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Arvind Kishore vs Neha Mathur on 20 January, 2020

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 3220/2018

Dr. Arvind Kishore S/o Dr. Basant Kishore, Aged About 38 Years,
R/o Ajmera Garden, Kings Road, Ajmer Road, Jaipur (at Present
residing at C/o 341 E Main St, San Jacinto, CA 92583, United
States of America (USA)
—-Appellant
Versus
Smt. Neha Mathur D/o Prem Narain Mathur, Aged About 36
Years, W/o Dr. Arvind Mathur, R/o Ward No. 39, House Number
B-2/89, Rajmata Sudershna Nagar, Bikaner.
—-Respondent

For Appellant(s) : Mr. Prabhjit Jauhar with Ms. Tara
Narula
For Respondent(s) : Mr.Parvez Khan Moyal

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

20th January, 2020

Per Hon’ble Mr. Sangeet Lodha,J.

1. This appeal is directed against order dated 10.1.18 passed

by the Judge, Family Court No.1, Bikaner in Misc. Case No.788/16,

whereby an application preferred by the respondent under Section

7, 10 of Guardians and Wards Act, 1890 (for short “the Act”), for

appointing herself as guardian of her minor son, has been allowed.

2. During the pendency of the appeal, the appellant has filed an

application under Section 12 of the Act, seeking visitation rights to

his minor child Anay Kishore, which is being contested by the

respondent by filing a reply thereto. However, with the consent of

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learned counsel appearing for the parties, the matter is finally

heard at this stage.

3. The facts relevant are that the marriage between the

appellant and the respondent was solemnized on 27.5.10, at

Bikaner. Out of the wedlock, their son Anay Kishore was born on

21.5.11 at California, USA. Indisputably, the child Anay Kishore is

citizen of USA and had been residing there since his birth. It is

alleged that on account of the appellant indulging in illicit

relationship, cruel treatment and his quarrelsome and stubborn

behaviour, the respondent left the company of the appellant and

came back to India on 13.11.13 alongwith the child Anay Kishore.

4. The respondent preferred an application before the Family

Court No.1, Bikaner, for appointing her as guardian of her minor

son Anay Kishore. The respondent averred that ever since return

to India, she alone is maintaining the child and taking overall care

of him. The appellant, who is indulged in ‘eat, drink and be merry’

culture has never even cared to inquire about well being of the

child. The respondent alleged that the appellant is not fit to be

guardian of the minor child and therefore, taking into

consideration overall interest and welfare of the child, she

deserves to be appointed as his guardian. The respondent claimed

that after coming back to India from USA, she is residing with the

child at Bikaner and therefore, the Family Court at Bikaner has

jurisdiction to hear the application.

5. On the application being filed as aforesaid by the respondent

through her counsel Mr. S.P. Goyatan on 14.10.16, vide order

dated 15.11.16 passed by the Family Court, notice was directed to

be issued to the appellant herein, which was sent through

registered AD Post. Notices issued were obtained from the Court

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on 26.11.16 on behalf of the respondent by her counsel Mr. S.P.

Goyatan. As per the postal receipts available on record, the

notices were dispatched by registered AD on 9.12.16, on both the

addresses of the appellant i.e. USA address and Jaipur address.

The AD receipt of the notices dispatched to Jaipur address of the

appellant, as received by the Family Court, does not bear

signature of the person receiving the registered post. Be that as it

may, vide order dated 6.2.17, the Family Court directed the

respondent to file the report regarding the service of the notice

sent by the registered AD post at Jodhpur (sic Jaipur) address of

the appellant as also to file an affidavit regarding the notice

alleged to have been sent at California address of the appellant.

No delivery report or affidavit as directed by the Court appears to

have been filed by the respondent. However, keeping in view the

fact that 2½ months had already lapsed since dispatch of the

notices to the appellant by the registered post, on the basis of the

postal receipt filed, the service upon the appellant was treated as

complete and the order proceeding ex parte was passed against

him and the matter was fixed for evidence of the respondent.

6. As per order sheet dated 4.4.17 of the Family Court, the

appellant’s father preferred two applications; one to permit him to

appear on behalf of the appellant herein and another under Order

VII Rule 11 read with Section 151 CPC, seeking rejection of the

petition. However, a perusal of the record reveals that besides the

said applications, one more application was filed on behalf of the

counsel for the appellant to permit him to appear on behalf of the

appellant. However, noticing the absence of the appellant, the said

applications were directed to be kept in “D” part of the record and

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the affidavits filed on behalf of the respondent in support of her

case, were taken on record.

