Rajasthan High Court - Jodhpur
Arvind Kishore vs Neha Mathur on 20 January, 2020
Equivalent citations: AIRONLINE 2020 RAJ 462
Bench: Sangeet Lodha, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 3220/2018
Dr. Arvind Kishore S/o Dr. Basant Kishore, Aged About 38 Years,
R/o Ajmera Garden, Kings Road, Ajmer Road, Jaipur (at Present
residing at C/o 341 E Main St, San Jacinto, CA 92583, United
States of America (USA)
----Appellant
Versus
Smt. Neha Mathur D/o Prem Narain Mathur, Aged About 36
Years, W/o Dr. Arvind Mathur, R/o Ward No. 39, House Number
B-2/89, Rajmata Sudershna Nagar, Bikaner.
----Respondent
For Appellant(s) : Mr. Prabhjit Jauhar with Ms. Tara
Narula
For Respondent(s) : Mr.Parvez Khan Moyal
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 20th January, 2020 Per Hon'ble Mr. Sangeet Lodha,J.
1. This appeal is directed against order dated 10.1.18 passed by the Judge, Family Court No.1, Bikaner in Misc. Case No.788/16, whereby an application preferred by the respondent under Section 7, 10 of Guardians and Wards Act, 1890 (for short "the Act"), for appointing herself as guardian of her minor son, has been allowed.
2. During the pendency of the appeal, the appellant has filed an application under Section 12 of the Act, seeking visitation rights to his minor child Anay Kishore, which is being contested by the respondent by filing a reply thereto. However, with the consent of (Downloaded on 20/01/2020 at 08:54:01 PM) (2 of 12) [CMA-3220/2018] learned counsel appearing for the parties, the matter is finally heard at this stage.
3. The facts relevant are that the marriage between the appellant and the respondent was solemnized on 27.5.10, at Bikaner. Out of the wedlock, their son Anay Kishore was born on 21.5.11 at California, USA. Indisputably, the child Anay Kishore is citizen of USA and had been residing there since his birth. It is alleged that on account of the appellant indulging in illicit relationship, cruel treatment and his quarrelsome and stubborn behaviour, the respondent left the company of the appellant and came back to India on 13.11.13 alongwith the child Anay Kishore.
4. The respondent preferred an application before the Family Court No.1, Bikaner, for appointing her as guardian of her minor son Anay Kishore. The respondent averred that ever since return to India, she alone is maintaining the child and taking overall care of him. The appellant, who is indulged in 'eat, drink and be merry' culture has never even cared to inquire about well being of the child. The respondent alleged that the appellant is not fit to be guardian of the minor child and therefore, taking into consideration overall interest and welfare of the child, she deserves to be appointed as his guardian. The respondent claimed that after coming back to India from USA, she is residing with the child at Bikaner and therefore, the Family Court at Bikaner has jurisdiction to hear the application.
5. On the application being filed as aforesaid by the respondent through her counsel Mr. S.P. Goyatan on 14.10.16, vide order dated 15.11.16 passed by the Family Court, notice was directed to be issued to the appellant herein, which was sent through registered AD Post. Notices issued were obtained from the Court (Downloaded on 20/01/2020 at 08:54:01 PM) (3 of 12) [CMA-3220/2018] on 26.11.16 on behalf of the respondent by her counsel Mr. S.P. Goyatan. As per the postal receipts available on record, the notices were dispatched by registered AD on 9.12.16, on both the addresses of the appellant i.e. USA address and Jaipur address. The AD receipt of the notices dispatched to Jaipur address of the appellant, as received by the Family Court, does not bear signature of the person receiving the registered post. Be that as it may, vide order dated 6.2.17, the Family Court directed the respondent to file the report regarding the service of the notice sent by the registered AD post at Jodhpur (sic Jaipur) address of the appellant as also to file an affidavit regarding the notice alleged to have been sent at California address of the appellant. No delivery report or affidavit as directed by the Court appears to have been filed by the respondent. However, keeping in view the fact that 2½ months had already lapsed since dispatch of the notices to the appellant by the registered post, on the basis of the postal receipt filed, the service upon the appellant was treated as complete and the order proceeding ex parte was passed against him and the matter was fixed for evidence of the respondent.
