1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner Smt. Shahnaz Shaharyari alias Shirin Shaharyari takes exception to the execution proceedings pending before the Family Court at Bombay, being Regular Darkhast No. 186 of 1993 in M. J. Petition, No. A-702 of 1990, and alternatively prayed for transfer of the proceedings to a competent Court at Nagpur to try along with other pending proceedings.
2. During the course of arguments, I felt that the unfortunate couple is living separate and fighting in the Court of law for their children. The marriage being a social dutytowards the family and community, I persuaded the learned counsel to call both, the spouses and ask them to settle the matter amicably. Both the learned counsels of the parties were of the same view and, therefore, the spouses were called and persuaded by me and the learned counsels to make the marriage a success by compromise and adjustment. The persuation of we all bore no fruits and, therefore, I proceeded to hear the matter.
3. The facts of the case, in brief, which are relevant for the disposal of this petition, are asfollows:
The petitioner is a citizen of Iran and Zoroastrian by faith. The, petitioner was residing at Iran with her aged mother. The respondent Dr. Vijay Gawande was on deputation by the Government of India to Iran and during the course of his stay at Iran, the petitioner and respondent developed an acquaintance. Ultimately both of them got married at Tehran on 18012-1982 according to Zoroastrian customs before 'the Marriage Notary Public Office No. 43-Tehran'.
4. The petitioner and the respondent returned to India some time in 1982. The petitioner came to India after getting tourist visa on 3-12-1982. During her stay in India, she used to visit Tehran to see her ailing mother, by extending her visa from time to time. Out of the wedlock, they were blessed with two children, first a son by name Jay born on 28-5-1984, and second, a daughter by name Leena born on 19-2-1986. The petitioner and the, respondent were staying at Bombay till 1990, the respondent being attached to Mahatma Gandhi Hospital, Bombay, as Orthopaedic Surgeon.
5. Between 1984 to 1990 the relations between the petitioner and the respondent came to be strained. According to both the spouses, they ill-treated each other. According to the petitioner, the respondent-husband started harassing her and treated her in a most inhuman manner, forcing her to lead a life in seclusion. The petitioner left the abode of the respondent in 1990 and for some days stayed in her in-laws' house at Nagpur. However, since 1992 she is residing with her children in a rented house and got admitted the childrenfor education is Saraswati High School, Nagpur.
6. The petitioner contended that white she was residing with her husband -- the respondent, at Bombay, the harassment being severe, she was constrained to report the matter to the police at the hands of the respondent. It is alleged by the petitioner that the respondent per force took her signature on some papers, subsequently it came to be revealed that he approached the Family Court for dissolution of marriage without her consent on the basis of some papers. According to her, when a decree for divorce was passed by the Family Court, Bombay, she was not in India.
7. The petitioner further alleged that for getting the custody of the children, the respondent took steps so as to get the tourist visa of the petitioner cancelled and made several complaints to the Ministry, Home Affairs, and as a result thereof the petitioner was served with an order of the Home Ministry, directing her to return to Iran. As she was not in a position to go back to Iran in view of the pendency of litigations and also in the interest of the children, the petitioner approached this Court in Criminal Writ Petition No. 49 of 1993 for extension of visa and accordingly time was granted to her to stay in India from time to time.
8. The respondent had instituted a suit before the District Judge, Nagpur, under Sections 6 and 8 of the Hindu Minority and Guardianship Act read with Sections 17 and 25 of the Guardians and Wards Act, 1890. The suit bears No. 679 of 1992. The learned District Judge, Nagpur, passed a prohibitory order on 15-12-1992, prohibiting her not to remove the children out of the territorial jurisdiction of the Nagpur Court. The petitioner had in fact gone to Delhi along with the children for getting her visa renewed. Taking benefit of all these facts, the respondent in order to harass the petitioner filed a Contempt Petition No. 64 of 1993 in this Court and simultaneously filed a petition for a writ of Habeas Corpus, being Writ Petition No. 61 of 1993. The petitioner specifically stated that she had taken the children alongwith her to Delhi as she was unable to keep her children alone at Nagpur, She further submitted that she had already deposited the passport in compliance with the order passed by the Trial Court. Considering the grounds, this Court was pleased to drop the proceedings.
