IMPORTANT POINT
Section 7 of Family Courts Act prevails over Section 9 of Guardians and Wards Act, 1890.

Suresh Kumar Kait, J.—Vide the present appeal, the appellant/husband has challenged the order dated 15.09.2017, passed in I.A.No.591 of 2017 in G.W.O.P.No.433 of 2017, whereby, the learned Additional Family Court, Hyderabad, dismissed the application of the appellant filed under Order 7 Rule 11 of CPC, praying the Court below to reject the main O.P. on the ground that it is hit by Section 9 of the Guardians and Wards Act, 1890.

2. The undisputed facts of the present case are that the respondent/wife went to USA in the year 2004 for her higher studies and completed her Masters in the year 2006 and secured employment in the US in January 2007 and her marriage was performed on 14th March 2008 at Hyderabad with the appellant, who was also residing in US prior to her marriage. Except for the marriage, the appellant and respondent are residing in US and pursuant to marriage also, resided in USA and cohabitated in US and two children, namely, Arthin Kodali and Neysa Sakhamuri Kodali, born in US on 14th March 2012 and 13th October 2014 respectively. Both of them are admitted in school at US much prior to the initiation of proceedings before Additional Family Court at Hyderabad. Both the minor children are US citizens and are holding US passports. The children are ordinary residents of Pennsylvania and brought to Hyderabad on 23rd March 2017 and petition was filed by the respondent/wife before the Hyderabad Court on 12th April 2017.

3. Learned counsel appearing on behalf of the appellant submitted that the Court below erred in law as well as facts in passing the impugned order dated 15th September 2017 without considering that the said proceedings were barred by Section 9 of the Guardians and Wards Act, 1890 and proceedings were liable to be rejected under Order 7 Rule 11 (a) & (d) of CPC, as there is no cause of action at Hyderabad. The minor children are born at USA and they are citizens of USA by birth and ordinary residents of Pennsylvania. Therefore, merely because the minor children were brought to Hyderabad on 23rd March 2017, would not confer jurisdiction upon the Family Court at Hyderabad to adjudicate the case of custody and guardianship of minor children. The removal of said children from US was on the pretext to observe holy rituals and condolences of the death of the grandmother of respondent. Accordingly, the respondent assured to the appellant that she along with children, will return to US on 24th April, 2017. Believing the said request, the appellant booked 4 tickets for respondent/wife, her mother and for two children to go to Hyderabad and also booked the return tickets for respondent and for two minor children. The matrimonial home in the present case was also in US and until stealthy removal of children from US on 23rd March 2017 to Hyderabad, and as such, it is only the Courts in US, which are competent to decide the issue of custody and welfare of minor children as they have the most closest concern and intimate contact with the issue of care and custody of the minor children. But the respondent, on the pretext of consoling her mother, ignoring the paramount interest of minor children who are US citizens, by depriving their personal rights granted under US laws, having their custody by virtue of the Ad Interim orders dated 12th April 2017 in I.A.No.292 of 2017 in the proceedings initiated by her in G.W.O.P.No.433 of 2017 on the file of Additional Family Court at Hyderabad and taking undue advantage of said order, she went to the extent of filing false case under Section 498-A of IPC against the appellant and his family members.

4. Learned counsel appearing on behalf of appellant further submitted that the Court below ought to have appreciated the fact that the respondent had herself invoked the jurisdiction of the Court in US by filing a divorce-cum-custody petition and equal distribution of the marital property on 21.12.2016, wherein, it was clearly averred by the respondent that both the parties are re