Under the said Act, it is the welfare of the minor that has been granted prime importance. It is the duty of the Court while exercising powers thereunder to be satisfied that any order passed by it is for the welfare of the minor.
In Gayatri Bajaj Vs. Jiten Bhalla, (2012) 12 SCC 478, the Supreme Court in paragraph 7 observed thus:
"7. In a matter relating to the custody of children the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Even the statutes, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 make it wp4897.14.odt 7/10 clear that the welfare of the child is a predominant consideration. In a matter of this nature, particularly, when the father and mother are fighting their case without reference to the welfare of the child, a heavy duty is cast upon the court to exercise its discretion judiciously bearing in mind the welfare of the child as the paramount consideration."
Under Section 12(1) of the said Act, the Court is empowered to make an interlocutory order so as to protect the person or property of the minor as it thinks fit. While considering an application for appointment of guardian, if it is found at an interlocutory stage that the welfare of the minor requires an amount be made available for being paid to the minor with a view to protect the person of the minor and his/her interests, such power would be available with the Court. Provisions of Section 12(1) of the said Act will have to be construed in a manner that would protect the person of the minor and if for such purpose grant of interim maintenance is warranted, the Court would be empowered in that regard. The Allahabad High Court in Khurshid Grover (supra) has rightly observed that provisions of Section 12(1) of the said Act are of wide amplitude and no restrictive meaning should be given to said provisions. The welfare of the minor being the paramount consideration, the power to grant interim maintenance will have to be read in aforesaid provisions. Moreover, during pendency of proceedings when it is brought to the notice of the Court that the welfare of the minor requires to be taken care of by directing one party to pay an amount of interim maintenance, such power can surely be exercised in the facts of the case.
Bombay High Court
Sreenivasagopalan ... vs Meenakshi Tripurari on 31 July, 2015
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. An interim order passed by the Family Court, Nagpur directing the petitioner to pay maintenance pendente lite in proceedings filed under Section 7 of the Guardian and Wards Act, 1890 (for short the said Act) is under challenge on the ground that there is no jurisdiction conferred under the said Act to award interim maintenance. Another order granting partial access to the petitioner is also under challenge.
3. The petitioner and the respondent were married on wp4897.14.odt 2/10 15-12-2002 and out of said wedlock, they have two children. The relations between the petitioner and the respondent having become strained, they started residing separately. The present petitioner has filed proceedings for divorce which are pending. With a view to get a declaration that the petitioner was the guardian of the minor children, he filed proceedings under Section 7 of the said Act. Prayer for grant of custody was also made.
4. During pendency of aforesaid proceedings, the respondent and the two children filed an application before the Family Court praying that the petitioner be directed to pay a sum of Rs.15,000/- per month to the respondent as maintenance and a sum of Rs.10,000/- each to the minor children towards the maintenance. It was stated that the respondent who was looking after the children had to incur various expenses including education of the children, and hence, prayer for grant of maintenance was made.
5. The petitioner filed his reply opposing said application and took the stand that an amount of Rs.33,00,000/- had already been paid by him to the respondent and that an order of interim maintenance had already been passed in proceedings under the Domestic Violence Act. The jurisdiction of the Family Court to grant interim maintenance in the proceedings was also challenged. By the impugned order, the learned Judge of the Family Court granted an amount of Rs.5000/- each per month to the children towards the maintenance. The prayer of the respondent for grant of maintenance was rejected.
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6. In so far as the prayer for grant of visitation rights to the petitioner is concerned, the learned Judge of the Family Court passed an interim order granting fortnightly access to the petitioner with gradual increase in the period of access. These orders are under challenge in the present writ petition.
7. Shri S.V. Sirpurkar, the learned Counsel appearing for the petitioner submitted that there was no jurisdiction with the Family Court to grant interim maintenance in proceedings under Section 7of the said Act. According to him, the power to make certain interlocutory orders have been conferred by Section 12 of the said Act and they are only in relation to production of the minor child and interim protection of the person or property of the minor. He, therefore, submitted that in the absence of any express grant of power in the matter of paying interim maintenance, the Family Court could not have directed interim maintenance to be paid. In this regard, he sought to draw support from the recommendations of the Law Commission of India and the proposed amendment to the said Act. He submitted that an amendment as proposed by inserting Section 19G in the said Act was with regard to granting prayer to the Court to pass appropriate orders for the maintenance of children. He, therefore, submitted that such provisions not being present in the said Act, it was clear that by amending the same, the legislature intended to grant such power to the Courts. He, therefore, submitted that the order directing payment of interim maintenance was itself without jurisdiction.