6. As per order sheet dated 4.4.17 of the Family Court, the appellant's father preferred two applications; one to permit him to appear on behalf of the appellant herein and another under Order VII Rule 11 read with Section 151 CPC, seeking rejection of the petition. However, a perusal of the record reveals that besides the said applications, one more application was filed on behalf of the counsel for the appellant to permit him to appear on behalf of the appellant. However, noticing the absence of the appellant, the said applications were directed to be kept in "D" part of the record and (Downloaded on 20/01/2020 at 08:54:01 PM) (4 of 12) [CMA-3220/2018] the affidavits filed on behalf of the respondent in support of her case, were taken on record.
7. On 1.6.17, neither the appellant nor the respondent was present, however, the presence of the learned counsel appearing on their behalf was recorded. On behalf of the appellant, yet another application was filed to permit him to appear through his counsel. The matter was adjourned for reply to the application and arguments thereon.
8. On 25.8.17, a reply to the said application was filed on behalf of the respondent and the matter was adjourned for arguments.
9. On 31.8.17, Mr. Naresh Goyal, Advocate, filed Vakalatnama on behalf of the appellant, which was directed to be kept in "D" part, however, his arguments on the application preferred were heard. The Court while noticing the absence of the appellant herein despite ex parte proceedings, vide order dated 16.9.17, rejected the application as not maintainable.
10. The Court observed that the application preferred by the appellant herein, could be considered only after his personal appearance. Aggrieved by the order dated 16.9.17, the appellant preferred S.B.C.Writ Petition No.15238/17 before this Court.
11. On 2.11.17, the Court recorded the statement of the respondent Neha Mathur and the matter was kept for final arguments. After hearing the arguments of the respondent, the petition filed has been allowed by the Court, as prayed for. Hence, this appeal.
12. Learned counsel appearing for the appellant contended that the order impugned has been passed by the Family Court without giving an opportunity of hearing to the appellant in utter violation (Downloaded on 20/01/2020 at 08:54:01 PM) (5 of 12) [CMA-3220/2018] of principles of natural justice. Learned counsel submitted that the Family Court knowing fully well that aggrieved by the order dated 16.9.17, a writ petition preferred by the appellant was pending consideration before this Court, proceeded to pass the impugned final order, without even waiting for the decision of the said writ petition. Learned counsel submitted that it was brought on record by the appellant vide application seeking permission to represent through counsel as also by way of an application under Order VII Rule 11 CPC that the child is born at California and permanent citizen of USA and further that the Superior Court of California had already passed an order for custody of the child in favour of the appellant and thus, the Family Court, Bikaner, has no jurisdiction to decide the matter pertaining to custody of the child, who is citizen of California, but while noticing the contention of the appellant, the same has been rejected by the Court observing that the appellant herein has not produced the certified copy of the said decision of Foreign Court on record and proved the same, whereas no such opportunity was ever extended by the Court to the appellant. Learned counsel submitted that the Family Court has failed to extend fair opportunity to the appellant inasmuch as while the respondent was permitted to appear through her counsel from very beginning, the prayer made on behalf of the appellant in this regard, has been rejected in cursory manner. Learned counsel further contended that admittedly, the minor child is residing at Hyderabad for last more than 5 years and thus, by virtue of provisions of Section 9 of the Act, the application in respect of guardianship of the person of the minor was maintainable only before the District Court of Hyderabad and thus, the application was liable to be rejected or returned to the respondent for proper (Downloaded on 20/01/2020 at 08:54:01 PM) (6 of 12) [CMA-3220/2018] presentation. Drawing the attention of the Court to the Para (C) of additional reply to the appeal filed by the respondent, learned counsel submitted that the fact that minor son of the parties is studying in CGR International School, Hyderabad, stands specifically admitted by the respondent. Relying upon the decision of this Court in Sanjay Agarwal Vs. Smt. Krishna Agarwal : AIR 2008 Raj. 194 and decisions of the Delhi High Court in Amrit