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2021 DIGILAW 548 (BOM)

Pravin v. Alka

2021-03-09

A.S.CHANDURKAR, PUSHPA V.GANEDIWALA

body2021
JUDGMENT Pushpa V Ganediwala, J. - Heard Shri R.K. Maheshwari, learned counsel for the appellant and Shri Abhijeet Samba ray learned counsel for the respondent. 2. These are the appellant/husband's appeal under Section 19 of the Family Courts Act, 1984 against the orders passed by the Family Court, Nagpur in his petitions for custody/access of minor daughter Bhumika aged about 15 years (DOB is 23/03/2006). 3. The Family Court Appeal No. 44/2018 is directed against the order dated 24/10/2016 passed in the petition No. D-13/2016 by which the petition is dismissed on the ground of want of territorial jurisdiction and want of fresh cause of action. The review against the same order also came to be dismissed vide order dated 04/11/2017 in M.J.C. No. 14/2017. 4. The Family Court Appeal No. 45/2017 is directed against the order dated 24/05/2017 in M.C.A. No. 11/2016 by which the Family Court, Nagpur rejected the husband's prayer for granting visitation rights for the daughter - Bhumika, in the paramount welfare of the child and directed the parties to resolve the issue of access to their minor daughter through the process of Mediation. 5. Facts in brief, the marriage between the parties was solemnized on 19/06/2005 and the same got dissolved by a decree of divorce by mutual consent in Petition No. A-473/2011. Out of this wedlock they are blessed with one daughter Ku. Bhumika, presently in the custody of respondent/ mother. 6. The appellant/husband had filed a petition No. D-13/2016 under Section 6 of the Guardians and Wards Act, 1890 for the custody of minor daughter Bhumika. Prior to filing of this petition, the appellant/husband had filed one more petition for custody i.e. petition No. D-27/2012 which was dismissed on 29/08/2013. The appeal against the said decree bearing First Appeal No. 283/2014 also came to be dismissed on 15/04/2015. On new cause of action, the appellant/husband filed a petition No. D-13/2016. In the meantime, the appellant/husband also filed a Writ Petition No. 6117/2015 for access of the minor daughter Bhumika, which came to be dismissed by this court by an order dated 21/03/2016. 7. There was an issue of maintainability in petition No. 13/2016 before the trial Court. The trial Court has recorded a negative finding with regard to maintainability of the petition on the ground that the appellant/husband has failed to show a fresh cause of action for filing this petition. 7. There was an issue of maintainability in petition No. 13/2016 before the trial Court. The trial Court has recorded a negative finding with regard to maintainability of the petition on the ground that the appellant/husband has failed to show a fresh cause of action for filing this petition. The learned Family Court also observed that as during the pendency of the petition, the respondent/wife transferred to Chandrapur and the minor is in her custody, therefore, the Family Court is seized to have territorial jurisdiction from 23/06/2016, the date she has shifted to Chandrapur. Ultimately, the Family Court dismissed the petition for want of maintainability. 8. With regard to point of maintainability of the petition for want of fresh cause of action, learned counsel for the appellant/husband brought to our notice the judgment of the Hon'ble Apex Court in the case of Ashish Ranjan Vs. Anupma Tandon and anr. C2010') 14 SCC 274 wherein in paragraph No. 18 the Hon'ble Court noted that "It is a settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned." 9. With regard to the territorial jurisdiction of the Family Court, Nagpur, both the learned counsel are at ad idem that the Family Court, Nagpur has the jurisdiction to try the petition given the facts that at the time of filing the petition the respondent and minor daughter Bhumika were residing in Nagpur. Since the respondent is in Government Service, she was transferred to Chandrapur during the pendency of the petition No. D-13/2016, the Family Court, Nagpur does not lose its territorial jurisdiction. 10. Since the respondent is in Government Service, she was transferred to Chandrapur during the pendency of the petition No. D-13/2016, the Family Court, Nagpur does not lose its territorial jurisdiction. 10. Considering the settled legal position with regard to the recurring cause of action for the custody of a child and what is material, is the paramount welfare of the child, and considering the consensus between both the counsel with regard to the territorial jurisdiction of the Family Court, Nagpur to deal with the petition we allow the Family Court Appeal No. 44/2018 and restore the petition No. D-13/2016 to the file of Family Court, Nagpur to its original number with the directions to the learned Judge, Family Court, Nagpur to decide the same in accordance with law as expeditiously as possible preferably within a period of one year from the date of communication of this order. 11. It is pertinent to note here that the petitioner has filed D-13/2016 petition for the custody of the minor daughter u/s 6 of the Gaurdians and Wards Act, 1890. In our view the petition for the custody of minor daughter by a father, the natural guardian, would not be maintainable under the said Act as the purpose and object of the said Act is different. The petitioner is at liberty to seek amendment to the petition and substitute the appropriate provision of law for the custody of the minor. 12. Having regard to the issues involved in both these petitions are the same, i.e., the custody/access of the minor daughter Bhumika, in our considered opinion, EC.A. No. 45/2017 arose out of the M.C.A. No. 11/2016 can be disposed of with a liberty to the appellant/husband to move a fresh application, if so advised, in the petition No. D-13/2016. Accordingly, the F.C.A. No. 45/2017 is disposed of with the aforesaid liberty. 13. The parties to appear before the Family court, Nagpur on 05/04/2021. 14. R. & R be sent back immediately. 15. In the meantime, the arrangement for access of the daughter - Bhumika as fixed by this Court vide order dated 18/12/2020 passed in F.C.A. No. 45/2017 would be continued, without prejudice to the rights of the parties. 16. Thus, F.C.A. No. 44/2018 is allowed and F.C.A. No. 45/2017 is disposed of with liberty as granted above. The parties shall bear their own costs.