S. Shabab Fatima vs Dr. Syed Mohammad Saklain on 8 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.501 of 2015

S. Shabab Fatima Wife of Dr. Syed Mohammad Saklain, Daughter of Syed Akbar
Hussain, At present resident of Mohalla- Dargah Road, Near Karbala, P.S.-
Sultanganj, District- Patna

…. …. Appellant/s
Versus
Dr. Syed Mohammad Saklain Son of Shahid Mehdi, Resident of House No. B/217,
Near Berum Convent School, Begumganj, Ramnagarbagh, P.S.- City Town
Kotwali, District- Barabanki (Uttar Pradesh)

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rashid Izhar
For the Respondent/s : Mr. Shabbir Ahmad, Adv Mr. Anil Kumar
Saxena, Adv

CORAM: HONOURABLE MR. JUSTICE S. KUMAR
and
HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
Date: 08-11-2017

This miscellaneous appeal is directed against the

judgment and order dated 22.07.2015 passed by learned Principal

Judge, Family Court, Patna under Section 9 and 25 of the Guardians

and Wards Act passed in Guardianship Case No. 21 of 2015 by which

the learned Family Court has dismissed the case of appellant on the

ground of lack of territorial jurisdiction of Family Court, Patna.

2. The appellant is the wife and respondent is the husband.

Their marriage was solemnized on 07.09.2003 at Patna as per Muslim

law and Muslim customs. After marriage she went to her matrimonial

home at Barabanki, Uttar Pradesh and started residing with her
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husband. Out of their wedlock, two daughters, namely, Abiha Zahira,

Alisha Zahira and a son, namely, Md. Ali were born and their age at

time of filing petition before the Family Court was seven years, five

years and three years respectively.

3. The respondent is a leading practicing doctor but still

demanded dowry of Rs. 15 lacs from the father of appellant on the

plea of constructing a Dispensary and Hospital and he was forcing the

appellant to ask her father to pay him Rs. 10 lacs, but the appellant

refused and stated that her father is a retired government employee

and is unable to pay such huge amount. The respondent always

threatened if appellant’s father does not fulfill his demand, he will

give her divorce and perform second marriage. Due to non-fulfillment

of dowry demand, on 06.07.2014, the respondent and his family

members assaulted the appellant and again demanded a sum of Rs. 15

lacs.

4. That appellant was being tortured for non-fulfillment of

said demand and she came to her parental house at Patna and narrated

the whole story to her parents. The father of the appellant took her to

her Sasural on 12.07.2014 and when the appellant went to the house

of respondent, he asked about the amount and when they denied, the

appellant and her father were abused and then they returned back to

Patna. On 13.09.2014, the respondent and his father came to Patna
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with two children namely Alisha Zahra aged about five years and son

Md. Ali aged about three years and left them with the appellant, and

one child namely, Abhiha Zahra was left in the house at Barabanki.

The respondent and his father again came on 14.09.2014 at 3:00 PM

and took away both the children and went to their house at Uttar

Pradesh.

5. It has been submitted on behalf of counsel for the appellant

that appellant is the natural guardian of the aforesaid children and

children need motherly love and affection and also for the welfare of

minor child, custody and guardianship should be given to the mother

appellant. The appellant filed a Guardianship Application in the Court

of Principal Judge, Family Court, Patna being Guardianship Case No.

21 of 2015 but the Family Court dismissed the Guardianship Case of

the appellant for lack of territorial jurisdiction of Family Court at

Patna.

6. Section 9(1) of the Guardians and Wards Act, 1890 defines

the territorial jurisdiction under which Guardianship petition can be

filed, and it is stated therein that a petition for Guardianship and

Custody could be filed in the District Court having jurisdiction in the

place where the minor ordinarily resides. In the present case

admittedly the appellant was living with her husband in Barabanki,

Uttar Pradesh where all the three minor children were also living with
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them, and on account of some differences, appellant came to parental

home at Patna and filed a Guardianship Case in Family Court, Patna,

which has no territorial jurisdiction over the matter.

7. After considering the facts of present case, we are of the

view that the Family Court at Patna has no jurisdiction to entertain

petition under the Guardianship and Wards Act, 1890 for custody of

minor child of appellant and the Family Court has rightly rejected the

petition of appellant on the ground of lack of territorial jurisdiction

over the matter. The appellant should approach the Court which has

jurisdiction over the matter.

This appeal as such is dismissed.

(S. Kumar, J)

Dr. Ravi Ranjan, J : I agree

(Dr. Ravi Ranjan, J)

veena/-

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