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8. Without prejudice, it was submitted that the petitioner had already paid a sum of Rs.33,00,000/- to the respondent voluntarily and unless the said amount was duly accounted for, she was not entitled for grant of any interim maintenance even as regards minor children. In that regard, he placed reliance on the judgment of the Delhi High Court in the case of Alok Kumar Jain vs. Pornima Jain in CM(M) No.367/2007 decided on 17-4-2007. He then submitted that in proceedings under the Domestic Violence Act, 2005 an amount of Rs.5000/- each per month was directed to be paid to the children. It was, therefore, open for the petitioner to have sought enhancement in aforesaid amount in those proceedings and, therefore, grant of interim maintenance in the present proceedings was also unwarranted.
9. As regards order granting visitation rights, it was submitted that said order has been passed without appropriately considering the guidelines framed in the matter. He submitted that visitation rights ought to have been granted on regular basis, but instead, the same are granted on fortnightly basis. He, therefore, submitted that during the intervening period of 15 days, the petitioner was deprived of being in touch with his children.
Per contra, Shri Tiwari, the learned Counsel appearing for
10. the respondent countered aforesaid submissions and urged that there was ample jurisdiction with the Family Court to grant interim maintenance during pendency of proceedings underSection 7 of the said Act. According to him, under Section 12(1) of the said Act, the Court hadwp4897.14.odt 5/10 power to make an order for "protection of the person" of the minor and, therefore, granting interim maintenance was one of the ways in which the minor could be protected. He further submitted that even the provisions of Section 7 of the Family Courts Act,1986 empower the Family Court to grant interim maintenance. He submitted that considering the interest of the minors the Court deciding proceedings under Section 7 of the said Act had ample power to grant interim maintenance. According to him, the interpretation of the provisions as suggested by the learned Counsel for the petitioner were restrictive in nature. To support his submissions, the learned Counsel placed reliance on the judgment of Karnataka High Court inSyed Rahamath Masood vs. Sarvath Jabeen (Writ Petition No.28449/2012 (GM-FC)) decided on 29-7-2013 in which an order passed by the Family Court granting interim maintenance underSection 12 of the said Act was maintained by the High Court. He also relied upon decision inKhurshid Gauhar vs. Siddiqunnisa AIR 1986 Allahabad 314 to urge that provisions of Section 12of the said Act have to be interpreted in a manner to subserve the purpose sought to be achieved.
Even otherwise, it was submitted that the amount of maintenance as granted was just and proper. The amounts granted in the other proceedings had been duly taken into consideration. He, therefore, submitted that there was no reason to interfere with said order. He also supported the order of granting visitation rights and said that time granted was reasonable in the facts of the case.
11. I have given careful consideration to the aforesaid wp4897.14.odt 6/10 submissions. I have also gone through the material placed on record. The aspect of jurisdiction of the Court to pass an interim order for grant of maintenance during pendency of proceedings under Section 7 of the said Act is required to be considered at the outset. Under Section 7 of the said Act, power has been conferred on the Court to make an order as to guardianship after being satisfied that the same would be for the welfare of the minor. The provisions of Section 12 of the said Act grant power to make an interlocutory order in the matter of production of the minor and interim protection of person and property of the minor. Section 12(1) of the said Act reads thus:
"12. Power to make interlocutory order for production of minor and interim protection of person and property.--(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper."
12. Under the said Act, it is the welfare of the minor that has been granted prime importance. It is the duty of the Court while exercising powers thereunder to be satisfied that any order passed by it is for the welfare of the minor.
In Gayatri Bajaj Vs. Jiten Bhalla, (2012) 12 SCC 478, the Supreme Court in paragraph 7 observed thus:
"7. In a matter relating to the custody of children the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Even the statutes, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 make it wp4897.14.odt 7/10 clear that the welfare of the child is a predominant consideration. In a matter of this nature, particularly, when the father and mother are fighting their case without reference to the welfare of the child, a heavy duty is cast upon the court to exercise its discretion judiciously bearing in mind the welfare of the child as the paramount consideration."
