Allahabad High Court
Anshuman Abhishek vs Additional Principal Judge Iv Family ... on 1 August, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:50652 Court No. - 17 Case :- WRIT - C No. - 6247 of 2023 Petitioner :- Anshuman Abhishek Respondent :- Additional Principal Judge Iv Family Court Lko. And 3 Others Counsel for Petitioner :- Shamshad Ahmad,Mohammad Shahzad Ahmad Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Shri Shamshad Ahmad, learned counsel for the petitioner as well as learned Standing Counsel for respondent no. 2.
2. In the light of the order proposed to be passed, notice to private respondents is dispensed with.
3. By means of the present petitioner, the petitioner has prayed for the following main reliefs:
"i. To issue a writ, order or direction in the nature of Mandamus commanding the respondent no.1 i.e. the Additional Principal Judge IV Family Court, Lucknow to ensure compliance of its order dated 31.05.2023 enunciated in the light of its order dated 15.09.2022 which has been re-affirmed by this Hon'ble Court vide order dated 27.09.2022.
ii. To issue a writ, order or direction in the nature of Mandamus commanding the respondent no.1 i.e. the Additional Principal Judge IV Family Court, Lucknow to ensure compliance of its order dated 30.05.2022 which provided that in the event of any further non- compliance of visitation order dated 20.05.2022 by respondent no.3, the custody of respondent no.4 shall stand transferred to the petitioner.
iii. To issue a writ, order or direction in the nature of Certiorari to quash the impugned order dated 22.03.2023 passed by the respondent no.1 i.e. the Additional Principal Judge IV Family Court, Lucknow in Case no. 0248 of 2020 (Annexure no. 13 to this writ petition) directing him to proceed accordingly under Order VIII Rule 10, Code of Civil Procedure, 1908."
4. It has been submitted that the petitioner and respondent no. 3 got married on 28.2.2018 at Delhi and out of wedlock, they had a baby girl on 6.7.2019. It has been stated subsequently, respondent no. 3 on 24.10.2019 went to her matrimonial home at Noida but did not return thereafter and deceitfully went to Lucknow along with infant child. The grievance, in the present petition, is with regard to custody of the girl child who, according to the petitioner, has been removed from the parental care of the petitioner by deceit and fraudulent means.
5. It has further been submitted that respondent no. 3 lodged a FIR against the petitioner subsequent thereto, an order was passed by the Additional Chief Judicial Magistrate, Lucknow in proceedings under Section 156(3) of Cr.P.C.
6. The petitioner has moved an application under Section 25 of Guardians and Wards Act, 1890 before the Family Court, Lucknow which has been registered as Case No. 248 of 2020 in re: Anshuman Abhishek Vs. Smt. Shatakshi Vardhan. In the said suit, the petitioner has sought a direction for the custody of his minor daughter. The Principal Judge, Family Court, Lucknow issued notice to respondent no. 3 on 6.10.2020 and, on the application of the petitioner, an order dated 20.5.2022 has been passed granting visitation right to the petitioner. As per the said order, the petitioner has been permitted to meet the respondent no. 4 on every first and last Saturday of every month from 8 am to 6 pm and further to connect her on video call every other Saturday for 10 minutes twice in morning and evening.
7. The grievance of the petitioner is that despite the order granting visitation right to the petitioner, the respondent no. 3 has not permitted the petitioner to visit his minor daughter. It has emerged that it is the respondent no. 3 who is to comply with the order of the Principal Judge, Family Court, Lucknow dated 20.5.2022 and consequently, by means of the present petition, a direction has been sought to the Principal Judge, Family Court, Lucknow to ensure compliance of the order dated 30.5.2022, in the light of order dated 15.9.2022 and also for a direction to Principal Judge, Family Court, Lucknow to comply with order dated 30.5.2022, the petitioner has also assailed the order dated 22.3.2023 passed by the Principal Judge, Family Court, Lucknow.
8. On the other hand, learned Standing Counsel has raised preliminary objection regarding the maintainability of present petition under Article 226 of the Constitution of India. It has been stated that Principal Judge, Family Court, Lucknow, being the judicial authority, is not amenable under writ jurisdiction under Article 226 of the Constitution of India.
9. Learned counsel for the petitioner has submitted that such a direction as sought by him can be passed by this Court in exercise of powers conferred under Article 226 of the Constitution of India and has further submitted that there is no infirmity in the prayer sought by the petitioner and also stated that there is no error in moving the present petition under Article 226 of the Constitution of India.
10. This Court has heard learned counsels for the parties and perused the record.
11. For the sake of convenience, Article 226 of the Constitution of India in quoted herein-below:
"(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32."
12. It is clear from Article 226 of Constitution of India that the writs can be issued by this Court in case it is shown that there is a violation of fundamental rights as contained in Part III of the Constitution of India against the State. The State has been defined in Article 12 of the Constitution of India which reads as under:
"Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India".
13. The question as to whether judicial authority are State within the meaning of Article 12 of the Constitution of India has been considered by Hon'ble Supreme Court in the case of Radhey Shyam & Anr vs Chhabi Nath & Ors reported in (2015) 5 SCC 423. The relevant paragraphs of the above quoted judgement is reproduced herein-below:
"23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
....
25. Accordingly, we answer the question referred as follows : (i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;
(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction underArticle 226."
14. Also, in the case of K.P. Natarajan and Anr. Vs. Muthalammal and Ors reported in (2021) SCC Online SC 467, Hon'ble Supreme Court held as under:
"22. The contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the ex-parte decree itself, by invoking the power under Article 227, does not appeal to us. It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. In Surya Dev Rai vs. Ram Chander Rai and Others 2, this Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court. But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench. In Radhey Shyam & Anr. vs. Chhabi Nath & Others, the three member Bench, even while overruling Surya Dev Rai (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable. Therefore, we do not agree with the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the exparte decree."
15. When the facts of the instant case are tested at the touchstone of the law laid down by Hon'ble Supreme Court in the above quoted judgements what comes out is that the judicial authorities are not State within the meaning of Article 12 of the Constitution of India and hence, writ petition under Article 226 of the Constitution of India would not be maintainable.
16. In the present writ petition, the orders which have been assailed are the orders of the Principal Judge, Family Court, Lucknow and hence, assailing the orders under Article 226 of the Constitution of India would not be maintainable and also the writ of Mandamus in nature has been sought to the judicial authorities. Hence, in neither of situations, invocation of Article 226 of the Constitution of India would be maintainable.
17. Accordingly, on the aforesaid ground, the writ petition is dismissed.
Order Date :- 1.8.2023 Mohit Singh/-
..............................................................(Alok Mathur,J.)