9. An ex parte order dated 15-12-1992 was vacated by the 8th Additional District Judge, Nagpur, by an order dated 28-4-1993, thereby permitting the petitioner to take the children out of the local jurisdiction of Nagpur Court. Since the order relating to custody of the children was passed by the competent Civil Court, Writ Petition No. 61 of 1993 for a writ of Habeas Corpus came to be disposed of by an order dated 15-6-1993.
10. The petitioner on 7-4-1993 institutedCivil Suit No. 674 of 1993 before the Civil Judge, Senior Division, Nagpur, inter alia, seeking a declaration that the decree fordivorce dated 20-11-1990 passed in M. J.Petition No. A-702/90 is null and void andnot binding on the petitioner. The petitioneralso instituted proceedings under Section 125 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Nagpur, being Criminal Complaint No. 26 of 1993, for grant of maintenance for herself and her children, since the respondent had stopped the payment of maintenance to the petitioner.
11. The respondent preferred Civil Revision Application No. 693 of 1993 in this Court, challenging the order passed by the 8th Additional District Judge, Nagpur dated 28-4-1993 in Misc. Civil Application No. 679 of 1992. After service of notice, the petitioner filed a pursis to the effect that she will not take the children i.e. Jay and Leena, to Iran, except with the leave of the District Court in case No. 679 of 1992 till the disposal of the matter, with liberty to move the trial Court as and when required. On the basis of this pursis, this Court disposed of the Civil Revision Application.
12. The petitioner submitted that having failed in all his attempts, in utter frustration and in order to harass the petitioner further, the respondent invented an ingeniousmethod of instituting the execution proceedings against the petitioner by filing Regular Darkhast No. 186 of 1993 in the disposal of matter before the Family Court at Bombay, on the ground that there is a breach of the terms of the compromise, praying that the respondent is entitled to the custody of the children; and that a decree be executed in his favour and necessary orders be issued under Order XXI, Rule 22 of the Code of Civil Procedure for grant of custody of the children to him. Hence this petition for issuance of prohibitory order for quashing and setting aside the execution proceedings in Regular Darkhast No. 186 of 1993, and alternatively for transfer of the proceedings to the competent Court at Nagpur to try the same along with other proceedings instituted by the respondent under the Guardians and Wards Act.
13. In the instant petition, the challenge is to the validity of the execution proceedings instituted by the respondent at Bombay, on two grounds, firstly the execution proceedings cannot be proceeded at Bombay and secondly that for the same relief, jurisdiction of two Courts cannot be invoked.
According to the learned counsel for the petitioner the thrust in the execution proceeding as also the proceeding instituted by the respondent before the District Judge, Nagpur, under sections 6 and 7 of the Hindu Minority and Guardianship Act read with Sections 17 and 25 of the Guardians and Wards Act are the breach of the terms of the consent decree. The relevant terms of the consent decree in M. J. Petition No. A-702 of 1990 are reproduced below :
(2) The respondent gives an undertaking to this Hon'ble Court that she will send Master Jay and Baby Leena to the petitioner for the period of four months in every year at her cost to India and these children shall remain with the petitioner for the period of four months i.e. during school vacation of four months every year.
(6) The respondent gives an undertaking to this Hon'ble Court that she will hand over the custody of Master Jay and Baby Leena to thepetitioner permanently in the event.
(a) The children do not desire to continue their education in Iran, OR
(b) The respondent is unable on take care of the children because of her ill-health, OR
(c) The respondent re-married, OR
(d) The children are ill-treated by the respondent.
(7) The respondent declares that she does not want to claim any maintenance from the petitioner for herself and for two children and gives an undertaking to this Hon'ble Court that she will not claim any maintenance for herself or for children from the petitioner in future. The respondent declares that she has her own property at Iran and also has her independent income at Iran and she will maintain herself and the two children from such income.'
14. It is, thus, crystal clear that the basis for seeking relief in the execution proceedings as also in Civil Suit No. 679 of 1992 before the District Judge Nagpur, are similar inasmuch as the petitioner is staying at Nagpur with her two children prosecuting their studies at Nagpur and having no independent source of income unable to go to Bombay, she is unable to engage the counsel at Bombay and to attend the Court. Secondly, she has already sought declaration in Civil Suit No. 674 of 1993, pending in the Court of the Civil Judge, Senior Division, Nagpur that the decree for divorce passed in M. J. Petition No. A-702 of 1990 dated 20-11-1990 is null and void and not binding on the petitioner. Considering the facts and circumstances and taking into consideration the financial position of the petitioner, the only course according to her is to get quashed and set aside the proceedings instituted by the respondent at Bombay.
