Delhi High Court
Smt. Surbhi Khanna vs Shri Amit Khanna on 4 March, 2015
Author: Kailash Gambhir
Bench: Kailash Gambhir, I.S.Mehta
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 04.03.2015
+ MAT.APP.(F.C.) 112/2014
SMT. SURBHI KHANNA
..... Appellant
Through Mr. Rajan Khosla, Adv. for
Mr. Vivek Srivastava, Adv. along
with appellant in person.
versus
SHRI AMIT KHANNA
..... Respondent
Through Mr. Vijay Waghey & Ms. Manju
Bhatnagar, Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
04.03.2015 KAILASH GAMBHIR, J (ORAL)
1. By this petition, the appellant seeks to challenge the tenability of the order dated 21.02.2014 passed by the learned Family Court, North East District.
MAT.APP.(F.C.) 112/2014 Page 1 of 6
2. The petitioner has contended that the learned Family Court has failed to appreciate that she had filed a petition under Section 25 of the Guardians and Wards Act for the appointment/declaration of guardian and custody of minor child namely Master Daksh, aged about 5 years 2 months and the learned Family Court after placing reliance on Section 9 Clause (1) of the said Act has taken a view that the Court does not have the territorial jurisdiction because the ordinary place of residence of the minor is situated in the territorial jurisdiction of Ghaziabad District Court. Contention of the petitioner is that in her petition she had clearly stated that on the night of 20th April, 2012 the respondent gave beatings to her for not fulfilling his demand of dowry and threatened to do away with her and to remarry with a rich girl known to him and it is in this background that she had left the matrimonial home along with the minor child and reached the house of her mother on the same day. The petitioner in the petition also averred that on 15.05.2012, in the evening the respondent Nos.2 and 3 came to the house of her mother on the pretext of seeing minor son and with an excuse to provide some gifts, took the minor to the market but they did not return back and in this manner they virtually kidnapped the son of the petitioner. The petitioner immediately called the PCR and lodged the complaint against the MAT.APP.(F.C.) 112/2014 Page 2 of 6 respondents for illegally removing the custody of the child from her. The petitioner further submits that it is not in dispute between the parties that the mother of the petitioner is a resident of P-6, A-2, Dilshad Garden, Delhi and as per the allegations levelled by her in the petition she has claimed illegal removal of the custody of the minor child from the house of her mother which is well within the jurisdiction of the Family Court of North East District, Delhi.
3. Based on these submissions, the petitioner prays that directions be given to the learned Family Court, North East District to decide the petition preferred by her on merits. The present petition is opposed by Mr. Vijay Waghey, counsel appearing for the respondent. Counsel submits that learned Family Court has rightly held that under Section 9 it is the place of the residence of minor which will determine the jurisdiction of the present case. The husband of the petitioner is a permanent resident of Flat No.C-1 to C-4, Shalimar Garden, Extension-01, Sahibabad-7, Ghaziabad, U.P. which was the matrimonial house of the parties and where the minor child has also been residing. Counsel also submits that so far as the allegation of the petitioner that the minor child was illegally removed from her custody at P-6, A-2, Dilshad Garden, Delhi is concerned, the same is a disputed MAT.APP.(F.C.) 112/2014 Page 3 of 6 question of fact since the minor child was already in his custody.
4. Learned counsel for the petitioner has filed the petition under Section 9 of the Guardian and Wards Act, 1890 and prayed that the respondent be directed to hand over the custody of the male child namely Master Daksh to the petitioner as per Section 25 of the Guardianship Act. The prayer para of the said petition is reproduced as under:-
"It is therefore, most respectfully and humbly prayed that the respondent may kindly be directed to hand over the custody of male child namely Daksh aged about 5 years 2 months to the petitioner, as per the section 25 of the Guardianship and Wards 1890, in the interest of justice."
5. We may also reproduced Section 25 of the Guardian and Wards Act, 1890:-
"25. Title of guardian to custody of ward.--
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."MAT.APP.(F.C.) 112/2014 Page 4 of 6
6. The petitioner is the mother of the child and the respondent is the father of the child. Petition under Section 25 of Guardian and Wards Act has been filed by the petitioner not for the purpose of declaration of her being a guardian of the child as she continues to remain a guardian. Under Section 25 of the said Act, the petitioner has prayed for the return of the custody of the child which as per her was illegally removed from her custody on 20th April, 2012. This important aspect perhaps was overlooked by the learned Family Court and due to this reason the learned Family Court after placing reliance on Section 9 of the Guardian and Wards Act, 1890 held that it is a normal place of the minor child that will confer jurisdiction upon the Court. The said reasoning appears to this Court is perverse and illogical in view of the admitted facts of the present case where the petitioner has alleged that custody of the minor child was removed from her mother's house which indisputably is located within the jurisdiction of the said Court.
7. In the above circumstances, we set aside the order dated 21.02.2014 passed by the learned Family Court, North East District and direct the learned Family Court, North East District to decide the case of the parties on merits. Both the parties shall present themselves before the learned Family MAT.APP.(F.C.) 112/2014 Page 5 of 6 Court, North East District on 16th March, 2015.
8. Petition stands disposed of in the above terms.
KAILASH GAMBHIR (JUDGE) I.S.MEHTA (JUDGE) MARCH 04, 2015 km MAT.APP.(F.C.) 112/2014 Page 6 of 6