence of the minor or if the property is in the concerned Judgeship, such petition can be maintained.
28. This Court, therefore, deems it fit and proper to refer the provision as contained under Section 9 of the Guardians and Wards Act, 1890, for ready reference, Section 9 of the Act, is being referred as under:-
"9. Court having jurisdiction to entertain application.- (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.7 CMP No.533/2024
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction."
29. The aforesaid provision comprises of three sub-sections. Sub- section (1) thereof provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
30. Sub-section (2) provides that if the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.
31. Sub-section (3) provides that if an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
32. It is, thus, evident that Section 9 speaks with respect to the guardianship of the person of the minor and the condition to maintain such petition in the place where the minor ordinarily resides.
33. Sub-section (2) provides that if the application is with respect to 8 CMP No.533/2024 the guardianship of the property of the minor, such petition can be entertained to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property, meaning thereby, guardianship with respect to the property of the minor, the concurrent jurisdiction of the District Court has been given, such litigation can be filed in either to the District court having jurisdiction in the place where the minor ordinarily resides or a District court having jurisdiction where he has property. But, in any stretch of imagination so far as the issued of guardianship of person of minor is concerned, sub-section (2) of Section 9 is having no nexus, rather, sub-section 2 deals with the guardianship of the property of the minor.
34. Sub-section (3) further clarifies which has got bearing in the present facts and circumstances of the case that if an application with respect to the guardianship of the property of a minor is made to the District Court other than having jurisdiction in the place where the minor resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
35. The Hon'ble Apex Court in the Ruchi Majoo Vrs. Sanjeev Majoo, reported in (2011) 6 SCC 479 has defined the expression of 'ordinary residence of the minor'. The expression used is "where the minor ordinarily resides" at a given place is primarily a question of intention which in turn is a question of fact.
9 CMP No.533/2024
36. It would further be evident as has been observed at paragraph- 25 that the factual aspects relevant to the question of jurisdiction if not admitted, rather, the same is in serious dispute, then, the inquiry is required.
37. The Hon'ble Apex Court in the said judgment at paragraph-26 has interpreted the true purpose of expression "ordinarily resident"
appearing in Section 9(1). For ready reference, paragraph nos.24, 25, 26 & 30 of the aforesaid judgment are being referred as under:-
"24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the "ordinary residence" of the minor. The expression used is "where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.
25. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer.
26. We may before doing so examine the true purpose of the expression "ordinarily resident" appearing in Section 9(1). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word "ordinary" has been defined by Black's Law Dictionary as follows: "Ordinary (adj.).--Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterised by peculiar or 10 CMP No.533/2024 unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."
The word "reside" has been explained similarly as under:
"Reside.--Live, dwell, abide, sojourn, stay, remain, lodge. (Western-Knapp Engg. Co. v. Gilbank [129 F 2d 135 (CCA 9th Cir 1942)] , F 2d at p. 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right.
(Bowden v. Jensen [359 SW 2d 343 (Mo Banc 1962)] , SW 2d at p. 349.)"
30. In Kuldip Nayar v. Union of India [(2006) 7 SCC 1] the expression "ordinary residence" as used in the Representation of the People Act, 1950 fell for interpretation. This Court observed: (SCC p. 96, paras 243-46) "243. Lexicon refers to Cicutti v. Suffolk County Council [(1981) 1 WLR 558 : (1980) 3 All ER 689 (DC)] to denote that the word 'ordinarily' is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found 'ordinarily', in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is 'ordinary' and general, rather than merely for some special or limited purpose.
244. The words 'ordinarily' and 'resident' have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person 11 CMP No.533/2024 seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when qualified by the word 'ordinarily' the word 'resident' would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis.
Thus understood, even the requirement of a person being 'ordinarily resident' at a particular place is incapable of ensuring nexus between him and the place in question."
38. The factual aspect of the aforesaid case as would be evident from the reference made therein that the case of the appellant was that although the couple and their son had initially planned to return to USA, that decision taken with the mutual consent of the parties was changed to allow the appellant to stay back in India and to explore career options here. The minor, according to that decision of his parents, to stay back and be admitted to a school in Delhi. The decision on both counts, was free from any duress whatsoever, and had the effect of shifting the "ordinary residence" of the appellant and her son Kush from the place they were living in America to Delhi. Further, the respondent father of the minor, had upon his return to America sent e-mails, reiterating the decision and offering his full support to the appellant.
39. While the case of the respondent husband was that he was coerced to put in writing a tentative arrangement on the ground of the appellant trying career options in dental medicine at Delhi and minor allowed to stay at Delhi for the year 2008.
12 CMP No.533/2024
40. A letter which was written, according to the respondent husband was obtained under deceit, pressure, threat and coercion.
