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2020 DIGILAW 276 (UTT)

Deepak Khanna v. Sonal

2020-07-08

NARAYAN SINGH DHANIK, RAVI V.MALIMATH

body2020
JUDGMENT : Ravi V. Malimath, J. 1. The applications were filed by father and mother seeking custody of the minor child before the Additional Judge, Family Court, Roorkee. By the impugned order, the court held that since earlier the child was in the custody of the father, who is a natural guardian, residing at Bulandshahar, the court at Roorkee has no jurisdiction to try appellant's application. The impugned order is also challenged on the ground that pursuant to the order of this Hon'ble Court, restitution should have been ordered and the custody of the child should have been handed over to the father. Questioning the same, the father is in this appeal. 2. Shri Arvind Vashistha, learned senior counsel appearing for the appellant's counsel submits that the interim custody of the child was handed over to the mother in terms of the order dated 13.07.2017 passed by this Hon'ble Court in Appeal from Order No. 625 of 2016 during the pendency of the proceedings under Section 25 of the Wards and Guardian Act before the family court at Roorkee. Therefore, the dismissal of the application on the ground of jurisdiction is erroneous. 3. The same is disputed by Shri Mohd. Safdar, learned counsel appearing for the respondents. He submits that the impugned order passed on the question of jurisdiction is appropriate. Hence, no interference is called for. 4. On hearing learned counsels, we are of the view that appropriate interference is called for. The material on record would indicate that the child was in the custody of the father at Bulandshahar. However, in terms of the order passed by this Court on 13.07.2017 in Appeal from Order No. 625 of 2016, the custody of the child was handed over to the mother till the proceedings under Section 25 of the Guardian and Wards Act is finally decided by the family court. The family court has, therefore, wrongly held that it has no jurisdiction. In view of the fact that the child was earlier residing at Bulandshahar and admittedly, the child is presently residing within the jurisdiction of the court at Roorkee, therefore, it is highly improper to ask the litigants to keep on travelling from one court to another, only on the point of jurisdiction. In view of the fact that the child was earlier residing at Bulandshahar and admittedly, the child is presently residing within the jurisdiction of the court at Roorkee, therefore, it is highly improper to ask the litigants to keep on travelling from one court to another, only on the point of jurisdiction. Since, admittedly both learned counsels submit that the child is presently under the custody of the mother, who is residing at Roorkee, we deem it just and appropriate to direct the family court, Roorkee to decide the application afresh on merits. 5. For these reasons, the appeal is allowed. The order dated 31.08.2017 passed by Additional Judge, family court, Roorkee, District Haridwar in misc. case No. 1 of 2016 is set-aside. It is held that the family court at Roorkee has jurisdiction to try the case. The matter is restored to file. The family court, Roorkee is directed to hear the application on merits and pass appropriate orders by the end of August, 2020. The parties to appear before the family court, Roorkee on 20.07.2020 without any further notice.