Point of Law: Custody of minor child - Nomenclature of the petition under a particular provision does not effect the jurisdiction of the court, if the court has the power to exercise the jurisdiction by applying the correct provision of law.

JUDGMENT :

Heard Mr. P.J. Saikia, the learned senior counsel assisted by Ms. M. Nirola, the learned counsel for the petitioner and Mr. N. Dhar, the learned counsel appearing on behalf of the respondent.

2. This is an application under Section 227 of the Constitution of India challenging the proceedings, i.e. Misc. (G) Case No.59/2019 pending before the Court of the Principal Judge, Family Court, Kamrup (M) at Guwahati as well as the order dated 26.11.2019. Further to that, the petitioner has also sought for a direction to the Principal Judge, Family Court No.1, Kamrup (M) at Guwahati to consider and decide the petition No.1197/2019 before proceeding further in Misc. (G) Case No.59/2019.

3. The brief facts of the case is that the petitioner and the respondent were married on 18.04.2008 at Guwahati in accordance with the Hindu customary rites, rituals and ceremonies and the said marriage was also registered under the Special Marriage Act, 1954 vide Marriage Certificate No.690 dated 19.04.2008 by the Marriage Officer, Kamrup at Guwahati. Out of their wedlock, a female child was born to them on 27.06.2014 at Guwahati. On 06.10.2018, the respondent discovered that the petitioner and their daughter were not in the house and that having contacted the petitioner; she refused to return to Guwahati and took the minor daughter with her. At this stage, it may be relevant herein to mention that the respondent thereupon filed an application under Section 9 of the Hindu Marriage Act, 1955 (for short, the Act of 1955) before the Principal Judge, Family Court No.1, Kamrup (M) at Guwahati (for short, the trial court) for restitution of conjugal rights. The said proceeding was registered and numbered as F.C.(Civil) Case No.1112/2018. Vide an ex-parte judgment and decree dated 30.07.2019, the trial court allowed the Section 9 application for restitution of conjugal rights. During the pendency of the said application seeking restitution of conjugal rights, the respondent filed an application under Section 26 of the Act of 1955 praying for custody of the minor child namely, Avril Lahon. Upon filing of the said application, the Trial Court vide an order dated 28.03.2019, registered the said case for custody of the minor child under Section 7 of the Guardians and Wards Act, 1890 (for short, the Act of 1890) and issued summons to the petitioner. The said application was registered as Misc. (G) Case No.59/2019. On 07.06.2019, the petitioner filed her reply to the said application being Misc. (G) Case No.59/2019 contending inter-alia that the application was not maintainable under Section 26 of the Act of 1955 or under the Act of 1890. Further to that, it was also mentioned that there has been initiation of proceedings under Section 12 read with Sections 18, 19, 20, 21 & 22 of the Protection of Women from Domestic Violence Act, 2005 before the learned Metropolitan Magistrate (Mahila Court), Saket at New Delhi wherein there has been certain restraint orders being passed thereby restraining the respondent herein and his family members to take forceful custody of the petitioner’s daughter. It was mentioned that the petitioner had also filed the petition for dissolution of marriage by way of a decree for divorce under Sections 27 (1) (a) and 27 (1) (d) of the Special Marriage Act, 1954 (for short, the Act of 1954) on the ground that the respondent was guilty of incessant acts of cruelty meted out upon the petitioner. It was also mentioned that Section 2 (2) of the Act of 1955, the application seeking custody was not maintainable as the respondent belonged to the Schedule Tribe and as per the said Act of 1955 was per se is not applicable in the instant matter for which the said application seeking custody ought to be dismissed.

4. Pursuant to the said reply being filed to the application seeking custody of the minor child, the petitioner herein as respondent before the trial court, filed an application raising the question of maintainability of the petition bein