AKHTAR BEGUM Vs. JAMSHED MUNIR

JUDGEMENT

(1.) This revision petition is directed against an order dated January 21, 1978 passed by Shri S. P. Singh Chaudhary, Guardian Judge, Delhi, dismissing the petitioner's application under Section 12 of the Guardians and Wards Act, 1890.

(2.) The petitioner and the respondent are Sunni Muslims governed by the Hanafi Law of Sunni Muslims. They were married at Delhi (claimed by the petitioner as her home town) in June, 1954 according to the rites of their personal law. After marriage the parties resided at Aligarh. Two children were born out of the wedlock, a son, named Jahangir, now aged about 12 years and a daughter, named Parah, now aged about 7/8 years. Certain differences are said to have arisen between the petitioner and the respondent with the result that the petitioner came away to Delhi in 1976. Subsequently, Farah also came to stay with her at Delhi. In March/April, 1977, it is said, the petitioner received letters and representations from her son, Jahangir, and others which forced her to send Farah to Aligarh where the respondent is staying. The respondent divorsed the petitioner by a letter dated October 30, 1977. The petitioner claimed the custody of her daughter Farah but it was denied to her by the respondent. This led to her filing a petition under Section 25 of the Guardians and Wards Act, hereinafter referred to as the Act, in the Court at Delhi. That petition has been registered as Guardianship Case No. 34 of 1977. The petitioner also filed an application under Section 12 of the Act. Both these have been opposed by the respondent. By the impugned order the petitioner's application under Section 12 of the Act has been disposed of. It has been dismissed except for a direction that the respondent is to produce the minor Farah in court on every first Friday of the month, if it be not a holiday, for an interview with her mother, the petitioner, in court between the hours of 2.30 P.M. and 3.30 P.M. The petitioner assails the said order.

(3.) The question that arises for consideration in the present case is whether the High Court can interfere with the impugned order under Section 115 of the Code of Civil Procedure. There is nothing specific in the Act, one way or the other, making the provisions of the Code of Civil Procedure applicable or .staling that the same would not be applicable to proceedings under the Act. Certain orders have been made appealable to the High Court by Section 47 of the Act. Therefore, the court which passed the impugned order is subject to the appellate control of the High Court. In that view of the matter even if a revision strictly speaking does not lie under Section 115 of the Code this court could exercise supervisory jurisdiction under Article 227 of the Constitution of India. This point as such was not raised by either party and so, it is not necessary to decide it. Whether it be under Section 115 of the Code or Article 227 of the Constitution if the impugned order can be interfered with in law, this court would have the jurisdiction to do so. Before me the case was argued as if Section 115 of the Code was applicable. All that was said was that the High Court should not interfere with the impugned order keeping in view the law with regard to interference in revision under Section 115 of the Code.