IMPORTANT POINT
The court emphasized the importance of procedural fairness, substantive justice, and considering the welfare of the child in guardianship and custody matters.

JUDGMENT

Anoop Kumar Mendiratta, J. (Oral)

CM APPL.64275/2023 (for exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of.

MAT APP.(F.C.) 367/2023, CM APPL.64274/2023 (stay)

Issue notice. Ms.Malavika Rajkotia, Advocate appears on advance notice and accepts notice.

Submissions have been made by Mr.Prashant Mendiratta, Advocate on behalf of the appellant and Ms.Malavika Rajkotia, Advocate on behalf of the respondent.

1. An appeal under Section 19 of the Family Courts Act, 1984 has been preferred by the appellant challenging the order dated November 21, 2023 passed by the learned Judge, Family Court (West), Tis Hazari Courts, Delhi in Guardianship Petition No.54/2018, whereby the memo of withdrawal filed by the appellant was dismissed and the respondent was transposed as petitioner, in pending guardianship proceedings.

2. Factual Matrix

(i) Shorn of unnecessary details as noticed in the impugned order, the marriage between the parties was solemnized on April 22, 2006 in accordance with Hindu rites and ceremonies. A girl child was born out of the wedlock on February 11, 2013 and is presently aged about 10 years and 10 months. The respondent allegedly left the matrimonial home on March 10, 2018 along with the child and preferred a petition under section 13(1)(ia) of Hindu Marriage Act, 1955 seeking dissolution of marriage on March 23, 2018.

(ii) Thereafter in May 2018, appellant filed a guardianship petition under Sections 7 & 25 of the Guardians and Wards Act, 1890 (GP No.54/2018) for restoration of custody of child back to him. Also, an application was preferred by the appellant under Section 12 of the Guardians and Wards Act, for interim custody of the child.

(iii) Vide order dated March 26, 2019 passed by the learned Family Court, appellant father was given overnight custody of the child for first and third Friday of every month till evening of following Sunday, which was further modified vide order dated April 19, 2021.

(iv) The respondent mother was permitted to change the school of the child in her best interest vide order dated March 22, 2023. It is pertinent to note that at the stage of passing of order dated March 22, 2023 by the learned Family Court, the temporary custody of the child was with the appellant father which was directed to be handed over to the respondent mother on March 22, 2023.

(v) Appellant challenged the order dated March 22, 2023 before the Delhi High Court. Vide order dated March 24, 2023, he was directed to handover the custody of the child. The matter was further taken by the appellant to the Hon'ble Apex Court wherein the directions were issued for handing over of the child to the respondent mother but the same has not been complied with by the appellant. As such, the custody of child is still stated to be with the appellant father. Further, it is pointed out that the child does not appear to be going to school since March, 2023, impacting her studies.

(vi) At the fag end of the trial as the respondent's cross-examination was almost over, an application was preferred by the appellant for withdrawing the guardianship petition. The application was opposed on behalf of the respondent taking a stand that the appellant is trying to take advantage of his own wrong after unauthorizedly keeping the child and in order to defeat the rights of the respondent. Also, an application was preferred on behalf of the respondent for transposing her as petitioner since she stood deprived of the custody of the child.

(vii) In response to the service of transposition application upon the appellant, he appeared in the court on October 26, 2023 and claimed that he is not appearing in the guardianship petition but only in connected HMA divorce petition filed by the respondent on the grounds of cruelty. The appellant also filed an e-mail dated November 03, 2023 stated to have been sent by him on official e- mail ID of the Court on November 18, 2023 and also stated that he did not wish to file the reply