Supreme Court - Daily Orders
Arvind Kishore vs Neha Mathur on 22 March, 2022
Bench: Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.2211/2022
(Arising out of SLP(C) No.3234/2020).
ARVIND KISHORE Appellant(s)
VERSUS
NEHA MATHUR Respondent(s)
WITH
CONMT.PET.(C) No. 719/2021
in Civil Appeal No.2211/2022
(Arising out of SLP(C) No.3234/2020)
O R D E R
Leave granted.
This appeal challenges the judgment and order dated 20- 01-2020 passed by the High Court of Judicature for Rajasthan at Jodhpur in DBCMA No.3220/2018.
The issue which we intend to consider being not concerned with the merits of the controversy, we need not set out all the factual aspects.
Signature Not Verified In any case, the facts are dealt with byDigitally signed by Indu Marwah Date: 2022.03.24 the High Court in detail in the judgment and order which is 16:00:22 IST Reason: presently under challenge.
2While allowing the appeal preferred by the respondent- mother, the High Court made following observations:
“19. Coming to the jurisdiction of the Family Court, Bikaner to entertain the application preferred by the respondent seeking an order appointing her as guardian of the minor child Anay Kishore, it is noticed that, the question with regard to the territorial jurisdiction of the Family Court to her and decide the application filed was never raised before it, obviously for the reason that the appellant was proceeded ex parte and he had no opportunity to raise objection in this regard. But the fact remains that before the Family Court in the application filed, the respondent has specifically averred that the minor child is ordinarily residing at Bikaner and therefore, the Family Court at Bikaner has the jurisdiction to hear the application. In support of the submissions made, the respondent had produced on record the certificates of merit and receipts of the fee deposited issued by Arjun Preparatory School, Bikaner on record. To the contrary, in the reply to the appeal filed before this Court, the respondent has specifically averred that for last five years, minor child Anay Kishore is studing in CGR International School, Hyderabad. Thus, apart from the issue as to whether the minor child Anay Kishore being a citizen of USA, can at all be treated to be ordinary residence of any place in India, the question with regard to his being ordinary residence of Bikaner or Hyderabad, also needs to be gone into by the Family Court so as to decide the issue with regard to its own jurisdiction to entertain the application filed on behalf of the respondent.
…
22. In the result, the appeal succeeds, it is hereby allowed. The order impugned dated 10.01.2018 passed by the Judge, Family Court No.1, Bikaner in Misc. Case No. 788/16 is set aside. The order dated 02.03.2017 passed by the Family Court, directing proceeding ex parte against the appellant, is also set aside. The Family Court 3 shall decide the application preferred by the respondent afresh, after giving an opportunity to the respondent to defend the application, in accordance with law.
23. As the respondent has already been permitted by the Family Court to be represented by the legal practitioner, the appellant shall also be permitted to be represented through legal practitioner. The application preferred in this regard by the appellant shall stand allowed accordingly.
24. The Family Court shall first decide the application preferred by the appellant under Order VII Rule 11 CPC as also the question of territorial jurisdiction of the Court to entertain the application, if any raised by the appellant and shall proceed to decide the main application preferred by the respondent on merits thereafter, if occasion arises.
25. The appellant shall be at liberty to file an application before the Family Court seeking visitation right to minor child Anay Kishore.
Needless to say that the application if any filed, shall be heard and decided by the Family Court in accordance with law.” As has been observed by the High Court, the minor child Anay Kishore is studying in CGR International School, Hyderabad. As the record also indicates, the respondent-mother is presently stationed at Hyderabad. Without getting into the rival contentions touching upon the merits, in our view, the interest of justice would demand that the matter be transferred from Bikaner to Hyderabad.
We are conscious that no transfer application has been moved by the appellant-father but considering the fact that welfare of the child would demand early resolution of the 4 dispute regarding custody and visitation, we exercise suo motu power and transfer the proceedings being Misc. Case No. 788 of 2016 to the Family Court, Hyderabad.
The Court at Bikaner is directed to transmit the record immediately to the transferee Court.
In order to facilitate early disposal of the matter, the parties are directed to appear through their advocates before the transferee Court on 25.04.2022, whereafter the matter shall be proceeded with by the transferee Court.
Let copy of this order be sent to the concerned courts for compliance.
We have been apprised that other legal proceedings between the parties are still pending at Bikaner. Those proceedings can certainly go on at Bikaner without, in any way, being influenced by the present order passed by this Court.
This order has been passed only with a view to avoid any discomfort if interaction with the minor is required to be undertaken by the Family Court or the child counsellor appointed by the Court.
Needless to say that while resolving the matter, the transferee Court shall have the advantage of the child 5 counsellor or family counsellor as it deems appropriate. The proceedings shall be considered and dealt with purely on its own merits without being influenced by any of the observations made during the course of the proceedings by the Trial Court, High Court or by this Court.
With these observations, the appeal stands disposed of. Since we have disposed of the matter. No orders are called for in the contempt petition which is accordingly closed.
...............................J (UDAY UMESH LALIT) .
………............................J (S. RAVINDRA BHAT) ………............................J (PAMIDIGHANTAM SRI NARASIMHA) New Delhi, March 22, 2022.
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ITEM NO.1 COURT NO.2 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No.3234/2020 (Arising out of impugned final judgment and order dated 20-01- 2020 in DBCMA No.3220/2018 passed by the High Court Of Judicature for Rajasthan at Jodhpur) ARVIND KISHORE Petitioner(s) VERSUS NEHA MATHUR Respondent(s) (IA No. 116541/2020 - APPROPRIATE ORDERS/DIRECTIONS IA No. 54899/2020 - APPROPRIATE ORDERS/DIRECTIONS IA No. 139597/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 9443/2021 - EARLY HEARING APPLICATION IA No. 61671/2020 - EXEMPTION FROM FILING AFFIDAVIT IA No. 54901/2020 - EXEMPTION FROM FILING AFFIDAVIT IA No. 20294/2020 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 139601/2021 - EXEMPTION FROM FILING O.T. IA No. 112389/2021 - MODIFICATION) WITH CONMT.PET.(C) No. 719/2021 in SLP(C) No. 3234/2020 (XV) (FOR ADMISSION) Date : 22-03-2022 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA For Appellant(s) Mr. Shadan Farasat, AOR Mr. Bharat Gupta, Adv.
Ms. Tanvi Tuhina, Adv.
For Respondent(s) Mr. Mrinmay Bhattmewara, Adv.
Mr. Parvez Khan Moyal, Adv.
Mr. Manish Dutt Sharma, Adv.
Mr. Vivek Gupta, AOR 7 UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is disposed of and contempt petition is closed in terms of the signed order.
Pending applications, if any, shall stand disposed of.
(INDU MARWAH) (VIRENDER SINGH) COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)