7. On 1.6.17, neither the appellant nor the respondent was

present, however, the presence of the learned counsel appearing

on their behalf was recorded. On behalf of the appellant, yet

another application was filed to permit him to appear through his

counsel. The matter was adjourned for reply to the application and

arguments thereon.

8. On 25.8.17, a reply to the said application was filed on

behalf of the respondent and the matter was adjourned for

arguments.

9. On 31.8.17, Mr. Naresh Goyal, Advocate, filed Vakalatnama

on behalf of the appellant, which was directed to be kept in “D”

part, however, his arguments on the application preferred were

heard. The Court while noticing the absence of the appellant

herein despite ex parte proceedings, vide order dated 16.9.17,

rejected the application as not maintainable.

10. The Court observed that the application preferred by the

appellant herein, could be considered only after his personal

appearance. Aggrieved by the order dated 16.9.17, the appellant

preferred S.B.C.Writ Petition No.15238/17 before this Court.

11. On 2.11.17, the Court recorded the statement of the

respondent Neha Mathur and the matter was kept for final

arguments. After hearing the arguments of the respondent, the

petition filed has been allowed by the Court, as prayed for. Hence,

this appeal.

12. Learned counsel appearing for the appellant contended that

the order impugned has been passed by the Family Court without

giving an opportunity of hearing to the appellant in utter violation

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of principles of natural justice. Learned counsel submitted that

the Family Court knowing fully well that aggrieved by the order

dated 16.9.17, a writ petition preferred by the appellant was

pending consideration before this Court, proceeded to pass the

impugned final order, without even waiting for the decision of the

said writ petition. Learned counsel submitted that it was brought

on record by the appellant vide application seeking permission to

represent through counsel as also by way of an application under

Order VII Rule 11 CPC that the child is born at California and

permanent citizen of USA and further that the Superior Court of

California had already passed an order for custody of the child in

favour of the appellant and thus, the Family Court, Bikaner, has no

jurisdiction to decide the matter pertaining to custody of the child,

who is citizen of California, but while noticing the contention of the

appellant, the same has been rejected by the Court observing that

the appellant herein has not produced the certified copy of the

said decision of Foreign Court on record and proved the same,

whereas no such opportunity was ever extended by the Court to

the appellant. Learned counsel submitted that the Family Court

has failed to extend fair opportunity to the appellant inasmuch as

while the respondent was permitted to appear through her counsel

from very beginning, the prayer made on behalf of the appellant in

this regard, has been rejected in cursory manner. Learned counsel

further contended that admittedly, the minor child is residing at

Hyderabad for last more than 5 years and thus, by virtue of

provisions of Section 9 of the Act, the application in respect of

guardianship of the person of the minor was maintainable only

before the District Court of Hyderabad and thus, the application

was liable to be rejected or returned to the respondent for proper

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presentation. Drawing the attention of the Court to the Para (C) of

additional reply to the appeal filed by the respondent, learned

counsel submitted that the fact that minor son of the parties is

studying in CGR International School, Hyderabad, stands

specifically admitted by the respondent. Relying upon the decision

of this Court in Sanjay Agarwal Vs. Smt. Krishna Agarwal : AIR

2008 Raj. 194 and decisions of the Delhi High Court in Amrit Pal

Singh Vs. Jasmit Kaur: ILR (2006) I Delhi 717 and Paul Mohinder

Gahun Vs. Selina Gahun: 2006 (90) DRJ 77, learned counsel

contended that the application preferred was liable to be rejected

for want of territorial jurisdiction. Learned counsel submitted that

the respondent has deliberately concealed the factum of decisions

of the Superior Court of California as also the fact that the minor

child Anay Kishore is citizen of California. The respondent also

concealed the fact that she alongwith her minor child is residing at

Hyderabad and deliberately made a false statement before the

Court that the child is studying in a school at Bikaner and thus,

the application preferred was liable to be rejected only on this

count. In support of the contention, learned counsel has relied

upon a decision of the Supreme Court in S.P. Chengalvaraya Naidu

Vs. Jagannath and Ors.:(1994) 1 SCC 1. Learned counsel

submitted that it is well settled that the residence must be lawful

and voluntary. If a man stays in the country in breach of

immigration laws, his presence there does not constitute ordinary

residence and thus, in no manner, any place in India could be

considered to be the ordinary residence of the minor child, who is

citizen of USA. In support of the contention, learned counsel has

relied upon a decision of the Supreme Court in the matter of

Yogesh Bhardwaj vs. State of U.P. Ors.: (1990) 3 SCC 355.