Pal Singh Vs. Jasmit Kaur: ILR (2006) I Delhi 717 and Paul Mohinder Gahun Vs. Selina Gahun: 2006 (90) DRJ 77, learned counsel contended that the application preferred was liable to be rejected for want of territorial jurisdiction. Learned counsel submitted that the respondent has deliberately concealed the factum of decisions of the Superior Court of California as also the fact that the minor child Anay Kishore is citizen of California. The respondent also concealed the fact that she alongwith her minor child is residing at Hyderabad and deliberately made a false statement before the Court that the child is studying in a school at Bikaner and thus, the application preferred was liable to be rejected only on this count. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath and Ors.:(1994) 1 SCC 1. Learned counsel submitted that it is well settled that the residence must be lawful and voluntary. If a man stays in the country in breach of immigration laws, his presence there does not constitute ordinary residence and thus, in no manner, any place in India could be considered to be the ordinary residence of the minor child, who is citizen of USA. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter of Yogesh Bhardwaj vs. State of U.P. & Ors.: (1990) 3 SCC 355. (Downloaded on 20/01/2020 at 08:54:01 PM)
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13. On the other hand, learned counsel appearing for the respondent submitted that if the appellant was aggrieved by the proceeding ex parte against him, nothing prevented him to make an appropriate application before the Family Court for setting aside the ex parte proceedings and avail the opportunity of hearing. Learned counsel would submit that the appellant having failed to avail the appropriate remedy available under the law, cannot raise any grievance regarding the order passed by the Family Court directing proceeding ex parte against him. Learned counsel submitted that the marriage between the parties was solemnized at Bikaner and the respondent was not subject to jurisdiction of the Superior Court of California and therefore, the judgment and decree passed by the Foreign Court ex parte are null and void and not enforceable. Drawing the attention of this Court to the order impugned passed by the Family Court, learned counsel submitted that the issue with regard to validity and enforceability of the decision of the Foreign Court, has been appropriately dealt with by the Court and the conclusion arrived at in conformity with the provisions of Section 13 and 14 CPC, cannot be faulted with. Learned counsel submitted that overall growth and grooming of the child being of paramount consideration, the order impugned passed by the Family Court taking into consideration all the relevant aspects, does not warrant any interference by this Court. In support of the contention, learned counsel relied upon a decision of the Supreme Court in Kanika Goel vs. State of Delhi & Anr.: (2018) 9 SCC 578. Learned counsel submitted that in the matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well being of the spouses and the welfare of the (Downloaded on 20/01/2020 at 08:54:01 PM) (8 of 12) [CMA-3220/2018] offsprings of the marriage and thus, keeping in view the interest and welfare of the child, the jurisdiction exercised by the Court in respect of the child who is foreign citizen, also cannot be faulted with. In support of the contention, learned counsel relied upon a decision of Madras High Court in Ramkrishna Balasubramanian vs. Ms. Priya Ganesan: AIR 2007 Mad 210.
14. We have considered the rival submissions of the learned counsel for the parties and perused the material available on record.
15. Indisputably, the provisions of Code of Civil Procedure, 1908 and of any other law for time being in force are applicable to the suit and proceedings other than proceedings under Chapter IX of Code of Criminal Procedure before the Family Court. It is not in dispute that the appellant at the relevant time was residing at California, USA and was not available at the address of Jaipur as mentioned in the application filed. It is also not in dispute that nothing was brought on record showing that notice sent to California was served upon the appellant. The respondent was specifically directed to file an affidavit regarding the dispatch of notice to the appellant at California address by registered post but no such affidavit was ever filed by the respondent. The notice sent at Jaipur address was apparently not served upon the appellant personally, however, it appears that the same was served upon his father and consequently, he appeared before the Court and sought permission to appear on behalf of the appellant as next friend.
