Introduction 

• This is a landmark judgment which talks about res subjudice under Section 10 of Civil Procedure Code, 1908 (CPC). 

Facts 

• The Respondent (Konel Parekh) and the Appellant (Radhika) were married according to Hindu rites on 1st April 1990. 
• A male child was born to them on 30th March 1991. Respondent filed a petition in the High Court seeking his appointment as guardian of the son and for other reliefs. 
• In Petition no. 694 of 1991 the Respondent applied for a direction that he be given interim custody of the child. 
• Appellant responded to the notice stating that she had moved to the family Court at Bombay seeking reliefs of divorce, interim custody, maintenance and restraint orders. 
• The Family Court by an order on 11th December 1991 restrained Respondent from forcingly removing the child from the custody of the Appellant. It was stated by her that the order of restraint had become necessary in view of the fact that the Respondent had physically deprived her of the company of the child for some period. 
• Respondent contended that he did not know about the filing of the case of divorce in Family Court on 6th December 1991 and the order dated 11th December 1991. 
• Radhika moved an application for stay of proceedings initiated by Respected for interim custody of the child. 
• The Court took both the proceedings together and held that the questions involved in O.P. 694 of 1991 and the proceedings in the Family Court cannot be same although there may be a little overlapping in the matter of evidence to be adduced in both. 
• The present Appeal has been filed by Radhika against the above order.   

Issue Involved  

• Whether the Appeal is maintainable? 
• Whether the suit should be stayed till the disposal of the issue as to custody of the child in the Family Court? 

Observations 

• With respect to Issue (i): 
  • The Counsel for Respondent had questioned the maintainability of the above appeal. 
  • The above challenge is on the ground that an order passed on an application for stay of the proceedings under Section 10, C.P.C. is not a 'judgment' and thus no appeal under Clause 15 of the Letters Patent is maintainable. 
  • The Court cited the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben (1981), where the Court held that “The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere.” 
  • The Court finally held that there has been unanimity among the Chartered High Court that the word “judgment” in Clause 15 embraces not only judgments given in the exercise of jurisdictions specifically mentioned in the Letters Patent but also in the exercise of jurisdictions not so mentioned. 
  • Thus, it was held that the appeal is maintainable. 
• With Respect to Issue (ii): 
  • The Court held that in a suit seeking divorce the Court can make provisions in the decree with respect to custody of the child and may from time to time on an application filed make orders and provisions with respect to custody, maintenance and education of children. 
  • In most cases custody orders are for a limited purpose. However, if once the question of custody of minor child is an issue fact and law in the proceeding before the Family Court if the same issue is brought between the same parties in another the judgment delivered earlier will operate as res judicata. 
  • The Court observed that the child in this case is under 5 years of age. Ordinarily the custody should be with the mother, however the father has every right to contend that the interest of the child would be defeated if custody is with the mother. 
  • It was observed that the suit filed by the respondent has brought in substantially the same questions of fact with respect to the custody of child which have to be decided by the Family Court. 
  • Thus, the Court refused to agree with the view of the single Judge that proceedings are not same although there may be a little overlapping. 
  • The Court thus, finally stayed O.P. No. 694 of 1991. 

Conclusion 

This judgment lays down the crucial rule that when the substantially same questions are in issue in a previously pending proceeding, the present proceeding must be stayed which finds place in Section 10 of CPC.