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Dhirenkumar Girishkumar Dave vs Mona W/O Dhirenkumar Dave on 4 February, 2019

C/SCA/1210/2019 ORDER




ANAND S TAILOR(9021) for the PETITIONER(s) No. 1
MR. MAHITOSH U SINGH(7015) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1


Date : 04/02/2019


1. Order dated 05.09.2018 rendered by the Family Court
below application Exh.5 in Civil Misc. Appeal No. 42 of 2018
is sought to be assailed in this petition under Article 227 of
the Constitution of India solely on the ground of lack of
jurisdiction with the Family Court, Ahmedabad.

2. Learned counsel for the petitioner has invited attention
of this court to the findings rendered by the court below to an
effect that an application was preferred by the wife to claim
the custody of the child under Section 97 of the Code of
Criminal Procedure at Ahmedabad; the court found that
before the said application the minor was resident of
Ahmedabad, it would thus appear that the cause of action
subsisted at Ahmedabad when application under Section 97 of
Cr.P.C. was instituted. Therefore under Section 7 of the
Family Courts Act, 1984, read with provisions of CPC the

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C/SCA/1210/2019 ORDER

Family Court, Ahmedabad, would have jurisdiction to try the
proceedings. The contention, however, is that application by
wife was moved under Section 12 of the Guardians and Wards
Act, 1890, and in the submission of the learned counsel for the
petitioner, Section 9 of the Act would apply; according to
which, the ordinary resident of minor on the date of
application would decide the jurisdiction.

3. The reliance on Guardians and Wards Act, 1890, is
misconceived inasmuch as, the act is principally concerned
with the appointment of guardian jurisdiction contemplated
under Section 9 of the said Act is relatable to Sections 7 and 8
under which the person other than natural guardian can be
appointed. It is in case of such application is that Section 9
would come into play and not where one of the natural
guardians seek custody of a minor.

4. True that the wife relied upon Section 12 of the said Act
for interim custody of minor, however, being a natural
guardian, the question of appointment of guardian would not
arise under the Guardians and Wards Act merely because an
application of custody of a minor is involved. Under any case
the relief prayed under Section 12 of the Act can also be made
available to the wife under the Family Court Act as also Hindu
Minority and Guardianship Act. Being a natural guardian and
a mother of a minor she would have all the rights to invoke
the necessary provisions of Hindu Minority and Guardianship
Act as also the Family Court. Assuming that wrong provision
was invoked by the wife, the order in question which is
sustainable under other legal provision, cannot be faulted
with as an order without jurisdiction.

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C/SCA/1210/2019 ORDER

5. Moreover, the court below has only allowed the custody
of two days a week for the minor with the wife by way of
interim measure. It cannot be disputed that being a mother,
the wife is equally entitled to the company of a minor. Such
an interim order therefore cannot be interfered with in a writ
petition under Article 227 of the Constitution of India. The
application fails and is rejected.


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