16. It is pertinent to note that the respondent in the first instance, had filed the application for appointing her as guardian of her minor child through her counsel Mr.S.P.Goyatan, Advocate. A perusal of the proceedings as noticed hereinabove, makes it (Downloaded on 20/01/2020 at 08:54:01 PM) (9 of 12) [CMA-3220/2018] abundantly clear that the Family Court at the very threshold permitted the respondent to be represented by a legal practitioner without there being any such application made on her behalf.
17. It is true that after coming to know about the proceedings pending before the Family Court, the appellant instead of insisting for appearance through the legal practitioner by way of various applications made, should have personally appeared before the Court as directed but then, when the respondent had already been permitted to appear through legal practitioner, the Family Court was not justified in directing the applications preferred on behalf of the appellant in this regard being kept in "D" part and proceed against him ex parte. Strangely enough, an application preferred by the appellant seeking representation through legal practitioner was later considered by the Family Court on merits and even the legal practitioner appearing on his behalf was permitted to argue the application. Suffice it to say that on the one hand, the Family Court declined to take cognizance of the appearance of the counsel appearing on behalf of the appellant, but at the same time, the application preferred on his behalf for representation through legal practitioner was permitted to be pursued by the counsel appearing on his behalf. On the facts and in the circumstances of the case, in the considered opinion of this Court, the Family Court knowing fully well that the appellant is residing at California, USA and it was not possible for him to remain present before the Court on each date of hearing, should have permitted to him to appear through legal practitioner moreso when the respondent had already been permitted to be represented through her counsel. The respondent could have been directed to remain personally present before the Court as and when required. In this (Downloaded on 20/01/2020 at 08:54:01 PM) (10 of 12) [CMA-3220/2018] view of the matter, in the considered opinion of this Court, the Family Court has seriously erred in denying the equal opportunity to the appellant for representation through legal practitioner.
18. A perusal of the application preferred on behalf of the appellant under Order VII Rule 11 CPC, which was also directed to be kept in 'D' part of the record by the Family Court, reveals that all the necessary facts regarding the decision rendered by Superior Court of California in respect of the custody of the minor child Anay Kishore were set out therein but since, the application was not even entertained and the appellant was not permitted to participate in the proceedings, he could not have produced the relevant documents on record. Surprisingly enough, the Family Court while taking into consideration the facts set out in the application under Order VII Rule 11, which was directed to be kept in "D" part and was not intended to be taken into consideration, proceeded to examine the effect of the said decision of the Foreign Court in light of the provisions of Section 13 and 14 CPC and proceeded to record the finding as aforesaid without extending an opportunity of hearing to the appellant.
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 hear 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 (Downloaded on 20/01/2020 at 08:54:01 PM) (11 of 12) [CMA-3220/2018] 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 studying 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.
20. Obviously, on account of the proceedings ex parte, the issue with regard to the welfare and interest of the minor child, has also been decided by the Family Court on the basis of the statement of the appellant in cursory manner.
21. In view of the discussion above, in the considered opinion of this Court, the order impugned passed by the Family Court denying the appellant a fair opportunity to defend the matter, is not sustainable in the eyes of law and the matter deserves to be remanded to the Family Court for decision afresh, after giving an opportunity of hearing to both the parties in accordance with law.
22. In the result, the appeal succeeds, it is hereby allowed. The order impugned dated 10.1.18 passed by the Judge, Family Court No.1, Bikaner in Misc. Case No.788/16 is set aside. The order dated 2.3.2017 passed by the Family Court, directing proceeding (Downloaded on 20/01/2020 at 08:54:01 PM) (12 of 12) [CMA-3220/2018] ex parte against the appellant, is also set aside. The Family Court 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.
26. The parties shall remain personally present before the Family Court, Bikaner on 7.2.2020 and thereafter, as and when called for.
No order as to costs.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
Aditya/-
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