The learned counsel for the petitioner further invited my attention to the case in Vincent Joseph Konath v. Jacintha Angela Vincent Konath, reported in : AIR1994Bom120 , and submitted that in view of the decision even the Family Court has no jurisdiction topass a decree of divorce under the IndianDivorce Act, 1869.
15. The learned counsel further submitted that when therein a suit filed by the respondent to declare him as a permanent guardian of the children and get their custody in the Court of the District Judge, Nagpur, to initiate similar proceeding on the same ground instituted at Bombay is nothing but to further harass the wife, so that she may be forced to leave India. Reliance has been placed on the decision in Ramchandra, Ganpat Shinde v. State of Maharashtra, : AIR1994SC1673 , Placitum 'B'. Their Lordships observed-
'Court's order obtained by collusion and fraud -- writ petition got filed before High Court through henchmen with a format of legal process but on the very date of admission, consent minutes contrary to statutory mandates, put forth personally and court's order obtained on that basis.'
Their Lordships held -
'Process of the Court abused by collusion and fraud and hence order liable to be set aside.'
16. The alternative relief sought is to transfer the execution proceeding pending before the Family Court, Bombay, to the Court of the District Judge, Nagpur, where the proceedings for declaration of permanent guardianship and custody of the children are pending.
Shri Bobde, the learned counsel for the respondent, specifically submitted that the respondent is ready to withdraw the proceeding instituted in the Court of the District Judge, Nagpur in Civil Suit No. 679 of 1992, under Ss. 6 and 7 of the Hindu Minority and Guardianship Act read with Ss. 17 and 25 of the Guardians and Wards Act, 1890. The learned counsel invited my addition to the definition of 'the Court' in S. 4 of the Guardians and Wards Act, which reads as follows :
(5) 'the Court' means -
(a) the District Court having jurisdiction to entertain an application under this Act foran order appointing or declaring a person to be a guardian: or
(b) where a guardian has been appointed or declared in pursuance of any application -
(i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under S. 4A, the Court of the officer to whom such proceeding has been transferred.'
Section 9 of the Guardians and Wards Act, 1890, deals with jurisdiction of the Court to entertain application S. 9(1) reads as under :
'9(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.'
It, thus, makes clear that an application in respect of the guardianship of the person of a minor requires to be filed, where the minor ordinarily resides. Thus, by no stretch of imagination, it could be said that the respondent has succumbed to the jurisdiction of the Nagpur Court. Statute provides that application for appointment of guardian be made where the minor ordinarily resides. In the instant case, the minors are residing at Nagpur and, therefore, the proceedings were instituted before the District Judge, Nagpur.
17. The learned counsel for the respondent successfully submitted that the provisions of S. 19 of the Family Courts Act, 1984, which provide specific remedy under Chapter V by way of appeal from every judgment or order to the High Court, both on facts and law, and without exhausting the remedy as provided under this statute, the proceedings instituted at Nagpur by the petitioner, challenging the order passed by the Family Court, ipso facto, the proceedings are not tenable. The petitioner is not entitled to file a civil suitfor declaration at Nagpur or invoke the jurisdiction of the Nagpur Court without setting aside the decree or order passed by the Family Court. Similarly, the petitioner cannot bring any hurdle or raise any objection to the execution of the decree, which is admittedly in force.
18. Shri Bobde, the learned counsel for the respondent, took me through various documents. The first document is 'Marriage Counsellor's Report' (Annexure R-3) which reads as under :
'I, Mrs. A. S. Purandare, Marriage Counsellor, appointed for the purpose of attempting reconciliation between the abovenamed parties, report as under :
I have interviewed both the parties individually and jointly. In my opinion, reconciliation is not possible between them.'
The second document is Annexure R-3-1, which is the copy of the Roznama of the petition presented before the Family Court, Bombay. This petition for divorce was filed under S. 18 of the Foreign Marriage Act,1969; S. 27(1)(b) and S. 27(1)(d) of the SpecialMarriage Act, 1954. The petition was presented on 25-5-1990 and registered on the same day.
I have examined the Roznama of the Court of Shri J. A. Patil, 4th Family Court, Bombay at Bandra. The order-sheet dated 19-6-1990 reads us under :
'19-6-90. Before the Court. Both parties are present.
