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2022 DIGILAW 2117 (RAJ)

Punam Gaur v. Bajrang Gaur

2022-07-26

KULDEEP MATHUR, SANDEEP MEHTA

body2022
ORDER 1. The respondent Bajrang Gaur filed suit (No.60/2018) under Section 25 of the Guardians and Wards Act, 1890 against his wife the appellant herein for claiming custody of their minor son master ’S’ in Family Court No.1, Jodhpur. Notices of the application were treated to have been served on account of refusal to accept attributed to the appellant. The suit preferred by the respondent was proceeded ex-parte and decreed by the learned Judge, Family Court No.1, Jodhpur vide judgment dated 16.04.2019. 2. The appellant herein moved the Family Court No.1, Jodhpur by way of an application under Order 9 Rule 13 CPC with a prayer for setting aside the ex-parte decree dated 16.04.2019 taking a specific plea that the Court at Jodhpur had no jurisdiction to hear and decide the suit because admittedly the minor child was residing with the appellant within the jurisdiction of District Judge, Merta. The appellant also pleaded that the notices which were returned with a remark of the appellant’s refusal, had been procured by practicing fraud. It was also alleged that on 05.10.2018, the learned Family Court fixed the next date in the case as 07.12.2019 which was then scored out and changed to 07.12.2018 and thus, there has been an impropriety in deciding the suit. The learned Family Court, however, rejected the application filed by the appellant under Order 9 Rule 13 CPC by order dated 18.03.2020. 3. The appellant has preferred appeal No.1212/2020 for assailing the order of rejection of her application under Order 9 Rule 10 CPC dated 18.03.2020. She has also challenged the judgment dated 16.04.2019 decreeing the suit filed by the respondent under Section 25 of the Guardians and Wards Act, 1890 by filing appeal No.1310/2020. 4. In the appeal No.1212/2020, the appellant has levelled serious allegations against the respondent of trying to forcibly take away the child master ’S’ from her custody. In support of this allegation, the appellant has annexed copy of the FIR No.338/2020 filed at the Police Station Merta City against the respondent and his relatives and so also the photographs of the incident wherein, the respondent and his companions are seen making an attempt of taking the child away with use of force. In support of this allegation, the appellant has annexed copy of the FIR No.338/2020 filed at the Police Station Merta City against the respondent and his relatives and so also the photographs of the incident wherein, the respondent and his companions are seen making an attempt of taking the child away with use of force. This Court is apprised that in proceedings under Section 125 Cr.P.C., a direction has been passed against the respondent of paying maintenance to the appellant and her child and that from the total dues of Rs.6,50,000/- odd, only an amount of about Rs.2,50,000/- has been paid to the respondent. This Court is also apprised that as many as four litigations arising out of the matrimonial strife between the appellant and the respondent are pending in the courts at Merta. There is no dispute on the aspect that the minor child was living with his mother at Merta when the suit under the Guardians and Wards Act came to be filed in the Court of Judge, Family Court No.1, Jodhpur. 5. Today the parties were called in the Court with the minor child Master ’S’. The child showed no intent whatsoever of even looking at his father, the respondent herein. 6. As per Section 9(1), exclusive jurisdiction to hear a suit for child custody under the Guardians and Wards Act is with the District Judge having jurisdiction in the place where the minor ordinarily resides. Therefore, on the face of record, the Family Court No.1, Jodhpur had no jurisdiction to try the custody suit filed by the respondent. 7. During the course of arguments, Shri Shah and Shri Choudhary, learned counsel representing the respondent, who is himself present in the Court frankly conceded that the ex-parte decree may be set aside and the suit may be transferred to the Court of the District Judge Merta for fresh adjudication as per law. 8. In view of the above submission, the impugned judgment dated 18.03.2020 and 16.04.2019 are quashed and set aside. The file of the original suit (No.60/2018) shall be transferred from the Family Court No.1, Jodhpur to the Family Court, Merta. The parties shall remain present in the Court of District Judge, Merta on 21.09.2022 where the proceedings of the custody application shall be undertaken afresh. The appellant shall be permitted to file reply and lead evidence. The file of the original suit (No.60/2018) shall be transferred from the Family Court No.1, Jodhpur to the Family Court, Merta. The parties shall remain present in the Court of District Judge, Merta on 21.09.2022 where the proceedings of the custody application shall be undertaken afresh. The appellant shall be permitted to file reply and lead evidence. In case, the respondent is desirous of leading additional evidence, he shall also be provided appropriate opportunity to do so. 9. The appellant shall be provided protection by the police officers concerned as and when required. 10. The appeals are allowed in these terms. Record be returned to the Family Court forthwith.