IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2008 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) Nos.3856 and 3857 of 2007 and M.P.Nos.1 and 1 of 2007 and 1 and 2 of 2008 B.Suresh Babu .. Petitioner in both the C.R.P vs. Nithya .. Respondent in both the C.R.P
Civil Revision Petitions have been filed under Article 227 of the Constitution of India, against the Order of Notice, dated 02.11.2007 passed in I.A.Nos.701 and 700 of 2007 in G.W.O.P.No.1 of 2005 on the file of the Family Court, Coimbatore.
For petitioner : Mr.M.Ravindran, Senior Counsel for Mr.C.R.Dhasarathan For respondent : Mr.P.S.Raman, Senior Counsel for Mr.P.V.Balasubramanian BFS Legal C O M M O N O R D E R
Civil Revision Petition in C.R.P (NPD) No.3857 of 2007 has been preferred against the Notice ordered in I.A.No.700 of 2007 by the Family Court, Coimbatore, wherein the respondent herein has sought an order to set aside Clauses 2 to 7 of the compromise decree, dated 23.02.3005 passed in G.W.O.P.No.1 of 2005, based on the joint memo of compromise.
2. Civil Revision Petition in C.R.P (NPD) No.3856 of 2007 has been preferred by the petitioner / respondent against the Notice ordered in I.A.No.701 of 2007 on the file of the Family Court, Coimbatore, wherein the respondent herein has sought an order of interim stay against the operation of Clauses 2 to 7 of the aforesaid compromise decree, dated 23.02.2005.
3. The brief facts of the case are as follows :
The respondent herein had filed H.M.O.P.No.695 of 2004 on the file of the Family Court, Coimbatore to dissolve the marriage that was solemnised between the petitioner and the respondent on 18.10.2000. Similarly, the revision petitioner herein filed G.W.O.P.No.1 of 2005 on the file of the court below, under Sections 7 (1) (b) and 8 (1) of Guardians and Wards Act 1890, for appointing the petitioner as Guardian of his minor son Rahul born out of the wedlock. During the pendency of both the Original Petitions, there was a compromise arrived at between the parties herein and they filed a joint memo of compromise, signed by both the parties and their counsel. The memo of compromise was recorded and a decree was passed in terms of the compromise by the court below, based on the compromise decree, dated 23.02.2005, H.M.O.P.No.695 of 2004 filed by the respondent herein seeking divorce was allowed and the G.W.O.P filed by the petitioner herein was ordered in terms of the joint memo of compromise filed by both the parties.
4. As per the Interlocutory Application in I.A.No.700 of 2007, the respondent herein has sought an order to set aside Clauses 2 to 7 of the compromise decree passed in G.W.O.P.No.1 of 2005 and the application, I.A.No.701 of 2007 has been filed seeking an order of interim stay of the operation of Clauses 2 to 7 of the compromise decree. The Family Court, Coimbatore, ordered Notice in both the Interlocutory Applications. Aggrieved by which, the revision petitions have been filed by the petitioner / respondent.
5. The memo of compromise filed by both the parties herein before the Family Court, reads as follows :
“Due to the intervention of well wishers, counsel and friends, both parties have arrived at a settlement in respect of the disputer between them. The details are:
1) The custody of minor Rahul shall remain with the mother viz., the respondent herein.
2) The father (Sri Suresh Babu) shall be entitled to visitation rights as follows:
3) (a) The father shall have access to the child for two connective week ends :
first week and commencing on Friday evening 6 p.m till sunday Evening 6 p.m.
(b) and the second week and will commence on Saturday Morning at 8.45 a.m. and Sunday Evening 6 p.m.
(c) During the third week end, the child will be retained by the mother.
(d) During the gap between the end of second week end and the commencement of the first week and the Father shall have the right to take the child on a Wednesday directly from the school and retain the child till 7 p.m.
4) During vacation i.e., quarterly, half yearly and summer vacation, the father shall have the custody of the child for the first half of the holiday and the mother will have custody for the second half of the holidays.
5) The father undertakes to pick up the child and also drop him back at the agreed timings.
6) During emergencies and important occasions, functions etc., the parties will mutually agree regarding custody and if necessary they can seek the assistance of the counsel to bring about an amicable agreement on that.