Exh. 3 -- Application by the respondent i.e. lady, taking the case on board (granted). Summons to the respondent is returned duly served.
Exh. 4 -- Report of the Marriage Counsellor is received (reconciliation is not possible).
Exh. 5 -- Application by the respondent stating that she does not want to contest the petition.
Adjourned for hearing to 5-7-90.'
The order-sheet dated -13-7-1990 reads as under :
'13-7-90. Before the Court. Both parties are present.
Exh. 6 -- Application filed by the respondent for matter is taken on board.
Exh. 7 -- Consent terms filed by the parties are read and recorded.
Adjourned for hearing to 20-2-90.
The order-sheet dated 20-11-1990 reads as under :
'20-11-90. Before the Court. The petitioner is present. The respondent is absent.
Exh. 10 -- Judgment declared in open Court.
'The petition is decreed.
The marriage between the petitioner and the respondent solemnised on 18-10-1982 at Tehran in Iran is hereby dissolved. The consent terms Exh. 7 be incorporated in the decree.
Parties to bear their respective costs.'
Exh. 11 -- Decree be drawn accordingly. Copy of the operative part of order is given to the petitioner.
Proceeding closed.'
19. The petitioner not only levelled the allegations against the respondent that he has per force obtained her signature on the alleged divorce petition as also on other documents, but she has levelled serious allegations against the 4th Family Court, Bombay. The respondent has denied all the allegations levelled by the petitioner against him. According to him, the allegations are totally false and imaginary. The learned counsel for the respondent rightly submitted that the matters of judicial record are unquestionable and they arc not open to doubt. The learned counsel has substantiated his submission by the observations, in the case of the State of Maharashtra v. Ramdas Shrinivas Nayak, reported in : 1982CriLJ1581 . In Para 4, Their Lordships observed (at p. 1251) :
'We are afraid that we cannot launch into an inquiry as to what transpired in the HighCourt. It is simply not done. Public policy bars us. Judicial Decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into arena. Judgments cannot be treated as mere counters in the game of litigation, We are bound to accept the statement of the Judges recorded in their judgments, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at Bar or by affidavit and other evidence.'
20. M. J. Petition No. A-702 of 1990 was filed for a decree of divorce under Sec. 18 of the Foreign Marriage Act, 1969 read with S. 27(1) (b) and (d) of the Special Marriage Act, 1954, Section 27(1) (b) and (d) reads as under :
'27(1) Subject to the provisions of this Act and to the rule made thereunder, a petition for divorce may be presented to the district Court either by the husband or the wife on the ground that the respondent -
(a) *** *** *** (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or
(c) *** *** ***(d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) *** *** ***
Section 18 of the Foreign Marriage Act, 1969, reads as under :
'18(1) Subject to the other provisions contained in this section, the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954 (43 of 1954), shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act.
Explanation : In its application to the marriages referred to in this sub-section, S. 24 of the Special Marriage Act, 1954 (43 of1954), shall be subject to the followingmodifications, namely:--
(i) the reference in sub-section (1) thereof clauses (a), (b), (c) and (d) of S. 4 of that Act shall be construed as a reference to clauses (a), (b), (c) and (d) respectively of S. 4 of this Act,and
(ii) nothing contained in S. 24 aforesaid shall apply to any marriage:
(a) which is not solemnized under this Act; or
(b) which is deemed to be solemnized under this Act by reason of the provisions containedin S. 17:--
Provided that the registration of any such marriage as is referred to in sub-clause (b) may be declared to be of no effect if the registration was in contravention of sub-sec. (2) of S. 17.(2) Every petition for relief under Chapter V or VI of the Special Marriage Act, 1954 (43 of 1954), as made applicable to the marriages referred to in sub-section (1), shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction.
(a) the respondent is residing at the time of the presentation of the petition; or
(b) the husband and wife last resides together; or
(c) the petitioner is residing at the time of the presentation of the petition provided that the respondent is at that time residing outside India.
Explanation:-- In this section 'District Court' has the same meaning as in the Special Marriage Act, 1954 (43 of 1954).
(3) Nothing contained in this section shall authorise any Court -
(a) to make any decree of dissolution of marriage, except where -
(i) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or
(ii) the petitioner being the wife was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition;
(b) to make any decree annulling a voidable marriage, except where -
(i) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or
(ii) the marriage was solemnized under this Act and the petitioner, being the wife, has been ordinarily resident in India for a period of three years immediately preceding the presentation of the petition.
