Gujarat High Court
Dimple Paraskumar Shah - D/O Parasbhai ... vs Paraskumar Dharamchand Shah on 1 July, 2014
Equivalent citations: AIR 2015 (NOC) 779 (GUJ.)
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/8827/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8827 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
===========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India,
1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
================================================================
DIMPLE PARASKUMAR SHAH - D/O PARASBHAI CHHAGANLAL
SHAH....Petitioner(s)
Versus
PARASKUMAR DHARAMCHAND SHAH....Respondent(s)
================================================================
Appearance:
MR BALRAM D JAIN, ADVOCATE for the Petitioner
MR ABHISST K THAKER, ADVOCATE for the Respondent (Caveator)
================================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 01/07/2014
ORAL JUDGMENT
1. Rule. Mr.Abhisst K.Thaker, learned advocate, Page 1 of 16 C/SCA/8827/2014 JUDGMENT appearing on Caveat on behalf of the respondent, waives service of notice of Rule. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.
2. This petition under Articles 226 and 227 of the Constitution of India, has been preferred by the petitionerwife, inter alia, with a prayer to quash and set aside the order dated 18.03.2014, passed by the learned Judge, Family Court No.2, Ahmedabad, below the application at Ex.5, preferred by the respondenthusband in Family Suit No.432 of 2014, whereby statusquo is ordered to be maintained; meaning thereby, that the petitionerwife is not permitted to enter the matrimonial house.
3. The brief facts of the case are that the marriage of the petitioner with the respondent took place on 30.04.2006. Thereafter, the petitioner started residing at her matrimonial home at Ahmedabad, which house belongs to the Page 2 of 16 C/SCA/8827/2014 JUDGMENT father of the respondent. Initially, the married life of the petitioner and the respondent was happy. However, soon disputes arose between them which led to an acrimonious situation. The petitioner alleges physical and mental torture from the respondent. On 28.12.2006, a daughter was born to the petitioner, at the house of her parents. It is the case of the petitioner that though the family members of the respondent came to see her and the child at her parental house, they never took the petitioner and her daughter back to the matrimonial house. After about seven months, the respondent took the petitioner and her daughter back to the matrimonial house but sent her back again within a short period. It appears that criminal proceedings under Section 498A and 125 of the Code of Criminal Procedure, 1973, as well as under the provisions of the Protection of Women from Domestic Violence Act, 2005, were initiated by the petitioner. A compromise took place between the petitioner and the respondent, as a result of which the petitioner came back to live in the house of the Page 3 of 16 C/SCA/8827/2014 JUDGMENT respondent with the minor child. According to the petitioner, an altercation took place on 20.03.2014, after which the respondent had the petitioner and her minor daughter removed from the matrimonial house with the help of some hooligans. The petitioner sought to register a complaint at the Kalupur Police Station but the concerned Police officers refused to register it on the ground that the impugned order has been passed by the Family Court, granting statusquo. The respondent has filed Hindu Marriage Petition No.432 of 2014, inter alia praying for a decree of divorce. Along with the said petition, an application at Ex.5 has been filed by the respondent with a prayer to restrain the petitioner from causing any disturbance to his peaceful possession of the matrimonial house and for restraining her from staying in the premises belonging to his father and for grant of status quo. Upon this application the Family Court has passed the impugned order dated 18.03.2014, ordering statusquo to be maintained in respect of the suit property. Aggrieved by this order Page 4 of 16 C/SCA/8827/2014 JUDGMENT which has the effect of restraining the petitioner from entering the matrimonial house, she has approached this Court by filing the present petition.
4. Mr.B.D.Jain, learned advocate for the petitioner, submits that the impugned order has been passed without issuance of notice to the petitioner and without granting her an opportunity of hearing. The Family Court has taken into consideration only the submissions made on behalf of the respondent but has not thought it fit to call upon the petitioner or to hear her version of the matter. By directing statusquo to be maintained, the Family Court has, in effect, prevented the petitioner from living in her matrimonial house, in spite of the fact that the petitioner is still the wife of the respondent and no divorce has taken place, as yet.
5. On the other hand, Mr.Abhisst K.Thaker, learned advocate for the respondent, submits that it was necessary for the respondent to have filed the Page 5 of 16 C/SCA/8827/2014 JUDGMENT application restraining the petitioner from entering the matrimonial house which belongs to his father, as the petitioner was threatening that she would falsely implicate the respondent and his family members in criminal proceedings by fling a false complaint. It is submitted that due to the threat given by the petitioner that the respondent and his family would be put in jail, the application for injunction has been filed, and has rightly been granted by the Family Court.
6. This Court has heard Mr.B.D.Jain, learned advocate for the petitioner, Mr.Abhisst K.Thaker, learned advocate for the respondent Caveator, perused the averments made in the petition, contents of the impugned order and other documents on record.
7. It ought to be noted that the impugned order is an exparte interim order, pending the final decision of the application at Ex.5 for grant of an injunction, preferred by the respondent. In normal circumstances, the Court may not have Page 6 of 16 C/SCA/8827/2014 JUDGMENT interfered with an exparte interim order. However, the nature of the case, the effect of the impugned order and the aspect whether the order has been passed in accordance with law are required to be kept in mind.