7) The father and mother will have the custody of the child during birthdays of the child as follows :
(a) For the first year, the father will have the custody during star Birth Day and the mother shall have custody during the English Birth Day.
(b) This arrangement will be altered during the next year, i.e., the father will have the custody during the English Birth Day and the Mother will have custody during the star Birth Day of the child and this arrangement shall be continued thereafter alternatively.
8) Both parties have been agreed to have the marriage dissolved by a Decree of Divorce by mutual consent and pray that order may be passed by this Hon’ble Court dissolving the marriage by mutual consent.
9) The wife, i.e., Mrs.Nithya given up her claims for maintenance, past, present and future and neither party on their family members shall have any claim against each other on any ground whatsoever.
10) Both parties have exchanged their articles and will have no further claim against each other.
11) Both parties hereby withdraw all the allegations levelled against each other (in view of this compromise) in the above proceedings and in the notices, including the defamation notice issued by the mother of Sri Suresh Babu Mrs.Hamsaveni Ammal.
12) Both parties shall strive to protect the welfare of the child and shall not do anything effecting the interest of the child.
13) Each parties shall bear his / her costs.
14) Both parties pray this compromise memo may be recorded and orders may be passed in favour of this memo.”
6. It is an admitted fact that the compromise decree, dated 23.02.2005 was passed by the court below in terms of the joint memo of compromise filed by both the parties. Subsequently, the respondent herein filed Interlocutory Application in I.A.No.700 of 2007 in G.W.O.P.No.1 of 2005 before the court below, seeking an order to set aside Clauses 2 to 7 of the compromise decree, dated 23.02.2005 passed by the court below in G.W.O.P.No.1 of 2005. In the aforesaid application, the respondent has stated that the application was filed due to change of circumstances subsequent to the passing of the decree. The respondent has filed another application in I.A.No.701 of 2007, seeking interim stay of the operation of the aforesaid decree, dated 23.02.2005, so far as it relates to clauses 2 to 7 of the said compromise decree is concerned. The trial court numbered the applications and ordered notice to the revision petitioner herein, being the respondent in the Interlocutory Applications, pending before the court below. Aggrieved by which, the revision petitions have been preferred by the respondent therein.
7. Mr.M.Ravindran, learned Senior Counsel appearing for the petitioner submitted that the court below could not have numbered the Interlocutory Applications and ordered notice to the respondent, since the respondent having been enjoyed the benefit of compromise decree, has attempted to deny the right of the petitioner herein, under the compromise decree. The learned Senior Counsel further contended that though the petitioner was not willing for dissolution of marriage between himself and the respondent herein, however, gave consent on account of the compromise arrived at, joint memo of compromise being filed, based on which, the compromise decree was passed and as such, the petitioner herein had agreed for allowing H.M.O.P.No.695 of 2004, seeking divorce. However, the respondent herein having enjoyed the benefit under the compromise decree and also continuing the same, has come forward with the applications only to deny the rights of the revision petitioner herein, as per the compromise decree, with an ulterior motive, hence, the Interlocutory Applications, seeking orders to set aside Clauses 2 to 7 of the compromise decree and for interim stay against the operation of the said Clauses of the compromise decree, could have been dismissed on the ground that the court became functus officio.
8. Per contra, Mr.P.S.Raman, learned Senior Counsel appearing for the respondent relying on the following decisions
1. Jai Prakash Khadria vs. Shyam Sunder Agarwalla & Anr., AIR 2000 SC 2172
2. Rosy Jacob vs. Jacob A.Chakramakkal, AIR 1973 SC 2090
3. Reginald Danieal vs. Sarojam and Anr., AIR 1969 Mad 365
submitted that an order relating to custody of children by very nature is not final but interlocutory subject to modification at any future time upon proof of change of circumstances, requiring change of custody but such change must be proved to be in the paramount interest of the child and hence, the applications filed by the respondent herein before the court below is legally maintainable and the orders for issuance of Notice to the petitioner / respondent cannot be challenged by way of revision.
