D.K. Seth, J.
1. An application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20th March 1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12th May 1997. On 25th April 1997, both the learned counsel pointed out that the matter was fixed on 24th April, 1997 but by mistake the date was noted as 12th May, 1997 in the order dated 9th April, 1997. Accordingly the matter was fixed on 9th May, 1997 instead of 12th May, 1997 by an order dated 25th April, i 997 by the consent of the parties for the reasons recorded in the order dated 25th April, 1997.
2. On 9th May 1997, an application for amendment was tiled in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24th April, 1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20th March, 1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on day's list for hearing together with the application for amendment and the application for vacating the interim order.
3. Since the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.
4. The opposite party No. 2 Arvind Kumar and the petitioner Arun Lata were married on 4th May, 1980. Arvind Kumar is a lawyer practising at Bulandshahr. He instituted a suit for divorce being Divorce petition No. 208 of 1981 in the Court of Civil Judge, Bulandshahr on 23rd July, 1981. A child out of the wedlock was born on 15th March, 1982. The suit for Divorce was decreed ex parte on 5th May, 1982 (Annexure '1'). In the said suit, no interim order was passed with regard to the custody or maintenance of the child. Neither any provision with regard thereto was incorporated in the decree. On 23rd May, 1994, Arvind Kumar filed an application under the Guardians and Wards Act for the custody of the child. The same was registered as Misc. Case No. 22 of 1984. Arvind Kumar had also filed Case No. 440 of 1984 for certain other reliefs against Prakash Rani and others including Arun Lata before the Special Judicial Magistrate, Bulandshahr. At this stage, Arun Lata sought for transfer of respective cases from Bulandshahr to Delhi, on which the Hon'ble Supreme Court was pleased to issue notice on Arvind by an order dated 11th July, 1984 (Annexure '2'). By an order dated 20th February, 1985 (Annexure '3'), the Transfer Petition was disposed of. In the said order, it was recorded that both the parties had agreed that all the cases filed by them against each other would forthwith be withdrawn and that Arvind Kumar will pay Rs. 200/- per month regularly for maintenance of their only son with effect from March 1, 1985. Accordingly the parties had undertaken to withdraw all the cases. In terms of the said order dated 20th February 1985 both case No. 440 of 1984 and Misc. No. 22 of 1984 were withdrawn by Arvind Kumar.
5. Subsequently on 30th September, .1991, Arvind Kumar filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act against Arun Lata for the custody of the said child. And 20th October, 1991 was the date fixed in the said Case No. 200 of 1991. She sent a telegram on 21st October 1991 (Annexures '4' and''5')intimating the Court that she had fallen ill and, therefore, the case may be adjourned. The said Case No. 200 of 1991 was ultimately allowed ex parte by an order dated 26th October, 1991 (Annexure '6'). Arun Lata filed Misc. Case No. 239 of 1991 for setting aside the ex parte order dated 26th October, 1991. On account of non-appearance of her counsel, Misc. Case No. 239 of 1991 was dismissed by an order dated 20th, November, 1992 (Annexure '7'). Arun Lata filed Misc. Case No. 134 of 1992 for restoration of Misc. Case No. 239 of 1991. By an order dated 14th May, 1993, on account of non-appearance of Arun Lata's counsel. Misc. Case No. 134 of 1992 was dismissed for default. Arvind Kumar thereupon filed an application under Section 28-A for execution of the ex parte order dated 26th October, 1991. The same was registered as Execution Case No. 34 of 1993 in the Court of the Civil Judge, Bulandshahr. The said execution was allowed by an order dated 31st May, 1993 passed ex parte (Annexure '12'). In the said order, a direction was given to the Senior Superintendent of Police, Bulandshahr to provide police assistance for bringing the child and produce him in the Court on 5th July, 1993 for delivery of custody to Arvind Kumar. For compliance of the said order, 13th August, 1993 was fixed. Arun Lata has now filed this writ petition seeking to quash the orders dated 31st May 1993 and 26th October, 1991.
6. By an order dated 12th August, 1993 passed in the present writ petition, the operation of the order dated 31st May, 1993 was stayed till further orders. It is this order which has been sought to be vacated by means of the application for vacating the interim order by Mr. Govind Krishna appearing on behalf of Arvind Kumar.
7. By an application for amendment, the following amendment has been sought to be incorporated :
"1. That in the title of the petition, wherein it has been stated that writ petition under Article 226 of the Constitution of India, should be added as "under Articles 226/227 of the Constitution of India" be added;
2. That in the grounds after ground No. G the following ground be added :
"H. Because in view of the order of the Hon'ble Supreme Court dated 20-2-1985, it was not open to the respondent to file a petition for the custody of. Master Nipun'.