8. In the present case, it is an admitted position that the impugned order has been passed without issuance of notice to the petitioner, in spite of the fact that the Family Court has itself opined in the said order that for deciding the matter, the other side should be heard. However, having said so, the Family Court has proceeded to pass an exparte statusquo order without calling upon the petitioner. No notice has been issued to her and she has not been heard before the order was passed. The impugned order, in effect, restrains the petitioner from entering the matrimonial house. The reason recorded in the impugned order appears to be that in the proceedings under Section 125 of the Code of Criminal Procedure, 1973, that had taken place between the parties earlier, the petitioner has mentioned a different address than that of the Page 7 of 16 C/SCA/8827/2014 JUDGMENT matrimonial house.
9. Mr.B.D.Jain, learned advocate for the petitioner, has submitted that a compromise had taken place between the parties after those proceedings. It is true that when those proceedings were initiated, the petitioner was staying at her parental house. However, after the compromise, the petitioner came back to her matrimonial house and stayed there till 20.03.2014 when she was allegedly forced out by the respondent with the help of some hooligans.
10. The aspect regarding the compromise between the parties and the fact that the petitioner was residing at the matrimonial house thereafter, has not been denied by the learned advocate for the respondent. This fact has been totally ignored by the Family Court in the impugned order. The fact remains that the petitioner is still the legally wedded wife of the respondent, until and unless a decree of divorce is passed. What is worthy of consideration is whether any urgent or extraordinary circumstances were Page 8 of 16 C/SCA/8827/2014 JUDGMENT prevalent, so as to necessitate the passing of the impugned order, which has a drastic effect. A perusal of the impugned order does not disclose that any such urgent situation had arisen. The only reason stated by the respondent in his application is regarding the threats allegedly given by the petitioner to falsely implicate the respondent and his family members in criminal proceedings. This can hardly be termed as an extraordinary situation necessitating the passing of the impugned order, without issuance of notice to the petitioner or granting her an opportunity of hearing.
11. As admittedly, the petitioner has not been heard before the impugned order was passed, the principles of natural justice have been violated. The effect of the impugned order is that the petitioner is restrained from entering her matrimonial house. It is not for this Court to opine upon the merits of the case. However, the manner in which the impugned order has been passed would certainly fall under the scrutiny of this Court under its supervisory Page 9 of 16 C/SCA/8827/2014 JUDGMENT jurisdiction.
12. It is a settled position of law that when an adverse order is passed that would affect the rights of parties or result in civil consequences, it is imperative that the affected party should be granted an opportunity of hearing before it is passed.
13. In Malavkumar Arunbhai Patel v. Sardar Patel University & Ors. 2007(1) GLR 413, this Court has held as below:
""24. In A.K.Kraipak v. Union of India, reported in AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under:
"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no Page 10 of 16 C/SCA/8827/2014 JUDGMENT decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi judicial in character. Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasijudicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/ 157 1968 = (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of Page 11 of 16 C/SCA/8827/2014 JUDGMENT the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
25. Further in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, reported in (2001)1 SCC 182, the Supreme Court has held as under in paragraphs 1 and 2 of the reported judgment:
"Since the decision of this Court in Kraipak's case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances who then is a reasonable man the man on the clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India upon reliance on the attributes of the doctrine as above Page 12 of 16 C/SCA/8827/2014 JUDGMENT stated as below (SCC p.387,para 8) "8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H. K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances'. However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J observed in Russell v. Duke of Norfolk:Page 13 of 16
C/SCA/8827/2014 JUDGMENT "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subjectmatter that is being dealt with and so forth."
2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Straitjacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of noncompliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the mostaccepted methodology of a governmental action."
26. It is now an accepted proposition of law that any statutory body which is entrusted by statute with discretion, must act fairly. It does not matter whether its functions are described as judicial or quasijudicial on the one hand, or as administrative on the other. Even an administrative order, which Page 14 of 16 C/SCA/8827/2014 JUDGMENT involves civil consequences must be made consistently with the rules of natural justice. Although the expression 'civil consequences' has not been defined anywhere, the observation made in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at para66 on page 440 is relevant in this context and reads as below:
"What is civil consequence, let us ask ourselves, by passing verbal booby traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties material deprivation and non pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence""
(emphasis supplied)
14. Applying the principles of law enunciated by the Court in the abovementioned judgment to the facts of the present case, this Court is of the view that the impugned order, having been passed without following the principles of natural justice, and which has resulted in the infliction of civil consequences upon the petitioner, cannot stand the scrutiny of law.
15. In the result, the petition is allowed. The impugned order dated 18.03.2014, passed by the Page 15 of 16 C/SCA/8827/2014 JUDGMENT learned Judge, Family Court No.2, Ahmedabad, below the application at Ex.5, in Family Suit No.432 of 2014, is hereby quashed and set aside. The Family Court is directed to grant a proper and adequate opportunity of hearing to the parties and thereafter to decide the application below Ex.5, filed by the respondent in Family Suit No.432 of 2014, as expeditiously as possible. Rule is made absolute. There shall be no orders as to costs.
16. It is made clear that this Court has not entered into the merits of the case.
(SMT. ABHILASHA KUMARI, J.) sunil Page 16 of 16