Rajasthan High Court - Jaipur
Smt. Asha Devi D/O Shri Chaturbhuj ... vs Kanhaiya Lal S/O Shri Heera Lal Gurjar on 21 January, 2019
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5590/2018
Smt. Asha Devi D/o Shri Chaturbhuj Gurjar, by caste Gurjar,
Resident of Rupahali, Tehsil Malpura, District Tonk (Raj.)
----Appellant
Versus
1. Kanhaiya Lal S/o Shri Heera Lal Gurjar, aged about 33 years,
by caste Gurjar, Resident of Mehandwas, Tehsil Phagi, District
Jaipur (Raj.)
....Applicant/Respondent
2. Shri Chaturbhuj Gurjar S/o Suwa Lal Gurjar, by caste Gurjar, Resident of Rupahali, Tehsil malpura, District Tonk (Raj.)
----Performa Respondent For Appellant(s) : Mr. Ajay Sharma For Respondent(s) : Mr. Chitrank Sharma with Mr. Sanjay Yadav, Adv.
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment 21/01/2019 D.B.Civil Misc. Application No.2462/2018:-
1. For the reasons mentioned in the application the delay in filing the appeal is condoned.
2. The application is allowed.
D.B.Civil Misc. Appeal No.5590/2018:-
1. We have heard learned Counsel for the parties.
2. Pooja @ Sonu and Nisha @ Mausam the two daughters aged 16 years and 13 years respectively whose custody has been granted to the respondent are present in person alongwith their (2 of 4) [CMA-5590/2018] maternal grand-father Shri Chaturbhuj. Respondent is also present in person.
3. Without there being substantive proceedings under the Hindu Marriage Act, 1955 on an application filed under Section 26 of the said Act, impugned judgment dated 31.07.2018 (wrongly typed as 31.07.2017) has been passed. Custody of the two daughters born to the appellant through the respondent has been directed to be handed over to the respondent.
4. The impugned order shows that the appellant never appeared before the learned Judge, Family Court. The appellant has not filed any application under Order 9 Rule 13 CPC praying for recall of the ex-parte judgment dated 31.07.2017.
5. The reason is obvious.
6. It is her illiteracy.
7. Keeping in view the age of the two daughters we have interacted with them. They are confident girls. The elder daughter is studying in Class X and younger one is class IX. Both of them are in the same schools. Name of the school is Government Girls Higher Secondary School, Malpura. The couple are residing separately since the year 2012. The children were earlier on living with their parents when both of them were living together. Since 2012 they are living happily with their mother who resides in her paternal house alongwith her brother and sister-in-law.
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8. Since the impugned judgment is an ex-parte judgment it would be futile to set aside the impugned judgment and remand the matter for adjudication after giving appellant an opportunity to place her version before the learned Judge, Family Court because as noted above, the elder daughter would attain the age of majority within two years and younger one within next five years.
In custody proceedings primacy has to be given to the interest of the children. It is also settled law that where the children are settled in a given environment they should not be uprooted from the environment.
9. Having interacted with the two daughters we find that they are being looked after properly in the house of their maternal grand-father. The respondent's assertion that his wife is living in adultery with one Laxminarayan is merely an assertion. During the course of our interaction with the two girls we asked whether they know any person by the name of Laxminarayan or he visits their house. The girls state that they have not heard of a person named Laxminarayan. This inspires confidence that Laxminarayan is not living with the appellant. As per the girls they live with their mother in the house of their maternal grand-father alongwith their maternal uncle and his wife.
10. Under the circumstances, we allow the appeal and set aside the impugned judgment dated 31.07.2018. However we grant respondent visitation rights to meet his two daughters. The appellant shall produce the two daughters in the Family Court No. 2, Jaipur on third Saturday of every month at 10.00 A.M. The learned Judge, Family Court would ensure that in the Counsellor's (4 of 4) [CMA-5590/2018] Room the father gets at least two hours to meet the daughters. Should the third Saturday be a holiday the interaction would be on the fourth Saturday.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ TN-Ngandhi/14 Powered by TCPDF (www.tcpdf.org)