3. That in the prayer clause after prayer No. V the following prayer may be permitted to be added :
VI. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the order dated 20-6-1992 passed in Misc. Case No. 239 of 1991 and the orders dated 13-4-1992 and 14-5-1993;
VII. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the ex parte decree passed in Matrimonial Petition No. 208 of 1991;
VIII. To issue a writ, order or direction in the nature of mandamus directing the respondents not to give effects the orders dated 20-5-1992, 13-4-1992 and 14-5-1993."
8. Mr. Govind Krishna opposed the said amendment on the ground that the same having been made at such a belated stage, the amendment should not be allowed. He also contended that the amendment, if allowed, would not only change the complexion of the case made out by the petitioner, it would also change the whole nature and character of the proceedings. Mr. Kumar on the other hand, contended that amendment would neither change the complexion of the case nor would have the effect of changing the nature and character of the case. The situation is as such that the delay cannot stand in the way of allowing the amendment in the special facts and circumstances of the present case. Inasmuch as it is only another point of view on which the orders impugned could be assailed has been sought to be incorporated as ground. It is only in effect supplemental and are elaboration of the grounds already taken. The objection taken is technical since the order dated 26th October, 1991 has already been challenged. The other three orders dated 13th April, 1992, 20th may 1992 and 14th May, 1993 have been sought to be included by way of mere formalities. Therefore, the amendment should be allowed.
9. I have heard both the counsel on the question of amendment. The fact remains that it was the order dated 29th October, 1991 in execution whereof the order dated 31st May, 1993 was passed and these are the two principal orders on which the rights of the parties survive in favour of or against the one or the other. The other two orders dated 13th April, 1992 and 20th May, 1992 are the orders by which the applications for recalling the order dated 26th October, 1991 were dismissed for default. Therefore, those are only ancillary orders. In case the order dated 26th October, 1991 is set aside, then the said orders dated 13th April, 1992 and 20th May, 1992 would become redundant and/or non-est. Similarly if the order dated 26th October, 1991 is set aside, then again the ex-parte order and the execution thereof passed on 14th may, 1993 would similarly become redundant and non-est. These are pure technicalties. When the two principal orders have been challenged, simply because of a technical flaw in not challenging the said three orders, the writ petition cannot be thrown away and would very well be maintainable even without the same if on merit or otherwise the order dated 26th October, 1991 could be or is interfered with in exercise of the discretionary power under Article 226. The amendment seeks to incorporate a ground and three prayers which does not in any way change the nature and character of the proceedings. Neither it has any effect on the complexion of the case made out. Therefore, the amendment sought to be incorporated, by no stretch of imagination, could be said to be inconsistent with the pleadings.
10. The application has been originally inscribed as one under Article
226. By amendment it was also sought to be inscribed alternatively as one under Article 227. Whether the application is maintainable under Article 226 or 227 would be dealt with later on. Whether this Court will exercise its discretion either under Article 226 or 227 would also be gone into subsequently. For the purpose of allowing the amendment, it is not required to go into those questions, it is the jurisdiction which is being sought to be invoked. In case a particular kind of proceedings is not maintainable and a different kind of proceeding lies in respect thereof, the Court has jurisdiction to convert the one into the other subject to limitation and Court-fee, as the case may be. This question will also be gone into later on when the question of maintainability as has been raised by Mr. Govind Krishna will be dealt with. At this stage, in view of the legal propostion that this Court has jurisdiction in appropriate cases to convert a proceeding from one into the other, for the sake of deciding the question of amendment, it is not required to be gone into the said question. Subject to the objection taken on the question of maintainability of the writ petition and its conversion into one under Article 227, the amendment as a whole is hereby allowed and shall be deemed to be incorporated in the writ petition.
11. Mr. Govind Krishna contends that the jurisdiction under Article 220 and Article 227 are altogether different. The petitioner has to make a choice which jurisdiction he seeks to invoke. It is an option exercised by the petitioner. If opted for one, the other shall be deemed to have been waived by the petitioner. By way of amendment, he cannot opt for the other since been waived. The petitioner cannot opt for both on being indecisive. In such cases, he contends that though the Court has jurisdiction to convert the one into the other, the Court should not exercise its discretion in favour of the petitioner which he had deliberately given up earlier. Secondly he contends that the scope of Article 226 and 227 cannot go together and, therefore, an application cannot be treated to be an application under either one or the other.
