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2015 DIGILAW 3945 (ALL)

Ritu Verma v. Akash Kumar

2015-12-11

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The defendant-applicant has approached this Court assailing the interlocutory order dated 28 September 2015, passed by Principal Judge, Family Court, Kasganj in Regular Misc. Case No. 53 of 2014(Akas Kumar Vs. Ritu Verma) rejecting the application under Order 7 Rule 10 and 11 C.P.C filed by the applicant under the Guardians and Wards Act 1890. 2. The submission of the learned counsel for the applicant is that a petition was filed under Section 25 of Guardians and Wards Act 1890 by the first respondent for custody of minor daughter, the applicant put in appearance and filed objection under Order 7 Rule 10 and 11 read with Section 9 of the Act stating that the court below would have no jurisdiction as the minor child resides at Ward No.5, Todipara Todibhim, District Karoli State of Rajasthan. The submission of the learned counsel for the applicant is that the court below instead of deciding the question of jurisdiction rejected the application by merely stating that it is argumentative. 3. In my opinion, the court below committed jurisdictional error in rejecting the application summarily, the question as to whether court at Kasganj would have jurisdiction in view of specific provision under Section 9 of the Act, has to be decided. The purpose of using expression "where minor ordinarily resides" is probably to avoid the mischief like the minor may be secretly removed to some other place and kept at that place under compulsion, the application for custody of minor has to be filed in ordinary place of residence of minor. 4. In my view the court committed an error, therefore, the order is unsustainable. 5. In these circumstances, it is provided that the court shall decide the question of jurisdiction first before proceeding to decide the case on merit. 6. The order has been passed without issuing notice to the first respondent, in the event of the first respondent being aggrieved, it will be open for him to file a recall/modification application. 7. With the aforesaid observations, the petition is allowed, the impugned order is set aside. No order as to costs.