9. The Hon’ble Supreme Court in the decision, Jai Prakash Khadria vs. Shyam Sunder Agarwalla & Anr., reported in AIR 2000 SC 2172 has held as follows :
“7. The orders relating to custody of children are by the very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.”
10. The Hon’ble Apex Court has ruled in the decision, Rosy Jacob vs. Jacob A.Chakramakkal, reported in AIR 1973 SC 2090 that orders relating to custody of wards, even when based on consent are liable to be varied by court, if welfare of wards demands variation. In the said decision, it has been made clear that there should be no slur on the part of either the appellant or the respondent because of the several proceedings pending and the decree for judicial separation which was confirmed therein, does not cast any cloud on the reputation or character of the husband or the wife. Though, they have reached a settlement keeping in view of all the circumstances and particularly the welfare of their minor children, the Hon’ble Apex Court ruled that orders relating to custody of wards passed even on consent is liable to be varied if the welfare of wards demands variation.
11. This Court in the decision, Reginald Danieal vs. Sarojam and Anr., reported in AIR 1969 Mad 365 has held that orders relating to the custody of a child being always of a temporary nature those interested in the minors are at liberty to apply to the court at any time for the charge of minor’s custody.
12. Mr.M.Ravindran, learned Senior Counsel appearing for the petitioner submitted that there is no change of circumstance, as stated by the respondent to set aside Clauses 2 to 7 of the compromise decree, dated 23.02.2005 and only for the purpose defeating the legitimate right of the petitioner, the respondent herein has filed the Interlocutory Applications before the court below. According to the learned Senior Counsel, there is no justification on the part of the respondent to file the Interlocutory Applications, having obtained an order of divorce in the H.M.O.P and also the custody of the minor son Rahul, based on the compromise decree, challenging the other provisions of the compromise decree, seeking an order to set aside Clauses 2 to 7 is with an intention only to deprive the right of the revision petitioner.
13. In the affidavit filed in support of the Interlocutory Applications before the Family Court, the respondent herein has stated that at the intervention of her relatives and friends to resolve the issues amicably, considering the welfare, well being and interest of the child, she was constrained to enter into the memo of compromise with the petitioner herein and as regards the custody of the child, with the condition that the petitioner herein shall alone come and take care of the child and she does not want the child to get influenced by other third parties. However, it is not in dispute that the respondent has not filed any application to set aside the entire compromise decree, but has sought an order only to set aside Clauses 2 to 7 of the compromise decree, which are relating to the visiting right of the petitioner herein, being the father of the child and therefore, according to the learned Senior Counsel for the petitioner herein, the applications pending before the court below are liable to be dismissed.
14. It is an admitted fact that the revision petitions have been filed under Article 227 of the Constitution of India and it is a settled proposition of law that revision petition under Article 227 of the Constitution can be filed only if there is no alternative remedy available to the aggrieved party, to prevent abuse of process of the court, and to meet the ends of justice. The respondent herein has filed the Interlocutory Applications before the Family Court, Coimbatore, seeking an order to set aside certain clauses of the compromise decree, dated 23.02.2005 passed by the court below in G.W.O.P.No.1 of 2005 and also for interim stay against the operation of the said Clauses of the compromise decree.
15. The learned Senior Counsel appearing for the revision petitioner submitted that the compromise decree rendered by the court below based on the joint memo of compromise cannot be altered by the court below, as it reached its finality and the court became functus officio. On the other hand, the decisions cited by the learned Senior Counsel appearing for the respondent referred to above would clearly show that orders relating to custody of wards, even when passed on consent, are liable to be varied by the court, if the welfare of wards demands variation and as such, the order relating to custody of child by virtue of its nature is not final, but only Interlocutory.
16. In such circumstances, the Interlocutory Applications filed by the respondent herein before the court below cannot be construed as an abuse of process of court, so as to warrant any interference of this court, under Article 227 of the Constitution of India. The other application in I.A.No.701 of 2007 is filed for interim stay of the operation of Clauses 2 to 7 under the compromise decree, dated 23.02.2005.