12. Under Article 220, the High Court exercises the jurisdiction conferred on it by the Constitution to issue writs against any person. The exercise of writs are restricted by the restraint exercised by the Court upon itself. Writ as it originally conceived was available against the State and the authority within the meaning of Article 12. The concept of authority under Article 12 has been widely expanded by various judicial pronouncements and has developed to an extent as it stands today. By reason of development in law, the horizon of Article 12, has been extended not only to include the State and the other authorities but also the agencies and instrumentalities of the State (See Ramanna Daya Ram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, Ajay Hasis v. Khalid, AIR 1981 SC 487 and Central Inland Water Transport Corporation v. Brojo Nath Ganguli, AIR 1986 SC 1571).
13. The organs of the sovereign has been divided into three-legislature, executive and the jurisdicary. Article 12 while defining "the State" included the Government and parliament of India and the Government and the Legislature of each of the States and local and other authorities within the territory of India or under the control of the Government of India. This definition has been included in Part III in relation to Fundamental Rights. Whereas in Part V dealing with the Union in Chapter I, it mentions Executive and in Chapter II it mentions Parliament. While Judiciary has been dealt with in Chapter IV. Similarly in Part VI dealing with the States, Chapter II deals with the Executive while Chapter III relates to the State Legislature and Chapter V deals with the High Courts in the States. Fundamental rights are available against the State. These fundamental rights are enforced under Article 226 through High Courts. The Courts while discharging judicial functions is not a State and no fundamental right is available against the judiciary when it discharges judicial functions. The Judiciary may be State in relation to a certain class of people when it exercises administrative functions over them. Judiciary cannot be State for enforcement of fundamental rights in its relation with the litigants who come for enforcement of their rights through judiciary. That was the reason, despite existence of Article 226, immediately thereafter Article 227 has been engrafted conferring overall superintending power on the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Similarly Article 32 has been engrafted in relation to the Apex Court. The learned counsel for the opposite party contends that since the order impugned is an order passed by a Civil Court, it is not amenable to writ jurisdiction particularly when the dispute is a dispute between two private persons, as has been held in the case of Matthan Singh v. II Additional District Judge, Meerut, (1996)1 All Rent Cas 117.
14. The question was considered in the case of Ganga Saran v. Civil Judge Hapur, AIR 1991 All 114 by a Full Bench of this very Court in which the principle was laid down to the extent that writ will lie against an order passed by the Civil Court where "either appeal or revision under Section 115, C.P.C. is available to the High Court because of the amendment of Section 115, C.P.C. at Allahabad on the same principle on which the jurisdiction under Article 226 is exercised provided that there has been violation of fundamental principles law and the relief sought for is not a relief which the other side is not obliged to perform in discharge of his public duty. The decision in the case of Matthan Singh (supra) is not an independent decision but is an understanding on the reading of the ratio decided by the Full Bench in the case of Ganga Saran (AIR 1991 All 114) (supra).
15. In the present case, the relief sought against the order does not emanate from any obligation to perform anything in discharge of public duty by either of the parties. The lis is between two private persons, none of whom is obliged to discharge any public duty in relation to the dispute concerned. There is no lis against the Judge or the Judiciary, while discharging judicial function, the Courts decide dispute between the parties. It never becomes a party to the lis and there being provisions for appeal and revision either under Section 115, C.P.C. or under Article 227, as the case may be, the jurisdiction under Article 226 can not be invoked, even though the test of violation of fundamental principles of law is satisfied. Therefore, in the facts and circumstances, of the case, the application under Article 226 of the Constitution of India is not maintainable against the orders impugned.
16. The learned counsel for the opposite party contends that if the application itself is not maintainable, there cannot be any scope of allowing an amendment in a non-maintainable proceeding. If the Court does not have the jurisdiction to entertain the writ petition, in that event, it cannot assume jurisdiction to amend the said writ petition in respect of which the Court cannot exercise jurisdiction. The scope of the two Articles being altogether different, the amendment if allowed altogether changes the nature and character of the proceedings.
