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2005 DIGILAW 1239 (RAJ)

Kiran v. Anil Kumar

2005-04-27

MANAK MOHTA

body2005
Judgment 1. This appeal under Section 19 of the Family Courts Act, 1984 read with Section 47 of the Guardian and Wards Act,1890 is directed against the order dated 05.02.1998 passed by the Judge, Family Court, Jodhpur whereby the learned Judge by ex parte order directed the appellant to hand over the custody of her minor son Ajay to the respondent Anil Kumar. 2. Briefly stated the facts of the case are that the appellant married with the respondent Anil Kumar as per the Hind Rites at Bikaner in the year 1990. Out of the said wedlock, she gave birth to a son named Ajay in the year 1991. It is alleged that the appellant left her matrimonial home alongwith her son Ajay on 26th January, 1995. Somehow, she was brought back. But on 13.02.1995 she again left the home. She finally denied to stay with the respondent. The respondent filed an application before the Family Court, Jodhpur under the Guardian and Wards Act, 1890 (hereinafter after referred to as the "Act of 1890") for the custody of his minor son Ajay. The respondent has described the appellant as a quarrelsome and arrogant lady. It is also alleged that she has been treating her son Ajay with cruelty. During the trial the respondent examined on his behalf AW.-1 Shyam Lal, AW.-2 Sukhiya, and AW.-3 Anil Kumar. The learned Judge relying on the testimony of the three witnesses passed ex parte decree in favour of the respondent. 3. It is contended by the learned Counsel that the learned Judge has committed error in passing ex parte decree without considering that the notices were not served on the appellant. It is also submitted that the appellant has denied all the allegations made in the application filed under the Act of 1890 before the Family Court. It is stated that son Ajay has been staying with her since 1991. She has been taking his full care. It is further stated that in fact the appellant was turned out from the house by the respondent. She was being ill-treated by the respondent as such she filed an appliction under Section 125 CrPC in the Court of Additional Chief Judicial Magistrate No. 2, Bikaner, which was allowed by the order dated 19.06.1997. The learned Magistrate directed to pay Rs. 400/-per month to the appellant and Rs. 300/-to her minor son Ajay i.e., in total Rs. She was being ill-treated by the respondent as such she filed an appliction under Section 125 CrPC in the Court of Additional Chief Judicial Magistrate No. 2, Bikaner, which was allowed by the order dated 19.06.1997. The learned Magistrate directed to pay Rs. 400/-per month to the appellant and Rs. 300/-to her minor son Ajay i.e., in total Rs. 700/-. The respondent has failed to make payment. The respondent as a counter blast has filed an application for the custody of Ajay. 4. Having heard learned Counsel for the parties, we are of the view that the instant miscellaneous application deserves to be allowed. It is not in dispute that Ajay is staying with the appellant since 1991 i.e., since birth. Now he must be 14 years. It would not be expedient to give the custody of Ajay to the respondent at this stage. This fact alone is sufficient to allowed the application and set aside the impugned order of the Family Court. It is stated that the order of family Court was stayed by an interim order of this Court dated 24.02.2004. 5. Consequently, the miscellaneous application is allowed. The order of the Family Court dated 05.02.1998 is set aside.