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13. On the other hand, learned counsel appearing for the

respondent submitted that if the appellant was aggrieved by the

proceeding ex parte against him, nothing prevented him to make

an appropriate application before the Family Court for setting

aside the ex parte proceedings and avail the opportunity of

hearing. Learned counsel would submit that the appellant having

failed to avail the appropriate remedy available under the law,

cannot raise any grievance regarding the order passed by the

Family Court directing proceeding ex parte against him. Learned

counsel submitted that the marriage between the parties was

solemnized at Bikaner and the respondent was not subject to

jurisdiction of the Superior Court of California and therefore, the

judgment and decree passed by the Foreign Court ex parte are

null and void and not enforceable. Drawing the attention of this

Court to the order impugned passed by the Family Court, learned

counsel submitted that the issue with regard to validity and

enforceability of the decision of the Foreign Court, has been

appropriately dealt with by the Court and the conclusion arrived at

in conformity with the provisions of Section 13 and 14 CPC, cannot

be faulted with. Learned counsel submitted that overall growth

and grooming of the child being of paramount consideration, the

order impugned passed by the Family Court taking into

consideration all the relevant aspects, does not warrant any

interference by this Court. In support of the contention, learned

counsel relied upon a decision of the Supreme Court in Kanika

Goel vs. State of Delhi Anr.: (2018) 9 SCC 578. Learned counsel

submitted that in the matters relating to matrimony and custody,

the law of that place must govern which has the closest concern

with the well being of the spouses and the welfare of the

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offsprings of the marriage and thus, keeping in view the interest

and welfare of the child, the jurisdiction exercised by the Court in

respect of the child who is foreign citizen, also cannot be faulted

with. In support of the contention, learned counsel relied upon a

decision of Madras High Court in Ramkrishna Balasubramanian vs.

Ms. Priya Ganesan: AIR 2007 Mad 210.

14. We have considered the rival submissions of the learned

counsel for the parties and perused the material available on

record.

15. Indisputably, the provisions of Code of Civil Procedure, 1908

and of any other law for time being in force are applicable to the

suit and proceedings other than proceedings under Chapter IX of

Code of Criminal Procedure before the Family Court. It is not in

dispute that the appellant at the relevant time was residing at

California, USA and was not available at the address of Jaipur as

mentioned in the application filed. It is also not in dispute that

nothing was brought on record showing that notice sent to

California was served upon the appellant. The respondent was

specifically directed to file an affidavit regarding the dispatch of

notice to the appellant at California address by registered post but

no such affidavit was ever filed by the respondent. The notice sent

at Jaipur address was apparently not served upon the appellant

personally, however, it appears that the same was served upon his

father and consequently, he appeared before the Court and sought

permission to appear on behalf of the appellant as next friend.

16. It is pertinent to note that the respondent in the first

instance, had filed the application for appointing her as guardian

of her minor child through her counsel Mr.S.P.Goyatan, Advocate.

A perusal of the proceedings as noticed hereinabove, makes it

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abundantly clear that the Family Court at the very threshold

permitted the respondent to be represented by a legal practitioner

without there being any such application made on her behalf.

17. It is true that after coming to know about the proceedings

pending before the Family Court, the appellant instead of insisting

for appearance through the legal practitioner by way of various

applications made, should have personally appeared before the

Court as directed but then, when the respondent had already been

permitted to appear through legal practitioner, the Family Court

was not justified in directing the applications preferred on behalf

of the appellant in this regard being kept in “D” part and proceed

against him ex parte. Strangely enough, an application preferred

by the appellant seeking representation through legal practitioner

was later considered by the Family Court on merits and even the

legal practitioner appearing on his behalf was permitted to argue

the application. Suffice it to say that on the one hand, the Family

Court declined to take cognizance of the appearance of the

counsel appearing on behalf of the appellant, but at the same

time, the application preferred on his behalf for representation

through legal practitioner was permitted to be pursued by the

counsel appearing on his behalf. On the facts and in the

circumstances of the case, in the considered opinion of this Court,

the Family Court knowing fully well that the appellant is residing at

California, USA and it was not possible for him to remain present

before the Court on each date of hearing, should have permitted

to him to appear through legal practitioner moreso when the

respondent had already been permitted to be represented through

her counsel. The respondent could have been directed to remain

personally present before the Court as and when required. In this

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view of the matter, in the considered opinion of this Court, the

Family Court has seriously erred in denying the equal opportunity

to the appellant for representation through legal practitioner.