17. The second contention of the counsel for the opposite party, as above does not stand to reason because of the fact that the nature of the proceeding is in substance a revision. While exercising writ jurisdiction, the High Court exercises its power of revision. It does not sit on appeal but a review of the manner in which the decision was made. The jurisdiction exercised under Article 227 is also a revisional jurisdiction. In exercise of Article 227, the High Court does not sit on appeal but revises or reviews the process making the decision or the jurisdiction or otherwise. Therefore, in substance the jurisdiction exercised under Article 226 and under Article 227 are substantially a revisional jurisdiction. The only difference is that the revision under Article 226 is exercised against the State or other authorities falling within the ambit of Article 12 while jurisdiction under Article 227 is that of superintendence over the Courts and Tribunals within the territory over which the High Court exercises its jurisdiction. It is only the authority whose order is being revised makes the distinction or difference as to which revisional power would be exercised by the High Court (226 or 227). Therefore, by reason of conversion of application from one under Article 226 to one under Article 227 does not change the nature and character of the proceeding. It remains are visional proceeding in either of the two cases. So far as the first part of the above contention of the opposite party is concerned, the same cuts at the root of the jurisdiction of the High Court to convert one into other. By now it has been a settled principle of law that the High Court has power to convert an appeal into a revision or a revision into an appeal subject to limitation and Court-fees, as the case may be. In the present case, neither under Article 226 or under Article 227, there is any provision provided for limitation. Though, however, delay in invoking the jurisdiction is a factor to be taken into consideration, similarly the question of Court-fee also docs not pose any hindrance in the present case inasmuch as the Court-fees in respect of an application under Articles 226 and 227 are one and the same.
18. The contention of the counsel for the petitioner that by reason of such amendment, the Court is creating jurisdiction in itself which it did not possess when the application was originally made. The Court cannot create jurisdiction through amendment in an application which was not maintainable as it stood when the amendment is being made.
19. The above contention is not acceptable because of the reason that the Court cannot create jurisdiction if it does not possess the same. Here by reason of amendment, no jurisdiction is created. The High Court is in possession of different jurisdictions under Article 226 and under Article 227. It is exercising in its discretion as to which jurisdiction it would exercise. The power of superintendence as conferred by Article 227 is ingrained in the High Court. This power of superintendence includes power of judicial revision to get the inferior Courts and Tribunal within the bound of their authority to see that they do what their duty requires and that they do it in a legal manner (See D.N. Banerjee v. R.K. Mukherjee, 1953 SCR 302 : (AIR 1953 SC 58). The power of judicial superintendence conferred by Article 227 is not limited by technical rules which govern the exercise of the power to issue writ to certiorari under Article 226. The power under Article 226 can be exercised only on an application of a party. But the power under Article 227 may be exercised by the Court also suo motu (See Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1995) 1 SCR 1104 : (AIR 1955 SC 233). The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. Though there is no period of limitation prescribed for such application which may be refused inter alia on the ground of unreasonable delay which is not explained by special circumstances and particularly were by reason of delay the position of the opposite party has changed. Therefore, even if the High Court in its discretion thinks it can interfere with the matter is exercise of its power of superintendence, there the conversion would not affect materially the jurisdiction conferred on the High Court itself which is already in existence. That apart in the case of The Reliable Water Supply Service of India (P) Ltd. v. Union of India, AIR 1871 SC 2083 the High Court's power to convert one into other has been recognised.
20. In the present case two orders have been challenged one dated 31st May, 1993 and the other 26th October, 1991. The writ petition was moved on 12th August, 1993 having been affirmed on 16th July, 1993. Therefore, so far as the order dated 31st May, 1993 is concerned, there was no question of delay. But so for as the order dated 26th October, 1991 is concerned, the same stands explained by reason of the statements made in the petition itself that two attempts to set aside order had failed and that in what circumstances the order dated 31st May, 1993 was passed. Therefore, it cannot be said that the delay remains unexplained particularly when from one order impugned in the petition, there is no delay at all. Therefore, I have not been able to persuade myself to agree with the contention of the learned counsel for the opposite party in this regard.
21. Now on the question of merit, the counsel for the opposite party contends that since both the orders impugned are orders either passed under Section 26 or flows from it, an appeal lies under Section 28 of the Hindu Marriage Act to the learned District Judge because of Section 19 of the Family Courts Act. Therefore, even if the High Court has power of superintendence under Article 227, even then it cannot convert the application under Article 227 into one under appeal since the appeal lay before the learned District Judge and not before the High Court. Alternatively he argues that even if the application under Article 226 is converted into under Article 227, the same cannot be exercised when there is an alternative forum by means of an appeal.
22. Admittedly if an adequate alternative remedy lay and if the same has not been availed of, the jurisdiction under Article 227 cannot be invoked as has been held in the case of Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, AIR 1976 SC 2446 (Para 6), wherein it is further observed :
"It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of the applicant."
23. In the case of Shanker Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 : 1969 (2) SCC 74 (78) it was held that if two remedies were open and the party had exhausted one it would not be sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. But in the present case, the other mode of relief has not been invoked or exhausted. Hence it is a case where the Court has to exercise one or the other of the modes if one does not apply and the other does. Therefore, it has to be looked into as to how far the contention of the counsel for the opposite-party works in favour of his contention or against that of the counsel for the petitioner.