41. The Hon'ble Apex Court in the aforesaid pretext has come to the conclusion based upon the pleading of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, therefore, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given an opportunity to adduce evidence in support of their respective versions.
42. It is, thus, evident that the version of the mother and the father has been considered to be in serious dispute.
43. Adverting to the factual aspect of the present case, the petition being G.P. No.45/2021 filed for custody of the minor initially was at Karkardooma Court at Delhi.
44. The petitioner, wife has filed petition under Order 7 Rule 11. It was scrutinized and the respondent husband herein had been called upon, wherein, it was submitted by admitting the fact that the minor is residing at Shahadra, Delhi.
45. The respondent husband has accepted the issue of ordinary residence of the minor to be at Shahadra, Delhi and based upon that admission, he has withdrawn the said petition filed for custody of the 13 CMP No.533/2024 minor with a liberty to file a petition before the Court having its jurisdiction, for ready reference, the content of the said order is being referred as under:-
"An application under Order 7 Rule 11 R/W Section 151 CPC is on the record Reply to the application filed. Copy supplied. I have called Sh. Yogesh Kumar, J.A. on the filing centre and he confirms that residence of the respondent no.2 falls within the jurisdiction of Shahdara District. At this stage, it is submitted by Ld. Counsel for petitioner that petitioner wants to withdraw the present petition with liberty to file afresh petition on the same ground in the appropriate court having jurisdiction. Statement of petitioner has been recorded separately in this regard.
In view of statement of petitioner, the present petition is dismissed as withdrawn with liberty to file afresh petition on the same ground in the appropriate court having jurisdiction. File be consigned to record room. Copy of order be given dasti as prayed."
46. But, the respondent husband instead of filing the petition before the concerned Court Shahdara at Delhi, petition has been filed under the Ranchi Judgeship being O.M. No.539 of 2023.
47. The petition has been filed by the respondent wife (the petitioner herein) under Order 7 Rule 11 of the CPC for rejection of the said Original Suit on the ground of lack of jurisdiction to the concerned Family Court.
48. The ground has been taken by making reference of the provision of Section 9(1) of the Guardians and Wards Act, 1890.
49. The learned Family Court has rejected such objection by making reference of the provision of Section 9 and has considered the Section 9(1) and Section 9(2) of the Act, 1890 together. 14 CMP No.533/2024
50. It has been referred in the impugned order that Section 9 does not help the petitioner, wife, since, Section 9 provides either of the ground, i.e., ordinary residence of the minor of if the property is in the concerned districts then such petition is to be entertained.
51. The learned court, while interpreting the provision as contained under Section 9 which contains three sub-sections separately, i.e., sub-section (1), sub-section (2) and sub-section (3). All these three sub-sections are independent to each other and for the different purposes.
52. The learned court, instead of dealing with three provisions, however, the substantial provisions are two, i.e., sub-section (1) & (2), while sub-section (3) is the remedial measure in case the wrong forum having no jurisdiction has been exercised, then in such circumstances, the recourse as available under sub-section (3) of Section 9 is to be availed.
53. The learned court has considered the provision as contained under sub-section (1) and sub-section (2) of Section 9 together without taking into consideration that which matter is to be considered under the purview of Section 9(1) and which matter is to be considered under the purview of Section 9(2).
54. The learned court has failed in considering the fact that the present case is not for custody of the property of the minor and hence, there is no applicability of sub-section (2) of Section 9 for the purpose of considering the issue of jurisdiction, rather, the case 15 CMP No.533/2024 herein is, as would be evident from the factual aspect which has been admitted by the parties is with respect to the custody of the minor and hence, the residence of the minor is the only consideration to establish the jurisdiction of the court for the purpose of seeking custody of the minor.
55. The fact about taking the recourse of sub-section (3) of Section 9 has already been availed by the respondent husband when the similar petition was filed before the court at Karkardooma at Delhi and on objection made by filing a petition under Order 7 Rule 11 of the CPC admitting the fact about residence of the minor at Shahdra at Delhi, the said petition being G.P. No.45/2021 was withdrawn with a liberty to file a suit before the Court having its jurisdiction. The said order has been quoted and referred hereinabove.
56. The aforesaid therefore suggests and clarifies that the respondent husband is admitting that the minor son ordinarily resides at Shahdra, Delhi and that is the reason, he has withdrawn the said petition with a liberty to prefer a fresh petition before the Court having its jurisdiction, i.e., Shahdra at Delhi but instead of approaching the Court at Shahdra, Delhi, a petition has been filed before the Ranchi Judgeship, therefore, legal position regarding relegating the parties to the trial for the purpose of conducting any inquiry, which is mixed question of law and fact, is also to be appreciated in the facts and circumstances of the case in view of the admitted fact of admission of the ordinary residence of the minor, as has been admitted by the 16 CMP No.533/2024 respondent husband at Shahdra, Delhi, then, where is the question of relegating the parties for the trial considering the issue of jurisdiction of the court to be a mixed question of law and facts.
