IMPORTANT POINT
The welfare of the child is the crucial consideration in custody disputes, and the court must assess the child's desire, the environment for proper upbringing, and the parent's ability to care for the child.

ORDER :

1. Though the matter was listed in ‘Fresh’ category, the matter was heard finally today itself.

2. This writ petition has been filed under Section 226 and 227 of the Constitution of India claiming the following reliefs:-

“that this writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction in the nature thereof thereby:-

A. the impugned order dated 19.01.2024 (Ann.3) may kindly be quashed and set aside.

B. The applications of the petitioner (Ann.2) may kindly be ordered to be allowed.

C. The whole proceedings pursuant to the application (Ann.1) filed by the respondent No.1, in the facts and circumstances of the case may kindly be declared as void ab initio.

D. The respondent No.1 and his family members or any other associates, may kindly be restrained from taking any action against the petitioner so as to take back the custody of minor Pranay Khatod from the petitioner in any manner whatsoever.

E. The Principal of the respondent No.2 School may kindly be restrained from taking any steps in regard custody of the minor child Pranay Khatod from the petitioner, in pursuance of the impugned order dated 19.01.2024 (Ann.3).

F. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner.

G. Writ petition filed by the petitioner may kindly be allowed with costs.”

3. Brief facts of the case are that the marriage between the petitioner and respondent no. 1 was solemnized as per Hindu rituals at Bikaner on 16.02.2010 and two children, namely Pranay Khatod, aged 11 years and Mahi Khatod, aged 3 years, have been born out of the wedlock. Due to the ill-treatment of the petitioner and her children by the respondent no. 1 and his family, the petitioner along with Mahi Khatod, left the place and went to her parents’ house and after sometime, managed to take Pranay Khatod to her parents’ house and, both the children have been continuing their studies in Bikaner.

4. Thereafter, respondent no. 1 filed an application under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the ‘Act of 1890’) on 08.01.2024 (Annexure-1) before the Additional District Judge No. 1, Nagaur (Rajasthan) seeking directions to grant custody of the child, Pranay to the Principal of respondent school, L.K. Singhania Education Centre, Gotan, since the child had been studying. In response to this, the petitioner filed separate applications on 19.01.2024 (Annexure-2) under Section 9 and 12 of the Act of 1890. The learned Trial court vide order dated 19.01.2024 (Annexure-3) allowed the application of the respondent no. 1 and directed that the custody of the minor child, Pranay Khatod, be given to the Principal of the respondent school, as an interim measure. Thus, aggrieved of the order dated 19.01.2024 (Annexure-3), the petitioners have preferred this writ petition.

5. Learned counsel for the petitioner submits that the learned Trial court has committed an error in hearing the application filed by the respondent No.1 as the learned Trial court lacks the jurisdiction as per Section 9 of the Act of 1890. He further submits that only the court which is situated where the minor ordinarily resides i.e. at Bikaner and has jurisdiction and not Nagaur. Thus the filing of the application by respondent No.1 deserves to be dismissed.

6. Learned counsel for the petitioner also submits that the application is filed by the respondent No.1 to harass the petitioner and her son and that, respondent No. 1 has stated wrong facts in the application filed by him that he is worried for the safety and welfare of his son Pranay however the respondent No 1 wishes to take back the custody of the minor son and harass him. He also submits that Pranay does not wish to reside with respondent No.1 his father as respondent No.1 beats him and harasses him which has a negative impact on the health of the minor son Prana