24. The counsel for the opposite party contends that an appeal lies under Section 28 of the Hindu Marriage Act from an order passed under Section 26 of the said Act before the Court such appeal lay from an order passed by the Court. According to him, by reason of Section 19 of the Family Courts Act, the order has been passed by the learned Civil Judge who is conferred with the jurisdiction under the Family Courts Act. Ordinarily an appeal lies to the District Judge from an order passed by the Civil Judge. Therefore, in terms of Section 28, the appeal lies to the District Judge and not to the High Court. Therefore, there is no scope for conversion of the proceedings into one under appeal.
25. The above proposition does not appeal to me for the simple reason that under Section 19 of the Hindu Marriage Act, every petition under the said Act is to be presented before the District Court as defined in Section 3(b) thereof being the principal Civil Court of original jurisdiction or any other Civil Court notified by the State Government. An appeal from the principal Civil Court of original jurisdiction lies to the High Court as is understood from the scheme as expressed in Section 28 of the said Act. The issue is further clarified in a clear and unambiguous expression used in Section 19 of the Family Courts Act providing therein that an appeal shall lie from every judgment and order of a Family Court to the High Court notwithstanding anything contained in the Code of Civil Procedure or in any other law. The jurisdiction exercised by the Civil Judge is conferred by reason of Section 7 of the Family Courts Act as established under Section 3 of the said Act. Therefore, it cannot be said that the High Court cannot invoke its power to convert a revision into a memo of appeal or vice versa as sought to be urged by the learned counsel for the opposite party.
26. Section 26 of the Hindu Marriage Act provides as follows :
"26. Custody of children. -- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose; make from time to lime, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made".
27. The said Section postulate that the Court may pass interim orders or may make provision in the decree with regard to the custody, maintenance and education of the minor children consistently with their wishes, wherever possible. Where such provision is made either by way of an interim order or in the decree, in such cases, after the decree, further applications can be made in respect of the custody, maintenance and education. By such decree or interim order and for such purpose, the proceeding for obtaining such decree shall be deemed to be pending. The Court may also revoke, suspend or vary such orders and provisions previously made. The scheme of the Section clearly indicates that the power under Section 26 can be exercised by way of interim order in the pending proceeding or while disposing of any such application made therein before the decree is passed or at the time of passing the decree by incorporating such provision in the decree itself, such provision can also be made. The power under Section 26 can also be exercised after the decree is passed only if such orders were passed previous to the decree either by way of interim order or in the decree itself, it is clear from the expressions used that only on these conditions as referred to above, the Court can exercise jurisdiction under Section 26. In view of the clear and unambiguous expression used, it does not postulate any other contingency. Inasmuch as if no order towards that end is made either by way of interim order or otherwise in the pending proceeding or it is not incorporated in the decree itself, in that event, the Court cannot assume jurisdiction to decide an application under Section 26 of the Act after the decree is passed, namely, whereafter the proceeding terminates and does not remain pending, the deeming clause postulates deemed pendency only in cases where provisions were made either by interim order or otherwise during the pendency of the proceeding or in the decree itself and not otherwise. My above view finds support from the clear and unambigous expression used in the Section itself. The expression "previously made" read with the expression "such provisions ............... as might have been made by such decree or interim orders', there is no scope for any ambiguity i n the scheme itself. The language is very clear and simple There cannot be any other meaning because of the expression used in the said Section. When the meaning of a statute is available on a true construction by the plain meaning, the Court cannot add or substract anything therefrom. The principle of interpretation does not permit the Court to find out any other meaning when the language is clear, unambigous, sure and simple. In the present case, the language and expression used in Section 26 is clear, simple, unambigusous, sure and certain.
28. Section 26 does not confer an independent right to any person. It is a right conferred on the parties to a litigation litigating under the Hindu Marriage Act only in a pending proceeding and the proceeding deems to be pending as mentioned above. If no proceeding is pending, Section 26 does not create any right for initiation of a proceeding independent of a proceeding under the said Act.
