- (1.) THIS revision petition is filed under Article, 227 of the Constitution of India, against the Order of ?the Principal Judge, Family Court?, Madras, in I.A. No. 476 of 1992 in O.P. No. 559 of 1992, granting injunction, restraining the petitioner herein from leaving India, till the disposal of the O.P.
(2.) BEFORE setting out the facts of the case relevant for the purpose of this order, it should be pointed out that the Family Court, which has passed the order on 14.8.1992 against the petitioner, has not chosen to give copies of the fair and decretal order to the petitioner, in spite of her filing applications therefore, and impressing the Court upon the urgent need for such copies. It is expressly alleged in the affidavit filed by the petitioner in C.M.P. No. 11364 of 1992, which is an application for dispensing with the production of the fair and decretal orders that the petitioner applied for the certified copies of the fair and decretal orders on 18.8.1992 under Copy Application Nos. 1896 and 1897 of 1992, i.e., one for fair and decretal orders and another for petition and orders thereon, that she was informed that the court will call for stamp papers only on Wednesdays and the Superintendent of Copyists told the petitioner that it would take one month for furnishing the copies and that when the petitioner informed him about the urgency of the matter, she was told that certified copies will be given only according to the order of priority in applications and there was no chance of her getting copies before the expiry of a month. The above statement, if true, discloses the lamentable state of affairs. Even assuming that the Superintendent of Copyists did not inform the petitioner, as stated in the affidavit, the fact remains that the certified copies of orders have not been furnished to the petitioner even today, i.e. 28.8.1992. The fair order runs to 11 pages and the decretal order contains only two pages. When the matter is stated to be so urgent by the petitioner and the petitioner having informed the Court below about the urgency, the Court is bound to grant the copies to the petitioner as early as possible, and in this case, it could have been done within a week from the date of application. The court cannot prevent the parties from agitating their rights before the Appellate forums, as against the orders passed by that Court by not issuing, the certified copies in time, and thus frustrating the purpose of granting of copies in time. The Family Court should take into account all this and hereafter issue copies in urgent matters quickly and when there is real urgency the Family Court, Madras, shall issue copies as early as possible without postponing the issue of copies by one month or a longer period, ignoring the urgency of the matter. The original petition was filed by the respondent herein for restitution of conjugal rights on 9.6.1992 under S. 9 of the Hindu Marriage Act. The court ordered notice on 10.6.1992 and posted the petition to 27.7.1992. On that day, both parties appeared before it and the petitioner filed her counter affidavit on that day itself. The respondent herein had earlier, on 15.7.1992, filed an application for injunction under Order 39, Rule 1 and S. 151 of the Code of Civil Procedure, Praying for restraining the petitioner herein from saving the country, pending disposal of the main petition. In that petition the Family Court ordered notice on 15.7.1992, returnable by 27.7.1992 and granted ad-interim injunction restraining the petitioner herein from leaving the country until further order. Thus, on 27.7.1992 the main O.P. as well as the application for interim injunction, were before the Family Court and the learned Judge could well have taken up for consideration the interlocutory application. If any attempt for reconciliation was to be made it could have been made on that day itself. I am informed by the learned counsel for the petitioners herein that there was an attempted reconciliation by the learned Judge, but it failed. There is an endorsement on the original petition by the learned Judge as follows: ?H wants to C. with W. W refused. Cheating is given as reason by wite. Reconciliation and P.O. Report 25.9.92.? ?Both are pt. counter filed. sd.27.7.92.? The respondent had filed W.P. No. 8760 of 1992 in this Court against the petitioner's father and three others for the issue of a writ of habeas corpus and therein, an order was passed on 3.8.1992 directing the Family Court to take up the application for injunction and dispose it of on merits within two weeks from that date. The Writ Petition was ordered accordingly. Pursuant to the said directions, the application for injunction was taken up by the learned Judge and disposed by order dated 14.8.1992 granting injunction as against the petitioner herein. It is that order, which is challenged in this revision petition. The reasons given by the learned Judge for granting injunction, are as follows:? (1) The petitioner has filed a petition under the Hindu Marriages Act in the Family Court at Bangalore for divorce as against the respondent herein making serious allegations against him. Having made such allegations in the Original Petition in the Bangalore Court, it is not fair and reasonable on the part of the petitioner to leave the country, which would amount to disregard and disrespect to the Institution of marriage infringing the said institution. (2) The petitioner herein wants to leave the country with the possibility of never returning to India. In such a case, the Family Court has jurisdiction to grant injunction under Order 39, Rules 1 and 2, Code of Civil Procedure read with S. 7(1) Explanation (d) to the Family Courts Act, 1984. (3) There is an understanding between the petitioner and the respondent that they should go together abroad for higher studies and the petitioner cannot give a go-by to such an understanding on the ground that the respondent has committed a matrimonial offence. (4) The respondent having been subjected to serious charges, cannot be allowed to live under the Democle's sword hanging above his head for an indefinite period.
(3.) A perusal of the reasons given above, will show that none of them is sustainable. The proceeding before the Family Court at Bangalore was not before the learned Judge, whose order is now challenged in this revision petition. But, unfortunately, the learned Judge has devoted two paragraphs of his order to the merits of the case at Bangalore Family Court, as if that proceeding is being heard by him. The learned Judge has made an observation that the proceeding in Bangalore Court has to be transferred to the file of his Court for disposal under S. 21(a) of the Hindu Marriages Act. The learned Judge has overlooked the fact that such transfer could be ordered only by the Supreme Court of India and not either by himself even or by this Court. Hence, the learned Judge went out of bounds in discussing the merits of the case pending before the Family Court at Bangalore. Peculiar expressions are used by the learned Judge as ?fault theory?, ?guilt theory? and ?offence theory?. I do not know how those expressions would help the learned Judge in coming to the conclusion that an order of injunction should be granted as against the wife, restraining her from leaving the country. Even assuming that the petitioner has made reckless and wild allegations against the respondent in the Original Petition filed by her in the Bangalore Court, if she is not in this country to prove t he same at the time of hearing of that petition, the respondent should be happy as that petition will be dismissed on that ground. But, the mere filing of a petition by the petitioner in the Family Court at Bangalore will not enable the respondent to prevent the petitioner from leaving this country. There is no law which says that the petition filed in the Family court should be kept pending till the return of the petitioner herein into this country, and nobody can expect the court to, keep the petition alive for more than three years for the arrival of the petitioner. Learned Judge has drawn an inference from Exhibits PI and P2 that the parties to the petition were living happily for a period of one year before the petitioner herein left the matrimonial home, on 26.5.1992. Ex. P1 is a pamphlet issued by the Delta Computers. According to learned counsel for the respondent, it is a concern run by both the parties herein. The pamphlet does not contain any indication whatever as to the personal life led by the petitioner and the respondent. Nor does Ex. P2 which is an advertisement in The Hindu, dated 12.4.1992, help the Court to hold that the petitioner and the respondent were living happily for a period of one year. Even assuming that they were living like that, it does not mean automatically that the petitioner left the matrimonial home without any just cause therefore. But, even before taking evidence and considering the merits of the main O.P., the learned Judge has practically given a finding that the petitioner herein was guilty of deserting the respondent on 26. S. 1992 without any reasonable cause. ;