Vembadian Mani vs Sivagami

Srinivasan, J.—This suo motu civil revision petition is against an order dated 4.10.1994 in H.M.O.P. No. 65 of 1994 in M.C. No. 71 of

1994 on the file of the Family Court, Madurai. This is a suo motu revision in exercise of the powers of this Court under Article 227 of the

Constitution of Indian against an extraordinary interim order passed by the Family Court in conciliation proceedings in H.M.O.P. No. 65 of 1994

under Hindu Marriage Act and M.C. No. 71 of 1994 u/s 125 of the Code of Criminal Procedure.

The facts necessary for the purpose of this order are that Vembadian Mani has filed H.M.O.P. No. 65 of 1994 against his wife Sivakami for

divorce on the ground of cruelty u/s 13(1)(ia)(ib) of the Hindu Marriage Act. It is not necessary to refer to the allegations made by him in the

original petition. The petition was originally filed in the Sub Court, Madurai and after the Constitution of the Family Court, it was transferred

administratively to the file of the Family Court. M.C. No. 71 of 1994 is filed by Sivakami, the wife for maintenance u/s 125 of the Code of

Criminal Procedure along with her minor children. It appears that the said Sivakami made a complaint to the Family Court that her husband was

living with one Chitra and she is preventing her from leading a peaceful and happy marital life with her husband. When the matter came up for

hearing, the Family Court directed the original petitioner/husband to bring the said Chitra to Court on 4.10.1994. On 4.10.1994, the Family Court

recorded the deposition of the husband. On the same day, the Family Court recorded this deposition of the said Chitra aged about 25 without

specifying whether she is a witness for the petitioner before that Court or for the respondent. The said Chitra has deposed that she is staying with

the owner of No. 33, Vaigai Vadagarai since 20.11.1993 and that she knows tailoring. She has stated that her parents are Hying in Mehaboob

Palayam and as they wanted her to indulge in immoral activities, she left their house and took shelter under die petitioner in the original petition. The

owner of the house in which the petitioner in the original petition lives is having sewing machines and her daughter is also doing tailoring work. The

Court put a question to her whether it is not wrong on her part to leave her parents and stay in the house of the petitioner, she replied that as her

parents wanted her to indulge in immoral activities and as she wanted to live with self-respect, she came and took shelter under the petitioner. She

has also deposed that her parents have not come in search of her, nor her brothers and sisters have come to meet her. She had studied upto Plus

Two course.

After recording the said deposition, the Family Court passed an order directing the said Chitra to be sent to the Protective Home at

Chokkikulam, Madurai for a period of six months during which period, she should be given training in tailoring and be permitted to appear in the

examination for Diploma in Tailoring to be held in March, 1995. The Court also directed that the said Chitra should be in the custody of the

Matron of the Home for a period of six months and the petitioner in the original petition should not go and visit the said Chitra without the prior

permission of the Court.

The reasoning of the Family Court is in the following words:

''At this juncture, I though that in the interest, peace and harmony in the family of the petitioner and the respondent and in the interest of the young

female, to see that she is able to maintain herself out of her own earning and to avoid any danger to her morality and for safe custody, I direct that

Chitra be sent to the Protective Home, Chokkikulam, Madurai for a period of six months....

Though the Family Court had apparently good intention in passing the said order, it had absolutely no jurisdiction to pass such an order with

respect to the person who was a major and who was not even a party to the litigation before the Court. There was no Us between the said Chitra

and any of the parties to the original petition.

It is seen from the records that the Family Court issued a warrant of detention addressed to the Superintendent, Government Vigilance Home,

Chokkikulam, Madurai authorising the addressee to detain the said Chitra in the Home for a period of six months for safe custody and to avoid

moral danger. It is also specified in the said warrant that no visitor can be allowed to meet her and speak with her. The warrant has been signed by

the Judge of the Family Court herself. At the bottom of the copy of the warrant, a Police Constable has made an endorsement as follows:

Madam, x x x x x

xxxxxxxxxxxxxx

(I have received the detenu, warrant and the letter mentioned herein)

The said warrant was accompanied by a covering letter written by the Judge of the Family Court to the Matron, Protective Home, Chokkikulam,

Madurai

The said Chitra presented a petition on 11.10.1994 u/s 151 of the CPC praying for withdrawal of the detention order passed against her or to

refer the matter to the High Court for getting a concrete opinion and direction. The petition was taken on file as I.A. No. 24 of 1994 and notice

was ordered to the other side viz., Sivakami returnable by 25.10.1994. On 28.10.1994, Sivakami had filed a counter opposing the withdrawal of

the detention order and the matter was adjourned to 28.11.1994. On 28.11.1994 the petition was further adjourned to 23.12.1994 without any

reason being disclosed on record.

In the meanwhile, one Mrs. Fouzia Kabeer, Advocate/Social Worker filed an affidavit on 11.10.1994 in the Family Court stating that the place

in which Chitra is detained is not congenial for her moral safety and the custody may be changed. She had stated that custody of the girl may be

handed over to her and she will take care of her and produce her as and when the Court directed such production. The Family Court treated the

affidavit of the said Advocate as a review petition and passed an order on 11.10.1994 itself entrusting custody of the girl to the said Advocate.

The Court directed the Advocate to take all responsibilities to keep the girl in safe custody for a period of six months from 4.10.1994. The Court

added that the representation regarding the goodness or safe custody be once in a month produced in Court on the 15th of every month. Pursuant

to the said order, the Advocate/Social Worker took charge of the girl from the Protective Home, on 11.10.1994 itself.