29. It is also not contended by the counsel for the opposite party that the said proceeding is a suit or proceeding in relation to the Guardians and Wards Act and independent of the earlier proceedings for divorce. But, however, in the order dated 26th October, 1991, it is recorded that the opposite party was she guardian of the child according to the Hindu Minority and Guardianship Act and, therefore, he is entitled to the guardianship and custody of the child. The learned counsel for the opposite party contended that the earlier application for the custody of the child was under the Guardian and Wards Act or under the Hindu Minority and Guardianship Act. The order dated 20th February, 1985 records that the cases filed by each of them against the other will forthwith be withdrawn. The parties had undertaken to withdraw all the cases. Accordingly Arvind Kumar had withdrawn the cases. After having withdrawn, he is precluded from making any further application. The order, however, refers to an order dated 5th September, 1991, wrongly printed as 5th September, 1993, passed by the Apex Court but no such order is being produced before this Court. Even in the written statement filed by the counsel for the opposite party, no reference has been made to the order dated 5th September, 1991 except that the opposite party had filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act in connection with Matrimonial Case No. 208 of 1991. Therefore, it is not a proceeding within the meaning of Section 7(1), Explanation (g) of the Family Courts Act. On the other hand, it was clearly a miscellaneous proceeding as asserted by the counsel for the opposite party under Section 26 of the Hindu Marriage Act filed in connection with the said Original Matrimonial Case No. 208 of 1991. The jurisdiction of the Family Court is confined in respect of the suits in proceedings of the nature referred to in the Explanation to Sub-section (1) of Section 7 and not otherwise, Clause (g) of the Explanation to Sub-section (1) of Section 7 refers to "a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, a minor." The jurisdiction of the Family Court having been specifically provided, it can assume jurisdiction in respect of suits or proceedings, the nature whereof does not fall within one or other of the Clauses (a) to (g) of the said explanation. The Family Court cannot assume jurisdiction in respect of any other proceeding. Though the Family Court could exercise jurisdiction under Section 26 in a proceeding of the nature contemplated in Clause (a), hut because of Section 26 of the Hindu Marriage Act, no application under Section 26 could be made before the Family Court in connection with the proceeding of the nature contemplated in Clause (a) since no such proceeding is pending before the said Court which had already stood terminated by the passing of the decree. An application under Section 26 of the Hindu Marriage Act does not fall within the category provided in Section 7(1)(g) of the Family Courts Act.
30. Therefore, in the facts and circumstances of the case, the Family Court could not have assumed jurisdiction to decide the said application under Section 26 of the Hindu Marriage Act and try Matrimonial Suit No. 208 of 1991 which was not pending in the facts and circumstances of the case. As such the order passed is wholly without jurisdiction. Therefore, it is amenable to the jurisdiction exercised by this Court under Article 226 of the Constitution of India.
31. Now on the facts it is alleged by the petitioner that she was not being represented by the counsel engaged by her on the date when her applications were dismissed. She alleges that such a situation was brought in by reason of the influence exercised by the husband who happened to be a practising lawyer in the said Court. The husband had initiated the proceeding for divorce even without waiting for the birth of the child. The child was born only in March, 1982 whereas the ex parte decree was obtained on 5th May, 1982. The husband has alleged that he was not aware of the birth of the child till 1991. The husband never cared either for the wife or for the child and filed the suit for divorce in July 1981 and sought for guardianship and custody of the child after long 9 years when he had withdrawn his earlier petition in 1985. That he was not aware of the birth of the child is a misstatement on the face of the record that he had made an application for the custody of the child under the Guardians and Wards Act in May, 1984 which he had ultimately withdrawn.
32. That apart the impugned order dated 26th October, 1991 does not show that the wishes of the child was ever attempted to be taken into consideration. While deciding the case, the Courts had been exercising the jurisdiction of the Family Court which has been established with the object at bringing in a conciliation in the relation of the families as provided in Section 9 of the said Act which requires the Court to endeavour for settlement of the dispute. The word 'endeavour' occurred in Section 9(1) being preceded by the word 'every' signifies great importance in respect of the duty cast on the Court to bring about reconciliation. My attention has not been drawn to any such attempt to have been made towards reconciliation or any attempt to settle the dispute. The order impugned or any other order does not show that the wishes of the child was taken into account.
33. It is a settled principle of law that the paramount consideration for the custody of a minor child is the welfare and well being of the child and other considerations are subordinate. There is no rule of law that rights and wishes of parents should prevail over other considerations'. Such rights and wishes are recognised by nature and the society. But such rights are capable for administering to the welfare of the child. The parental rights remain qualified and not absolute for the purpose of investigation. Concern has been expressed by the Courts out of growing experience that serious harm may be caused even to any children by change in the custody, a difficulty which cannot be resolved by purely theoretical considerations. The mere desire of a parent should be subordinate to the consideration of the welfare of the child. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, it was held :--
"The Court will generally refuse to give the custody of minor children to the guilty party, whether husband or wife. The section gives a wide discretion to the Court to make such orders as it may deem just and proper and whenever a marriage is dissolved or an order for judicial separation is made, it becomes the duty of the Court to take into consideration the welfare of the children which is of the paramount importance. The wishes of the mother or the father to have the custody of the child, cannot override the consideration of the welfare of the child."