(c) to make any decree of nullity or marriage in respect of a void marriage, except where -
(i) either of the parties to the marriage is domiciled in India at the time of the presentation of the petition; or
(ii) the marriage was solemnized under this Act and the petitioner is residing in India at the time of the presentation of the petition;
(d) to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954 (43 of 1954), except where the petitioner is residing in India at the time of the presentation of the petition.
(4) Nothing contained in sub-sec. (1) shall authorise any Court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it. (whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954) or otherwise) is provided for under any other law for the time being in force.'
This section makes it clear that in the marriage solemnized under this Act either in India or in foreign country, at least one of the spouses must be a resident of India. In the instant case, the respondent is the Indian citizen while the petitioner is a resident of Iran.
21. The provisions of the Indian Divorce Act, 1869, are not applicable to the instantcase, because S. 2 of the Indian Divorce Act, 1869, provides that the Court shall have jurisdiction to grant reliefs under the Act, where the petitioner and the respondent profess Christian religion and where the parties to the marriage are domiciled in India at the time when the petition came to be presented. Thus, to attract the provisions of the Indian Divorce Act, 1869, the Indian spouse can only dissolve the marriage between the spouses if both the spouses are Christian by religion and they are residing in India at the time of presentation of the petition. It is thus clear that the provisions of the Indian Divorce Act, 1869 are not applicable to the instant case, as neither of the party is Christian. In view of this, the case reported in : AIR1994Bom120 (cited supra) is not applicable in the instant case. The learned counsel for the petitioner subsequently conceded that this citation is not applicable to the instant case.
22. The present case governs with the provisions of S. 18 of the Foreign Marriage Act, 1969, and S. 27 of the Special Marriage Act, 1954. Section 31 of the Special Marriage Act, 1954, deals with jurisdiction and procedure of the Court. In accordance with the provisions of S.39, the District Court has jurisdiction to decide the matters as provided under Chapters V and VI of the Act. Chapter V deals with restitution of conjugal rights and judicial separation, while Chapter VI deals with nullity of marriage and divorce. Section 7 of the Family Courts Act, 1984, deals with jurisdiction of the Family Court. Relevant provision applicable to the facts of the instant case is Sec. 7(1), which is as follows :
'7(1) Subject to the other provisions of this Act, a Family Court shall :--
(a) have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purpose of exercising such jurisdiction under such law to bea District Court, or as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation -- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) to (f) *** *** ***
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.'
The Hindu Minority and Guardianship Act, 1956, as also the Guardians and Wards Act, 1890, are general Acts and Central Acts. The Family Courts Act, 1984, though a Central Act, is a special Act and thereby will have a precedence over other Acts. Thus, 'Family Court' means a Family Court established under S. 3 of the Act. It needs mention that Family Courts are established with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters concerned therewith.
23. Shri Bobde, the learned counsel for the respondent, rightly stated that even if the Family Court has no jurisdiction to pass a decree in matrimonial matters, surely in view of the enactment of the Family Courts Act, 1984, the proceedings will have to be challenged only at Bombay and not at Nagpur. The facts and circumstances of the instant case clearly reveals the intention of the petitioner. She seems to be interested only in any how obtaining money for her maintenance without severing matrimonial relation with the respondent but at the same time she does not want to allow the children to stay with their father as if the latter has nothing to do with them and as if he has not played his role to shower fatherly love upon the children and to bring up them properly.
24. Thus, it is clear from the above observations and citations that the matters of judicial record are unquestionable in as much as that they are not open to doubt. The decree passed by the Family Court and consent terms incorporated therein are very much in force till date and cannot be quashed as sought by the petitioners. As rightly submitted by the counsel for respondent even if the Family Court has no jurisdiction to pass decree in matrimonial matters, the concerned proceedings will have to be surely challenged at Bombay and not at Nagpur at all, and, therefore, the petitioner's prayer of transferring the proceeding's in the Execution of Family Court cannot be accepted. In view of the provisions discussed above, I cannot concede any of the reliefs prayed for by the petitioner.
25. In the result, the petition is dismissed with no order as to costs. Both of the reliefs sought by the petitioner are rejected.
26. Petition dismissed.