IMPORTANT POINT
In case of custody of minor child, agreement between parties should be honoured.

JUDGMENT (ORAL)

Dr. A.P. Thaker, J.—The appellant, who is original plaintiff, has preferred the present Appeal from Order against the order dated 8th March 2019 passed below Exhibit 01 in the proceedings of Civil Misc. Application No.23 of 2019 by the learned Principal Judge, Family Court, Surat, whereby the plaint is ordered to be returned to the appellant for its presentation before the proper Court having jurisdiction.

2. Brief facts of the present case are as under:-

2.1 That on 17th September 2013, the appellant married with respondent herein at Ahmedabad, Gujarat and on 14th December 2016, out of the said wedlock, one daughter namely Kayra was born at United States of America (USA). That since, there was differences between the respondent and the appellant, they have decided to separate and with mutual consent, they have executed an agreement dated 15th December 2017 wherein it was decided that the respondent herein had relinquished his right over the child. It is alleged that the said agreement clearly indicates that the child was residing in India with the appellant at Surat. It is further alleged that respondent herein had tricked the appellant to travel to USA and upon such request of the respondent, the appellant travelled and reached to the USA on 4th December 2018 along with the child. It is further alleged that the respondent snatched away the minor child from the legal custody of the appellant. It is alleged that the appellant tried her best by calling police on 911 at the relevant time to get the custody of minor child, however, the same was of no avail and the respondent has taken away the custody of the minor child and she had to return to India on 10th January 2019. It is alleged that in the meantime, on 30th January 2019, the Court of Circuit Judge, Florida rejected an application for custody of minor child on the ground that the child has resided in India for one year preceding the date of application along with the mother. It is further alleged that, therefore, the appellant had preferred Civil Misc. Application No.23 of 2019 under the provisions of Section 10 read with Sections 9 and 25 of the Guardians and Wards Act, 1890 (hereinafter be referred to as “the Act”) before the learned Principal Judge, Family Court at Surat. It is alleged that the Family Court has rejected the said application on the ground that the learned Judge of the Family Court, Surat has no jurisdiction to entertain the application as the marriage of the parties was solemnized at Ahmedabad and both the parties were residing at Ahmedabad after marriage and the agreement of divorce with mutual consent took place in Ahmedabad.

2.2 On the aforesaid factual aspects, the appellant has prayed to quash and set aside the impugned order dated 8th March 2019 passed by the learned Principal Judge, Family Court, Surat below Exhibit 01 in Civil Misc. Application No.23 of 2019 and to direct the Family Court to proceed with the matter.

3. Heard Mr.Virat Popat, learned advocate for the appellant and Mr.Jal Unwala, learned senior advocate with Mr.S. D. Mansur, learned advocate for the respondent at length. Perused the materials placed on record.

4. Mr.Virat Popat, learned advocate for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that even on reading of the agreement, the residence of the appellant is shown at Surat and, therefore, the minor child was residing with the appellant at Surat, at the relevant time, and, therefore, the Family Court at Surat has jurisdiction to entertain the application filed by the appellant herein. According to him, under Section 9 of the Act, the Family Court, Surat has jurisdiction to entertain the application filed by the appellant. It is submitted that the Florida Court has also held that the native of the child is stated to be India and, therefore, Indian Court has jurisdiction to entertain the petition. While referring to the impugned order, learned advocate for