34. In Hari Chand Rattan Chand v. Virabala, (1974) 15 Guj LR 499: (AIR 1975 Guj 150), it has been held :
"Where the minor has a settled home the Court is not to pass a mechanical order removing the child to another home without consulting the parents and ascertaining the wishes of the minor. The Court has also to see that happiness of a child is linked with his associates, his work, his school and finally on his home, where he gets all the love and affection needed for his proper growth."
35. Where the application for custody of her minor male child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise. In a case before Delhi High Court, Suraj Prakash v. Santosh, 1979 Mad LR 161, it was held, "the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change in circumstances." Though the section requires that wherever possible the wishes of the minor children should be consulted by the Court before passing any order under the section, particularly in the matter of their custody but I.D. Dua, J. who delivered the judgment in Chander Prabha v. Prem Nath, AIR 1969 Delhi 283 held that in a case of conflict between father and mother when the child is below five years of age, the mother has been rightly endowed with a preferential claim in regard to the child's custody as in such cases the child is not capable of forming any intelligent preference and expressing it. In case of a child of tender age, care of the child will be taken much better if he is kept with his mother. In Mohini v. Virender, 1976 HLR 305 (sic), the Supreme Court held :
"The modern trend seems to be that in case of conflict between the mother and father regarding the custody of a child of tender age, preference should be given to the mother in the interest and welfare of the child. Age of the child cannot be held to be the Sole deciding factor regarding his custody and in a case where the age of the boy was eleven years, custody of the child was given to the mother as the welfare of the child warranted it so."
36. The Society is in evolution and has been changing. Old concepts and thoughts are being replaced by new concepts and thoughts. The concept of penance and penance only by the Weaker section of the society viz. the women folk has undergone a change. If the men folk could remarry and the children could carry on with the father then how it would be conceived to be a taboo if the wife remarries and the child or children carries with her. The attitude and outlook of a fast changing developing society has to keep abreast the developed situation if it is good for the reorganised family. Law is for the society. Society is not for law. Therefore, the law has to keep itself abreast with the changes through evolutions and be alive to suit the needs to maintain a healthy and peaceful society vis-a-vis the family. Therefore, orders in this respect are to be passed with due, care and caution having regard to the facts and circumstances of the case.
37. The fact remains that the decree was passed ex parte on 5th May, 1982 on the Divorce petition filed on 23rd June, 1981 while the child was born some time in March, 1982. Therefore, there was no scope for anything to be provided either by way of interim order or any decree with regard to the custody, maintenance and education of the child. The learned counsel for the opposite party has not been able to show anything that the decree contained any provision with regard to the custody, maintenance or education of the child nor he has shown anything that there was any interim order in respect thereof. The application under Section 26 being Case No. 208 of 1991 was filed some times in 1991 long after the decree. By reason of such application, the Court had no jurisdiction to entertain the same since the proceedings for obtaining the decree could deem to be pending only when such orders are provided either in the interim order or in the decree. If no provision in respect of custody etc. is made either in the interim order or in the decree for the purpose of Section 26, the proceeding terminates with the passing of the decree. By no stretch of imagination, it can be deemed to be pending under Section 26 in view of the specific expression used, as indicated above.
