Hon’ble Pankaj Mithal, J.—Heard Smt. Abha Gupta, learned counsel for the plaintiff-appellant and Shri P.K. Tripathi, learned counsel appearing for defendant-respondent No. 1, the main contesting party, both of whom consented for the final disposal of the appeal.

2. Plaintiff-appellant Smt. Bhagwati Pandey has preferred this appeal under Section 47 of the Guardians and Wards Act, 1890 (hereinafter for short Act) against the order of the Family Court dated 13.10.09 directing for the return of the plaint for presentation before the proper Court of jurisdiction.

3. The plaintiff-appellant claims to be a legally wedded wife of defendant-respondent No. 1 Shyam Narain Pandey. She is said to have married him on 22.1.93 at Kanpur. It is also said that from the said wedlock a son Shubham @ Himanshu was born to them on 15.3.94 at Haldwani. He was removed from the custody of the plaintiff-appellant on 10.5.1994 at a tender age of one month 25 days while she was living at Kanpur.

4. The plaintiff-appellant instituted Original Suit No. 89/7 of 2009 before the Family Court at Kanpur for mandatory injunction against the defendant-respondent No. 1 and arraying her minor son and two other persons as the other defendants in the suit. She sought mandatory injunction directing the defendants to the suit to handover the custody of her minor son to her and for a mandatory injunction to have the D.N.A. test of the plaintiff-appellant as well as her husband defendant-respondent No. 1.

5. The Court munsarin on the presentation of the plaint of the aforesaid suit reported that from the plaint allegations itself it is apparent that the minor whose custody is being claimed is living at Bareilly and as such the Family Court at Kanpur lacks territorial jurisdiction.

6. The above report was objected to by the plaintiff-appellant by filing written objections dated 21.8.09 contending that as the child was removed from her custody at Kanpur, the Court has jurisdiction in the matter. Upon hearing the plaintiff-appellant on 5.10.09, the Family Court vide impugned order dated 13.10.09 held that as the minor is ordinary resident of district Bareilly, the Court at Kanpur has no territorial jurisdiction and directed for the return of the plaint to the plaintiff-appellant for presentation before the proper Court of jurisdiction.

7. The First Appeal From Order has been filed under Section 47 of the Act.

8. The order impugned has not been passed under the provisions of the Act and therefore, appeal under Section 47 of the Act is per se not maintainable.

9. Section 47 of the Act provides for appealable orders. It does not include any order passed by the Family Court directing for the return of the plaint of the original suit for presentation before proper Court of jurisdiction.

10. In view of above, this appeal under Section 47 of the Act is not maintainable.

11. Since the order impugned has been passed by the family Court, appeal if any against the same would lie to the Division Bench of the High Court under Section 19 of the Family Court Act, 1984.

12. However, as the order impugned is an order directing for the return of the plaint for presentation before proper Court of jurisdiction it is an order purportedly passed under Order VII Rule 10 C.P.C. against which First Appeal From Order is provided under Order XLIII Rule 1(a) C.P.C.

13. In view of fact that the order impugned is amenable to appeal the appeal is being treated as an appeal under Order XLIII Rule 1(a) C.P.C. and not one under Section 47 of the Act.

14. Under Section 6 of the Hindu Minority and Guardianship Act, 1956 the father is the natural guardian of a Hindu minor boy and in his absence it is the mother. It also provides that the custody of a minor, who has not completed the age of 5 years shall ordinarily be with the mother. Under the Hindu Law there are three classes of guardians of the person and property of a minor namely :

(i) Natural guardian;

(ii) Testamentary guardian; and

(iii) Guardian appointment und