Under Section 12(1) of the said Act, the Court is empowered to make an interlocutory order so as to protect the person or property of the minor as it thinks fit. While considering an application for appointment of guardian, if it is found at an interlocutory stage that the welfare of the minor requires an amount be made available for being paid to the minor with a view to protect the person of the minor and his/her interests, such power would be available with the Court. Provisions of Section 12(1) of the said Act will have to be construed in a manner that would protect the person of the minor and if for such purpose grant of interim maintenance is warranted, the Court would be empowered in that regard. The Allahabad High Court in Khurshid Grover (supra) has rightly observed that provisions of Section 12(1) of the said Act are of wide amplitude and no restrictive meaning should be given to said provisions. The welfare of the minor being the paramount consideration, the power to grant interim maintenance will have to be read in aforesaid provisions. Moreover, during pendency of proceedings when it is brought to the notice of the Court that the welfare of the minor requires to be taken care of by directing one party to pay an amount of interim maintenance, such power can surely be exercised in the facts of the case. The decision of the Karnataka High Court in Syed Rahamat Masud (supra) has been reliedwp4897.14.odt 8/10 upon in that regard.
13. It was submitted by the learned Counsel for the petitioner that by seeking to amend the provisions of the said Act and inserting a provision for grant of maintenance, the same implied that such power is absent in the said Act. Said submission cannot be accepted. Merely because by amending the said Act a provision for payment of maintenance is sought to be made, the same does not mean that the Courts had no power prior to such amendment to award interim maintenance. In fact, by the proposed amendment, the power to grant interim maintenance is sought to be specifically granted in place of such implied power that is available with the Court. What is otherwise implied is sought to be made obvious. Considering the object of the said Act and the settled position of law that welfare of the minor is the paramount consideration, the power to grant interim maintenance has to be read in the powers conferred by Section 12(1) of the said Act. The provisions of the said Act as proposed to be amended can at the highest be treated as making the aspect of payment of interim maintenance explicit which power is otherwise obvious under Section 12(1) of the said Act.
14. It is to be noted that the present proceedings under Section 7 of the said Act are being entertained by the Family Court. Under Section 7(1)(a) of the Family Courts Act, 1984 (for short, the Act of 1984) the Family Court exercises all jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of proceedings, inter alia as to proceedings in relation to wp4897.14.odt 9/10 guardianship of the person or custody of or access to any minor. Under Section 10(1) of the Act of 1984, the Family Court is deemed to be a civil Court and provisions of the Code of Civil Procedure, 1908 are applicable to the proceedings before it. Therefore, in an appropriate case before it, the Family Court in exercise of its inherent powers under Section 151 of the Code can even otherwise direct payment of interim maintenance to the minor child in proceedings under Section 7 of the said Act.
15. Submission of the learned Counsel for the petitioner that as interim maintenance was being paid in proceedings under the Domestic Violence Act, 2005 the same need not have been directed in the present proceedings also cannot be accepted. While determining the amount of interim maintenance, the Court has taken said aspect into consideration and has thereafter awarded a sum of Rs.5000/- each per month to the minors. In the facts of the present case and prima facie, considering the standard of living of the parties, it cannot be said that said amount is in excess of the requirements. Similarly, as regards payment of Rs.33,00,000/- by the petitioner as alleged, the same is a disputed question which cannot be gone into at this stage. After the parties lead evidence before the Family Court, said aspect can be duly considered while passing final orders. The decision relied upon in the case of Alok Kumar Jain (supra) is clearly distinguishable on facts.
16. As regards visitation rights, it is to be noted that the learned Judge of the Family Court while exercising discretion has found it fit to grant fortnightly access which duration has been gradually increased. The wp4897.14.odt 10/10 manner in which said access has been granted cannot be said to be illegal or against the interests of the minors. As noted above, it is the welfare of the children that has to be given prime importance and after taking the same into account, there is no warrant to interfere with the exercise of said discretion. Moreover, it is stated that proceedings before the Family Court are at the stage of recording evidence and hence, it is not found necessary to interfere with the order granting visitation rights at this interlocutory stage.
17. ig In the light of aforesaid discussion, no case has been made out to warrant interference in writ jurisdiction. In absence of any jurisdictional error, the writ petition is liable to be dismissed. The same is accordingly dismissed. Rule stands discharged with no order as to costs.
JUDGE //MULEY//
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