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Gh. Mohi-Ud-Din Wani vs Rukhsana Akhter on 15 October, 2019

Serial No. 10
Advance List

IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR

CTA No. 19/2018

Gh. Mohi-ud-Din Wani
….. Petitioner(s)
Through: –
Mr Shuja-ul-Haq Tantray, Advocate.

V/s
Rukhsana Akhter
….. Respondent(s)
Through: –
None.

CORAM:
Hon’ble Mr Justice Ali Mohammad Magrey, Judge.
JUDGMENT (ORAL)

01. This transfer application is filed by the applicant seeking transfer of

the application filed by the respondent/ non-applicant herein under the

Guardian and SectionWards Act, 1977, for appointment as Guardian in respect of

the minor child, namely, Ayan Wani, to the Court of learned Sub Judge,

Vailoo, in light of the notification bearing No. 663 dated 9 th of November,

2009 issued by the learned Registrar General of this High Court.

02. By order dated 15th of May, 2018, this Court directed as under:

“Mr. Shuja-ul-Haq, learned appearing counsel for the applicant,
seeks transfer of the petition pending before the Court of Principal
District Judge Anantnag filed by the non-applicant under section 25 of the
Guardian and SectionWards Act, seeking custody of the minor child on the
ground that the powers with reference to disposal of the proceedings
under Guardian and SectionWards Act have been vested with Sub Judge Vailoo
within whose jurisdiction the matter falls for consideration.

Mr. Shuja, Learned counsel for the applicant has invited attention
of this court to the notification No.663 dated 9.11.2009 on the terms
whereof the High Court has in exercise of the powers under Sectionsection 4-A
(1) of the Guardian and SectionWards Act, 1977 vested the powers to Sub Judge

CTA No. 19/2018 Page 1 of 3
Vailoo to dispose of the proceedings under Guardian and SectionWards Act
within the local limits of the jurisdiction. Mr. Shuja Learned appearing
counsel when asked as to whether the application has apprised the court
about this legal position submits that despite taking the position in
writing, the Principal District Judge has still proceeded which shows that
he has some interest in the matter.

Prima facie, the applicant has made out a case for showing
indulgence.

Notice returnable within one week.

In the meanwhile, proceedings in the application filed by the non-
applicant under Section 25 of Guardian and SectionWards Act, pending before
the Court of Principal District Judge Anantnag, shall stay.

Registry shall call the records from the court below forthwith.
Principal District Judge Anantnag shall submit his explanation as
to how he has proceeded in the matter despite notification issued by the
High Court on vesting of powers with Sub Judge, Vailoo. The explanation
shall be submitted within one week. This matter shall be treated as part
heard and be listed on 22.05.2018.

Registry shall send copy of this order to the Principal District
Judge, Anantnag, today itself.”

03. In pursuance of the aforesaid order passed by this Court, the learned

Principal District Judge, Anantnag, has submitted his reply to the

explanation.

04. Taking an overall view of the matter, buttressed with the reply to the

explanation submitted by the learned Principal District Judge, Anantnag, as

also having regard to the notification No. 663 dated 9 th of November, 2009

issued by this High Court vesting powers under Section 4-A (1) of the

Guardian and SectionWards Act, 1977, with the Sub Judge, Vailoo, to dispose of

the proceedings under Guardian and SectionWards Act within its local limits of

jurisdiction, this Court is convinced that the District Court lacks jurisdiction

to proceed in the matter.

05. In that view of the matter, this application is allowed and the learned

Principal District Judge, Anantnag, is directed to transfer the record of the

CTA No. 19/2018 Page 2 of 3
case titled ‘Rukhsana Akhter v. Gh. Mohi-ud-din Wani’ to the Court of

learned Sub-Judge, Vailoo, under Section 4-A of the Guardian and SectionWards

Act for its disposal under law. The learned Sub-Judge, Vailoo, shall, before

proceeding ahead in the matter, issue notice to the parties for their

appearance before the Court.

06. Registry to send down the records, as requisitioned by this Court, to

the Court below, alongwith a copy of this order forthwith.

07. Disposed of as above.

(Ali Mohammad Magrey)
Judge
SRINAGAR
October 15th, 2019
“TAHIR”

CTA No. 19/2018 Page 3 of 3
TAHIR MANZOOR BHAT
2019.10.16 12:41
I attest to the accuracy and
integrity of this document

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