Madhya Pradesh High Court
Smt. Hemlata @ Hema Through Next Friend / ... vs Deepak on 29 March, 2016
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WP No.6114/2015
29/03/2016
Mr Ajay Bagadiya, learned counsel for the petitioner.
Mr A.K. Sethi, learned counsel for the respondent.
The petitioner before this court has filed this present petition against the order dated 28-07-2015 passed by the II Additional Principal Judge, Family Court, Indore in H.M.A. Case No. 871/2011.
Its a very unfortunate situation wherein an application has been filed by the petitioner Hemlata through her father Manakchand. It has been stated that Hemlata is bedridden and she is living with her husband. It has been further stated that an application was preferred by the father of the petitioner Hemlata for treating her daughter by certain experts medical practitioner, but the same has been turned down by the trial court.
On the other hand, learned counsel for the respondent Shri Sethi stated that the sole respondent Deepak, who is the husband of the petitioner is treating his wife in his house and an intensive care unit has been established in the house itself of the husband Deepak and more than a sum of Rs. One crore has been spent in looking after his wife, who is critically ill and almost in vegetable state.
Earlier also the dispute came up before this court on some Interlocutory application and this court while deciding Writ petition No. 13335/2013 has categorically asked a question to the father of the girl i.e whether he is ready to keep the girl in his house for treatment. The father of the girl through his son Mr Sanjay Khandelwal has informed this court that they are not ready to take the girl to their house. It is really unfortunate, the father and brother of the girl do not want to take their daughter/sister Hemlata to their house, for advance treatment -2- and trying to create all kind of hindrance in the treatment of Hemlata, which is going on.
This court while deciding the earlier litigation ie WP No. 13335/2013 has passed the following order on 03-04-2014:-
"The present petition has been filed by petitioner-Smt. Hemlata through her father Manakchand being aggrieved by an order dated 31.10.13 by which the family court has permitted the father of Smt. Hemlata namely Manakchand to meet his daughter Hemlata, who is suffering from some neurological disorder.
The facts of the case reveal that Hemlata and Deepak entered into a wedlock on 27.11.91 as per the Hindu Rites and they are blessed with a daughter and a son. It is also not in dispute that Hemlatal is critically ill and is confined to bed since 2008. The sole respondent, who is the husband is treating his wife and a intensive care unit has been established in the house itself of the husband and more than a sum of Rs.1 crore has been spent in looking after his wife, who is critically ill and almost in a vegitable state. For the reasons best known to the husband, he has filed a divorce petition and the same is pending before the Principal Judge, Family Court, Indore. An application has been preferred by the her next friend of the petitioner/father Manakchand for permitting the father and the relatives to meet the daughter twice a week as she is critically ill. The learned Judge of the Family Court has granted permission to the father to meet his daughter once in a month. It is pertinent to note that two grown up children aged about 20 years and 21 years are also residing in the same house and they are looking after their mother. As there was an apprehension on the part of the father that the daughter is not being looked after properly, this Court on 26.3.14 has sought instructions from the learned counsel for the petitioner to inform this Court whether the parents of Hemlata are ready to keep the petitioner in their house or not. A categoric statement has -3- been made before this Court by the parents through Mr. Sanjay Khandelwal, who is present in the court and who is a brother of the petitioner that the parents of the petitioner and her relatives are not ready to keep the daughter in their house. It is really unfortunate that the parents of the girl are not ready to keep the girl in their house and they want to interfere with the treatment, which is being done by the husband of the wife in his own house by visiting the girl twice in a week. Shri Sethi learned Sr. Counsel has fairly stated before this Court that the husband of the present petitioner undertakes to look after the petitioner even after the divorce proceedings are over and even otherwise also and it is not a case where there is any whisper of any kind about any ill-treatment to the wife, who is not well and is in a vegitable state. This court has carefully gone through the record and there is no single statement in respect of any illtreatment or lack of treatment to the wife in question and especially in light of the fact that the parents of the girl have declined to keep the girl, this Court does not find any reason to interfere with the order dated 31.1.2013. Not only this, the writ petition has been filed under Article 227 of the Constitution of India. The Apex Court in case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph No.49 has held as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article
227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article -4- 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of
superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of 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.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a -5- rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree
of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
Keeping in view the aforesaid judgment delivered by the apex court, the order passed by the learned Judge as it does not suffer from any legal infirmity nor has been passed without jurisdiction, the question of interference in the peculiar facts and circumstances of the case, does not arise. Resultantly, the writ petition is dismissed. However, the trial Court shall also decide the divorce petition, as expeditiously as possible at an early date."
