1 FA No. 160/2017
(Rachana Bai Vs Rajendra Kumar Others)
24/11/2017
Shri Purshottam Rai, learned counsel for the
appellant.
Shri T.C. Singhal, learned counsel for the
respondents.
The instant first appeal filed under Section 19 of the
Family Courts Act assails the impugned order passed on
24/03/2017 in Guardian Ward Case No. 20/2012 by
Additional Judge, Family Court, Gwalior whereby an
application preferred by appellant-mother Smt. Rachana
Bai under Section 25 of the Guardian and Ward Act
seeking custody of minor person respondent Nos. 2 and
3. from the guardianship of their father/respondent No.1
has been rejected on merits and also for want of
territorial jurisdiction.
Section 9 of the Guardian and Ward Act, for ready
reference, is reproduced below :-
Court having jurisdiction to
entertain application.– 1. If the
application is with respect to the
guardianship of the person of the minor, it
shall be made to the District Court having
jurisdiction in the place where the minor
ordinarily resides.
2. If the application is with respect to
the guardianship of the property of the
minor, it may be made either to the
District Court having jurisdiction in the
place where the minor ordinarily resides or
to a District Court having jurisdiction in a
place where he has property.
3. If an application with respect to the
guardianship of the property of a minor is
made to a District Court other than that
2 FA No. 160/2017
(Rachana Bai Vs Rajendra Kumar Others)
having jurisdiction in the place where the
minor ordinarily resides, the Court may
return the application if in its opinion the
application would be disposed of more
justly or conveniently by any other District
Court having jurisdiction.
From bare perusal of the above said provision, it
is clear that for the custody of minor, application is to be
filed within the territorial jurisdiction of the competent
court where the minor resides.
It is not disputed at the bar by counsel for the rival
parties that the minor respondent Nos. 2 and 3 were
and are residing at Shadora, Tahsil and District
Ashoknagar (M.P.).
Thus, the impugned order to the extent it holds that
the Family Court at Gwalior has no Territorial Jurisdiction
to entertain the cause in question can not be found fault
with.
However, when Family Court found that it does not
have territorial jurisdiction, it ought not to have gone into
the merits of matter and should have left it for the
competent court to decide.
Accordingly to the extent the impugned order dated
24/03/2017 passed in Guardian and Ward Case No.
20/2012, records finding on merit against the
appellant/mother is set-aside.
However, other part of the impugned order holding
that Family Court, Gwalior does not have territorial
jurisdiction is upheld.
In view of above, present appeal stands allowed to
3 FA No. 160/2017
(Rachana Bai Vs Rajendra Kumar Others)
the extent indicated hereinabove with liberty to
appellant/mother to the approach the court of competent
territorial jurisdiction alongwith application for
condonation of delay which shall be considered by the
court of competent jurisdiction in accordance of law.
The first appeal stands disposed of.
(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
Prachi*
PRACHI MISHRA
2017.11.25 12:52:45
+05’30’