38. If the Court does not have jurisdiction and the application is entertained by misconceived notion and the jurisdiction is exercised though it had none, the order is a nullity. In absence of any jurisdiction, the order can, in no way, be treated to be an order in exercise of such jurisdiction. Therefore, the order in the present case, by no stretch of imagination, could be said to be an order passed under Section 26 of the Hindu Marriage Act and, therefore, no appeal can lie against such order under Section 28(2). The order under Section 26 as has been made appealable under Sub-section (2) passed in proceeding under the Hindu Marriage Act indicates by reason of expression used in the said Sub-section (2) that the said order is to be passed as contemplated within the meaning of Section 26 only when the same is an interim order. Such orders can be appealable even if passed after the decree provided the proceeding is deemed to be pending on satisfaction of the conditions as mentioned in Section 26. Once the decree is passed without any provision either by way of order passed on interlocutory application or in the decree itself, in that event, the decree becomes final and it cannot be revived for the purpose of being deemed to be pending by filing of any application subsequent to the decree. Section 26 is provided for passing order of custody by way of interlocutory measure in a matrimonial proceeding. The relief with regard to the custody and maintenance of a child is provided in the Guardianships and Wards Act and in the Hindu Minority Guardianship Act, 1956. Such relief can be had independently, even without a matrimonial proceeding under the Hindu Marriage Act or any other Marriage Act, under the provision either under the Guardians and Wards Act or under the provision of the Hindu Minority and Guardianship Act, as the case may be. Only to avoid multiplicity of proceedings. Section 26 has been engrafted for the intention of granting relief with regard thereto if a proceeding is pending. But as soon the proceeding terminations, Section 26 cannot be available. If such an interpretation is given, in that event, it will be a parallel statute with those of the Guardianship and Wards Act and the Hindu Minority and Guardianship Act. Such an interpretation would be preposterous. The phrase "orders made by the Court in any proceedings under this Act under Section 25 or Section 26 clearly indicates that such appeal lies against the order passed under Section 26 in a pending proceeding and not otherwise. Therefore, in the present case, the impugned order, in the facts and circumstances of the case, not being an order under Section 26 passed in a proceeding under the said Act, since none were pending, is not appealable under Sub-section (2). The proceedings, not being one under Section 7(1)(g) of the Family Courts Act or a proceeding arising out of one under Section 7(1)(a), the order impugned is also not appealable under Section 19 of the Family Courts Act.
39. The fact as disclosed above is s o aggrevating, it is the duty of the Court to activate itself to put the things straight when the process are patently staring on the face of it as an abuse of it. It is the duty of the High Court to keep the subordinate Court within the limit of its jurisdiction even suo motu when such matters arc brought to its notice. Both Article 227 of the Constitution and Section 115 may be exercised without any application. Such observations is supported by the view expressed in the case of Jatindra Mohan Nandy v. Krishnadas Nandy, 56 Cal WN 858 : AIR 1953 Cal 34 (Para 6 of AIR) wherein it was held :--
"In any event this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us."
40. Mr. Justice P.N. Mookherji, in the case of Mahendra Dutta and Co. (P.) Ltd. v. Uma Charan Lal, (1964) 68 Cal WN 179 (DB), presiding over the Division Bench had laid down :
"It is hardly arguable that a point, which goes to the root of the Court's jurisdiction cannot be taken in a revision application if the said point has not been urged before the trial Court. That will practically nullify the revisional powers of this Court in very appropriate cases in many instances. If the trial Court has passed an order, which it had no jurisdiction to make, or which was made in the irregular or illegal exercise of its jurisdiction. This Court will be failing in its duty if it does not revise the same simply because the point of jurisdiction was not taken in the trial Court. It is of course true the exercise of the revisional power of this Court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, if the exercise of this discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this Court, simply because it was not taken in the trial Court."
"......It seems to us that when the Rule comes up for final hearing before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other taken the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection. The Court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. Indeed, in every rule issued by this Court, we have the residuary clause, "such other or, further order as to this Court may deem fit and proper." In our view, those words are comprehensive and wide enough to include all appropriate revisional grounds and to allow this Court to interfere in a proper case even on a ground which was not taken at the time the rule was issued, or upon which the Rule was not initially issued. In the other words, such interference may well be made even on a ground other than the one on which the Rule was issued.
In short, in a matter of this kind, where a question of jurisdiction is involved, to deprive a party of suitable relief under the revisional powers of this Court on the ground that the particular objection was not taken in the trial Court, or that even if it was taken in the trial Court, as Rule was issued on that ground, would be to de feat the ends of justice and, in any view, such a restricted interpretation of the scope of the revisional powers of this Court would not be consistent either with law or with the principles of justice, or with precedents or authority."
41. Following the said two decisions the Hon'ble Mr. Justice N.K. Mitra in the case of M/s. Dwarika Das Raghubir Prasad Chaudhary, (1987) 1 Cal LJ 479.
"The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned."
42. Similar view was taken following the above decisions in the case of Ratan Muni Jain Intermediate College, Agra v. Director of Education (Secondary), Allahabad, AIR 1997 All 163.
43. The facts of the present case, as disclosed above, are such as this Court is required to intervene because of the reason that proceedings in which the impugned orders were passed were wholly outside the scope and jurisdiction of the learned single Judge, as has been observed earlier. Therefore, the impugned orders dated 26th October, 1991 and 31st May, 1993 (Annexures '6' and '12') are hereby set aside.
44. In the result, this revision application under Article 227 of the Constitution is allowed.
There will, however, be no order as to costs.