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2020 Supreme(Raj) 79
IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
Sangeet Lodha, Vinit Kumar Mathur, JJ.
Arvind Kishore - Appellants
Vs.
Neha Mathur - Respondent
D.B. Civil Misc. Appeal No. 3220 of 2018
Decided On : 20-01-2020
For the Appellant : Prabhjit Jauhar and Tara Narula
For the Respondents: Parvez Khan Moyal
The Family Court erred in denying the appellant a fair opportunity to defend the matter and in proceeding ex parte against him, and the Family Court did not have jurisdiction to entertain the application, as the child was a citizen of the USA and his ordinary residence was not in India.
Headnote:
GUARDIANSHIP - APPOINTMENT OF GUARDIAN - JURISDICTION - TERRITORIAL JURISDICTION - WELFARE OF THE CHILD - FAIR HEARING - REPRESENTATION THROUGH LEGAL PRACTITIONER - FAMILY COURT - GUARDIANS AND WARDS ACT, 1890 - SECTIONS 7, 10.
Fact of the Case:
The appellant and respondent were married in 2010 and had a son, Anay Kishore, in 2011 in California, USA. The respondent returned to India with the child in 2013, alleging that the appellant was indulging in illicit relationships and was cruel and quarrelsome. The respondent filed an application in the Family Court, Bikaner, seeking to be appointed as the guardian of the child, claiming that she was maintaining and caring for the child and that the appellant was not fit to be the guardian. The appellant, who was residing in California, USA, was served with notices by registered post, but it is unclear whether he received them. The Family Court proceeded ex parte against the appellant and appointed the respondent as the guardian of the child.
Finding of the Court:
The High Court found that the Family Court erred in denying the appellant a fair opportunity to defend the matter and in proceeding ex parte against him. The Court also found that the Family Court did not have jurisdiction to entertain the application, as the child was a citizen of the USA and his ordinary residence was not in India. The Court further found that the Family Court did not consider the welfare and interest of the child in a proper manner.
Issues: 1. Whether the Family Court erred in denying the appellant a fair opportunity to defend the matter and in proceeding ex parte against him. 2. Whether the Family Court had jurisdiction to entertain the application. 3. Whether the Family Court considered the welfare and interest of the child in a proper manner.
Ratio Decidendi: 1. The Family Court erred in denying the appellant a fair opportunity to defend the matter and in proceeding ex parte against him. The appellant was residing in California, USA, and it was not possible for him to remain present before the Court on each date of hearing. The Family Court should have permitted him to appear through a legal practitioner, especially since the respondent had already been permitted to be represented by a legal practitioner. 2. The Family Court did not have jurisdiction to entertain the application, as the child was a citizen of the USA and his ordinary residence was not in India. The respondent had specifically averred in the application that the child was ordinarily residing in Bikaner, but in the reply to the appeal, she averred that the child was studying in Hyderabad for the past five years. The Family Court should have decided the issue of its own jurisdiction before proceeding to decide the application on merits. 3. The Family Court did not consider the welfare and interest of the child in a proper manner. The Court relied on the statement of the respondent in a cursory manner and did not give the appellant an opportunity to present his case.
Final Decision: The High Court allowed the appeal, set aside the order of the Family Court appointing the respondent as the guardian of the child, and remanded the matter to the Family Court for decision afresh, after giving an opportunity of hearing to both the parties in accordance with law. The Court also directed the Family Court to decide the application preferred by the appellant under Order VII Rule 11 CPC and the question of territorial jurisdiction of the Court to entertain the application, if any raised by the appellant, before proceeding to decide the main application preferred by the respondent on merits.
JUDGMENT :
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 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 behavior, 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 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 t