-6-Not only this, in another Writ petition No. 5510/2014 order dated 30-09-2014, this court passed the following order :-
"Shri V. Panot, learned counsel for petitioner. Shri A.K.Sethi, learned senior counsel with Shri Harish Joshi, learned counsel for respondent. Heard.
This writ petition has been filed by petitioner challenging the order of Family Court dated 19/6/2014 rejecting the petitioner's application under Section 9(2) of the Family Courts Act. Learned counsel for petitioner submits that petitioner has filed the said application with an intention that petitioner be permitted to meet his daughter and to ensure that proper treatment is being given to her daughter.
Learned counsel for respondent has pointed out that the Supreme court by order dated 22/8/2014 passed in SLP (Civil) No. 16140/2014 has duly protected the interest of petitioner.
The Supreme court has passed the following order in the above SLP:
"This Special Leave Petition is filed by one Mr. Manakchand who is next friend and father of Smt. Hemlata wife of Deepak Khandelwal. Smt. Hemlata is critically ill. She is at present in the house of the respondent who is her husband. This petition is filed inter alia making allegation that father of Ms. Hemlata i.e. Mr. Manakchand is not allowed to meet Ms. Hemlata. Affidavit is filed by the respondent. Paragraphs 6 and 7 of the said affidavit read as under:
"6. The respondent is looking after her and undertakes to look after her for her whole life and afford best kind of treatment for her. He has filed divorce petition against her because there is no female member in the family to look after the family affairs. He requires a companion with whom he can share his feelings. He does not want to enter into any illegal or immoral relationship with anybody. He undertakes to look after Hemlata even after the decree of divorce. He had also requested the father of Hemlata to take custody of her but he refused.-7-
There are no allegations by him against Hemlata or against him in respect of ill treatment to the petitioner.
7. So far as the permission of meeting Manakchand and Hemlata is concern being a father he has a right to know about the health of his daughter and can meet her any time he wishes. No permission is required for the same. Hemlata is in coma and unable to speak hence there is no question of taking any instruction from her. The only intention of Manakchand behind the application is to put the blame of the unfortunate incident on the respondent and the doctors. This is not permissible."
Learned counsel for the respondent confirms the above statements made by the respondent. In the circumstances, nothing really survives in this petition.
Needless to say that Ms. Hemlata's father viz. Mr. Manakchand can go to respondent's house to see Ms. Hemlata. He may visit the respondent's house twice a week by prior intimation. If he visits the house, the respondent will abide by above statements made in the affidavit and ensure that he is able to meet his daughter Ms. Hemlata.
The Special Leave Petition is disposed of in the afore-stated terms."
Counsel for respondent has also fairly stated before this court that he will duly abide by the aforesaid order and he has no objection if petitioner visits the ailing wife of respondent in terms of the aforesaid order.
Keeping in view the order of the Supreme court as also the statement made by counsel for respondent before this court I do not find any good ground to interfere in the impugned order of trial court. The writ petition is accordingly disposed of. Keeping in view the nature of controversy, the trial court is directed to decide the divorce petition as expeditiously as possible. C.C. as per rules. "
In light of the aforesaid order, this court is of the considered opinion that the trial was justified in rejecting the application preferred by the father of Smt Hemlata (petitioner). No case for interference is made out in the matter.-8-
The petition stands dismissed. However, the trial court is directed to ensure compliance of the order passed by this court dated 03-04-2014, as expeditiously as possible.
Certified copy as per rules.
(S. C. SHARMA) JUDGE RP