The petitioner in the original petition sent a representation on 5.10.1994 to the Registrar of this Court referring to the order of detention passed

by the Family Court and requesting the petition to be treated as habeas corpus petition. That was received by this Court on 6.10.1994 and on the

direction of the Hon''ble Chief Justice, it was placed before me. I directed the Registrar to immediately call for a report from the Family Court. A

communication was issued by this Court on 7.10.1994. Though the Family Court received it on 11.10.1994, it chose to forward its report only in

D.No. 386/94 dated 22.11.1994. The report did not contain any explanation as to why the Family Court took such a long time to send the same

to this Court. That report was received by this Court on 28.11.1994. It was placed before me on 13.12.1994 by the Registry. I, passed an order

on 15.12.1994 requesting the Registrar to instruct the Family Court by phone immediately to send all the records in H.M.O.P. No. 65 of 1994,

H.M.O.P. No. 212 of 1994, I.A. No. 24 of 1994 and M.C. No. 71 of 1994 and all connected as well as interlocutory proceedings therein by

special messenger to this Court so as to reach this Court by 16.12.1994. Accordingly, the records were sent through the Sheristadar of that Court

and received by this Court on 16.12.1994. After perusing all the records, I have decided to exercise my powers under Article 227 of the

Constitution of India and initiate the suo motu revision proceedings.

I find H.M.O.P. No. 212 of 1994 is a petition filed by the wife Sivakami for restitution of conjugal rights. It is also seen from the records that

the petitioner in O.P. No. 65 of 1994 has filed a petition before the Family Court on 17.11.1994 for releasing the girl Chitra from the custody of

Mrs. Fouzia Kabeer. That application has been numbered as I.A.No. 45 of 1994. Notice was ordered to the said Advocate returnable by

30.11.1994. On 30.11.1994, the learned Judge was on leave, though both parties were present as seen from the endorsement made by the

Sheristadar on the docket. The matter was posted to 5.12.1994. On 5.12.1994, the learned Judge has recorded that counter was filed and

directed it to be called on 23.12.1994 for orders. Thus, the Family Court has posted LA. No. 24 of 1994 filed by Chitra and LA. No. 45 of 1994

filed by the petitioner in the original petition to 23.12.1994.

I must also mention that the petitioner in the original petition filed in this Court a habeas corpus petition on 26.10.1994 which was taken on file

as H.CP.No. 1605 of 1994. The prayer therein was to direct the Advocate Mrs. Fouzia Kabeer and the Commissioner of Police, Madurai to

produce the girl Chitra before this Court and set her at liberty. By order dated 31.10.1994, a Division Bench of this Court dismissed the petition

holding that the custody of the girl with the Advocate was in pursuance of an order passed by the Family Court and as such, there was no question

of illegal custody or wrongful confinement. The Bench said that if the petitioner was aggrieved, his remedy was elsewhere and not through a habeas

corpus petition. Consequently, the petition was dismissed.

The girl Chitra wrote an inland letter on 3.12.1994 to the Hon''ble Chief Justice of this Court. That was forwarded to P.I.L. Cell (Public

Interest Litigation Cell) by order dated 5.12.1994 on which date, it was received by the Court. The learned Judge in charge of P.I.L. Cell, Mr.

Justice Arunachalam, passed an order on 6.12.1994 calling for a report from the Family Court. Accordingly, a communication was sent to the

Family Court calling for a report. It is stated by the learned Judge of the Family Court that she has in turn called for a report from the Advocate

Mrs. Fouzia Kabeer and on receipt of the same, she would forward her detailed report to this Court.

Having regard to the delay at every stage of this matter, I am of the view that orders should be passed immediately by this Court so as to

render justice to the girl Chitra against whom an order of detention has been passed by the Family Court without any jurisdiction therefor. Even if

the order has been made with all good intentions, it is wholly illegal and unsustainable. It is against all the principles known to law and in particular it

is violative of Article 19 of the Constitution of India. The girl Chitra is aged about 25 and the Family Court is not entitled to pass an order of

detention against her even if she is living with the petitioner in the original petition as alleged by his wife.

I am of the opinion that there is no necessity in this matter to issue notice to any of the parties to the original petition or the Advocate to whom

custody has been entrusted by the Family Court pursuant to the order illegally passed by it. It is not at the instance of any particular party the Court

has passed the order of detention. It is a suo motu order and it can be set aside without any notice to any person. In particular, the person affected

by the order viz., Miss Chitra has herself filed an application before the Family Court for withdrawing the order of detention and also sent a letter

to the Hon''ble Chief Justice of this Court praying for her release. The respondent in the original petition viz., Sivakami cannot raise any contention

in support of the order of detention; nor can the Advocate Mrs. Fouzia Kabeer have any say in this matter. She has no right to seek detention of

Mrs. Fouzia Kabeer have any say in this matter. She has no right to seek detention of Miss Chitra. The petitioner in the original petition has already

sought for the release of the girl. In those circumstances, I have chosen to pass this order without notice to any of the parties to the original petition

as I am firmly of the opinion that no such notice is necessary to them as there will be no infraction of their rights.

In the result, the order passed by the Family Court on 4.10.1994 in H.M.O. No. 65 of 1994 and M.C. No. 71 of 1994 on its file directing the

detention of Miss J. Chitra is set aside. The subsequent order passed on 11.10.1994 in review interlocutory application No. 25 of 1994 entrusting

custody of the girl to Mrs. Fouzia Kabeer is also consequentially set aside. The girl Chitra is set at liberty. She is free to go anywhere she likes.

This suo motu revision is allowed on the above terms. The Family Court shall proceed to dispose of H.M.O.P. No. 212 of 1994, and M.C.

No. 71 of 1994 in accordance with law.

The Family Court is directed to enter on record this order of mine and make and entry that LA. No. 24 of 1994 and LA. No. 45 of 1994 on

its file have become infructuous in view of the order of this Court cancelling the order of detention and setting the girl Chitra at liberty.