17. It is seen from the impugned order that the court below has numbered the Interlocutory Applications and ordered only notice to the petitioner herein, as he is the respondent in the applications. It cannot be disputed that the revision petitioner is having every right to raise his defence against the plea of the respondent herein, seeking to set aside certain Clauses of the compromise decree, for which she had given her consent, by way of filing joint memo of compromise. Similarly, the respondent herein being the petitioner in the Interlocutory Applications has to establish the genuineness of the alleged change of circumstance, which warrants for filing the applications and also to justify the relief sought for by her.
18. It is well settled that revision can be preferred when a person is aggrieved by an impugned order passed by the court, subordinate to this court, which appears to have exercised its jurisdiction not vested in it by law or to have failed to exercise its jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material illegality, other wise revisions are not maintainable, as per Section 115 of the Code of Civil Procedure. The Revision under Article 227 of the Constitution could be maintainable, only if there is no alternative remedy available to the aggrieved party to prevent abuse of process of court and to meet the ends of justice, under the supervisory power of the High Court.
19. When the Interlocutory Applications are legally maintainable before the court below, ordering notice cannot be construed as illegal or abuse of process of the court, so as to warrant the interference of this Court under Article 227 of the Constitution. As contended by the learned Senior Counsel appearing for the petitioner, normally a party after getting certain advantages, under the compromise decree, cannot agitate the benefit or advantages, which is available to the other party under the compromise decree. However, it is settled proposition of law that in a case of custody of minor child, the welfare of the child is paramount and hence, even an order passed on compromise has to be treated as an Interlocutory Order, in the eye of law and therefore, the court below has jurisdiction to decide the matter on merits. As ruled by the Hon’ble Apex Court in AIR 2000 SC 2172 (cited supra), orders relating to custody of child are interlocutory in nature, subject to modification, considering the paramount interest of the child. Hence, numbering the Interlocutory Applications, which are legally maintainable and ordering notice to the respondent therein cannot be an abuse of process of the court.
20. The revision petitioner herein being a party to the compromise decree and also the father of the child is entitled to place all his defences to substantiate his visiting right as per the compromise decree and the court below is empowered to decide the same on merits and similarly, the respondent is also entitled to place the alleged change of circumstance before the court below. Therefore, I am of the view that it is premature to challenge the order of notice issued by the court below, when the applications are legally maintainable and further, there is no stay or adverse order passed by the court below against the petitioner. It is an admitted fact that there is no final order passed by the court below, to be under challenge in the revision petitions. As there is no final order passed by the court below and only notice has been ordered to the petitioner herein, he can seek his remedy in the same court and therefore, it cannot be said that there is no alternative remedy available to the petitioner to invoke Article 227 of the Constitution. When a petition is legally maintainable and in the absence of any final order being passed, it is to be held that remedy is available in the same court. In view of the decisions of the Hon’ble Supreme Court reported in AIR 2000 SC 2172 and AIR 1973 SC 2090 (cited supra), the court below cannot be construed as functus officio. In the aforesaid circumstances, the Civil Revision Petition in C.R.P (NPD) No.3856 of 2007 is liable to be dismissed, on the ground that the revision petition is premature, since remedy is available to the petitioner in the same court, as there is no final order under challenge in the revision petition.
21. As per the compromise decree, the petitioner herein being the father is entitled to the visiting right and other rights, which cannot be curtailed by way of granting interim stay. It is clear that the compromise decree has been passed only by mutual consent of both the parties, as they have filed joint memo of compromise to that effect, signed by both the parties and their counsel, hence, there shall be no interim stay against Clause 2 to 7 of the compromise decree, dated 23.02.2005 passed by the court below till the disposal of the main application. Considering the same, C.R.P (NPD) No.3856 of 2007 is allowed and the application filed in I.A.No.701 of 2007, seeking interim stay is dismissed.
21. In the result, the C.R.P (NPD) No.3856 of 2007 is allowed and C.R.P (NPD) No.3857 of 2007 is dismissed. Consequently, connected miscellaneous petitions are closed. On the facts and circumstances, the court below is directed to dispose the I.A.No. 700 of 2007, within a period of three months from the date of receipt of a copy of this order, uninfluenced by the findings of this court in the order, independently, according to law on merits. No order as to costs.
tsvn
To
The Family Court,
Coimbatore
[ PRV / 16104 ]