18. A perusal of the application preferred on behalf of the

appellant under Order VII Rule 11 CPC, which was also directed to

be kept in ‘D’ part of the record by the Family Court, reveals that

all the necessary facts regarding the decision rendered by

Superior Court of California in respect of the custody of the minor

child Anay Kishore were set out therein but since, the application

was not even entertained and the appellant was not permitted to

participate in the proceedings, he could not have produced the

relevant documents on record. Surprisingly enough, the Family

Court while taking into consideration the facts set out in the

application under Order VII Rule 11, which was directed to be kept

in “D” part and was not intended to be taken into consideration,

proceeded to examine the effect of the said decision of the Foreign

Court in light of the provisions of Section 13 and 14 CPC and

proceeded to record the finding as aforesaid without extending an

opportunity of hearing to the appellant.

19. Coming to the jurisdiction of the Family Court, Bikaner to

entertain the application preferred by the respondent seeking an

order appointing her as guardian of the minor child Anay Kishore,

it is noticed that the question with regard to the territorial

jurisdiction of the Family Court to hear and decide the application

filed was never raised before it, obviously for the reason that the

appellant was proceeded ex parte and he had no opportunity to

raise objection in this regard. But the fact remains that before the

Family Court in the application filed, the respondent has

specifically averred that the minor child is ordinarily residing at

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Bikaner and therefore, the Family Court at Bikaner has the

jurisdiction to hear the application. In support of the submissions

made, the respondent had produced on record the certificates of

merit and receipts of the fee deposited issued by Arjun

Preparatory School, Bikaner on record. To the contrary, in the

reply to the appeal filed before this Court, the respondent has

specifically averred that for last five years, minor child Anay

Kishore is studying in CGR International School, Hyderabad. Thus,

apart from the issue as to whether the minor child Anay Kishore

being a citizen of USA, can at all be treated to be ordinary

residence of any place in India, the question with regard to his

being ordinary residence of Bikaner or Hyderabad, also needs to

be gone into by the Family Court so as to decide the issue with

regard to its own jurisdiction to entertain the application filed on

behalf of the respondent.

20. Obviously, on account of the proceedings ex parte, the issue

with regard to the welfare and interest of the minor child, has also

been decided by the Family Court on the basis of the statement of

the appellant in cursory manner.

21. In view of the discussion above, in the considered opinion of

this Court, the order impugned passed by the Family Court

denying the appellant a fair opportunity to defend the matter, is

not sustainable in the eyes of law and the matter deserves to be

remanded to the Family Court for decision afresh, after giving an

opportunity of hearing to both the parties in accordance with law.

22. In the result, the appeal succeeds, it is hereby allowed. The

order impugned dated 10.1.18 passed by the Judge, Family Court

No.1, Bikaner in Misc. Case No.788/16 is set aside. The order

dated 2.3.2017 passed by the Family Court, directing proceeding

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ex parte against the appellant, is also set aside. The Family Court

shall decide the application preferred by the respondent afresh,

after giving an opportunity to the respondent to defend the

application, in accordance with law.

23. As the respondent has already been permitted by the Family

Court to be represented by the legal practitioner, the appellant

shall also be permitted to be represented through legal

practitioner. The application preferred in this regard by the

appellant shall stand allowed accordingly.

24. The Family Court shall first decide the application preferred

by the appellant under Order VII Rule 11 CPC as also the question

of territorial jurisdiction of the Court to entertain the application, if

any raised by the appellant and shall proceed to decide the main

application preferred by the respondent on merits thereafter, if

occasion arises.

25. The appellant shall be at liberty to file an application before

the Family Court seeking visitation right to minor child Anay

Kishore. Needless to say that the application, if any filed, shall be

heard and decided by the Family Court in accordance with law.

26. The parties shall remain personally present before the Family

Court, Bikaner on 7.2.2020 and thereafter, as and when called for.

No order as to costs.

(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
Aditya/-

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