57. The law is well settled that inquiry is only to be conducted where the factual aspect is in dispute as the case of Ruchi Majoo (supra) is concerned, wherein, the factual aspect has seriously been disputed by both the parties and in view of the aforesaid background, the parties have been relegated before the court having its jurisdiction for adjudication on fact finding.
58. But here in the present case, when the fact about the ordinary residence of the minor has been admitted by the respondent husband then for what the inquiry is required.
59. The inquiry in the admitted fact is not required to be conducted, as has been held by the Hon'ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Ltd. Vs. Mukul Kumar Choudhuri, AIR 2010 SC 75, wherein, at paragraph-13 the Hon'ble Apex Court has observed as under:
"13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision-making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural 17 CMP No.533/2024 illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference."
60. Further, in the case of Manoj H. Mishra Vs. Union of India, (2013) 6 SCC 313, wherein, at paragraph-35, the Hon'ble Apex Court has observed as under:-
"35. In our opinion, the learned Single Judge and the Division Bench have not committed any error in rejecting the submissions made by the learned counsel for the appellant. We are not inclined to examine the issue that the actions of the appellant would not constitute a misconduct under the Rules. In view of the admissions made by the appellant, no evidence was adduced before the enquiry officer by either of the parties. Once the enquiry officer had declined to accept the conditional admissions made by the appellant, it was open to him to deny the charges. But he chose to make an unequivocal admission, instead of reiterating his earlier denial as recorded in preliminary hearing held on 26-12-1994. The appellant cannot now be permitted to resile from the admission made before the enquiry officer.-----"
61. Although, the judgments are with respect to the departmental proceeding but in principle, it has been held that when the fact is in admission, there is no need to conduct any inquiry.
62. The learned court, since, has misconstrued the interpretation of Section 9 and even though, the fact about giving declaration where the minor ordinarily resides, is as per the admission of the respondent husband in Shahdra at Delhi and as per the submission made in the suit being Original Suit No.539/2023, then, not considering the said aspect of the matter in the purport of the applicability of Section 9(1), rather, intermingling the sub-section (2) also on the ground of property, according to the considered view of this Court, the interpretation of the said provision is misconceived one. 18 CMP No.533/2024
63. The learned court ought to have taken into consideration the aforesaid admission of the respondent husband when the same has been brought to the notice but even without considering the aforesaid fact, since, no finding to that effect has been given and merely by coming to the conclusion that it is a mixed question of law and facts, petition filed under Order 7 Rule 11 of the CPC has been dismissed, which cannot be said to be proper consideration of the factual aspect.
64. The learned court while neglecting to consider the said aspect of the matter by properly appreciating the factual aspect in the touchstone of the applicability of the provision of Section 9 (1) instead of applying also sub-section (2) thereof is nothing but relegating the parties in frivolous litigation, even though, the case is not to be adjudicated in the present form in the Ranchi Judgeship.
65. This Court is exercising the power conferred under Article 227 of the Constitution of India and this Court is conscious regarding the jurisdiction which is to be exercised under Article 227 of the Constitution of India, as has been held by the Hon'ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329, wherein, the Hon'ble Supreme Court has laid down the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein, it has been laid down 19 CMP No.533/2024 that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.
i. The power of superintendence is not to be exercised unless there has been;
(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) gross abuse of jurisdiction; or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
ii. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141, wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 20 CMP No.533/2024
iii. The Hon'ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.
iv. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of 21 CMP No.533/2024 superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
66. It is evident from the judgment as has been referred hereinabove that the Court exercising the supervisory power as under Article 227 of the Constitution of India, is only to see error apparent on the face of record or if the order has been passed without any jurisdiction.
67. The consideration which has been given by the Hon'ble Apex Court regarding the power which is to be exercised under Article 227 of the Constitution of India and by considering the said proposition, this Court is of the view that it is a case of such nature where the provisions of the Guardians and Wards Act, 1890 are to be applied, in entirety.
68. Further, the part of the admission of the respondent husband has also not been considered, even though, the same was brought to the notice of the concerned learned court and very surprisingly 22 CMP No.533/2024 when no consideration has been given in either way, therefore, this Court is of the view that the error is apparent on the face of the order. Hence, interference to the impugned order is required.
69. Accordingly, the order dated 10.04.2024 passed by the Addl. Principal Judge, Addl. Family Court-II, Ranchi in O.M. Case No.539 of 2023 is, hereby, quashed and set aside.
70. In the result, the instant petition stands allowed.
71. Since, the order has been quashed and set aside and as such, as per law, the respondent husband is at liberty to approach the court having its jurisdiction.
72. Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, A.C.J.) Rohit/-A.F.R. 23 CMP No.533/2024