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Kamal Junwal vs Smt. Preeti on 25 July, 2019


M. A. No.966 of 2019
(SectionKamal Julwal vs. Smt. Preeti Julwal)

Indore, dated : 25.07.2019

Ms. Ashi Vaidya, learned counsel for the appellant.
Shri Manish Yadav, learned counsel for the respondent.

Considered I.A. No.1191/2019, which is an application for
condonation of delay. The appeal is barred by 08 days.

The present miscellaneous appeal has been filed under Section 47
of the Guardians and SectionWards Act, 1890 against the order dated
02.11.2018 passed by the Additional Principal Judge, Family Court,
Ujjain in Guardian Case No.03/2017 challenging the ex-parte order.

Learned counsel for the appellant submits that he came to know
about the ex-parte order when he received a notice in the execution
proceedings on 31.01.2019.

Considering the grounds mentioned in the appeal, delay of 08
days apparently appears bonafide and delay hereby stands condoned. I.
A. No.1191/2019 stands disposed of.

Also heard on the question of admission as well as on I.A.
No.1190/2019, which is an application for stay.

The order passed by the Trial Court is an ex-parte order disposing
of the application filed under Section 7 of the Guardians and SectionWards Act
read with Section 13 of the Hindu Minority and SectionGuardianship Act,
1956, whereby the minor son Vineet has been ordered to be given in
custody of the respondent/wife.

Learned counsel for the appellant/husband submits that on
25.10.2018 when he was declared ex-parte, he had gone to Rajasthan to
earn his living as a labourer and his counsel did not appear and
therefore, he was declared ex-parte and seeks stay of the execution
proceedings which have been initiated pursuant to the order dated

M. A. No.966 of 2019
(SectionKamal Julwal vs. Smt. Preeti Julwal)

02.11.2018 against him.

The child Vineet, who is aged about 8 years was produced before
us in chamber unaccompanied by his parents. The child, apparently of
a reasonable intellect and maturity of his age has expressed his desire to
stay with his father Kamal only. Admittedly, the child is living with
his father Kamal only, who is earning and apparently having adequate
means to look after the welfare of the child.

Learned counsel for the respondent has referred to a citation of
SectionPushpa Singh vs. Inderjit Singh, JT 1989 (1) SC 43, in which it has
been held that paramount interest of the child lies in giving his custody
to the mother. Another citation submitted by him is of SectionSmt. Tara Devi
vs. Mahaveer Singh, AIR 1997 Raj. 87. However, in case of Pushpa
Singh (supra), the child was less than 5 years of age and at that age,
child’s custody with mother assumes importance for the child’s welfare.
In the present case, Vineet is admittedly aged about 8 years. Although,
there are allegations of alcoholism against appellant Kamal however,
Vineet has appeared to be well brought up and sprightly child being
reared up for close to two years by appellant Kamal. Consequently, it
would be appropriate to grant interim custody of the child to his father.

The ex-parte order passed against the appellant is ordered to be
set aside and the matter is remanded back to the concerned Court with a
direction that the Trial Court shall give opportunity to both the parties
to adduce evidence in support of their claims and the matter shall be
disposed of finally after hearing both the parties. In light of the
aforesaid as the ex-parte order has been set aside, the execution
proceedings for executing the ex-parte order are quashed and I.A.
No.1190/2019 stands disposed of. Parties are directed to appear before

M. A. No.966 of 2019
(SectionKamal Julwal vs. Smt. Preeti Julwal)

the Additional Principal Judge, Family Court, Ujjain on 19.08.2019.

With the aforesaid direction, this appeal stands disposed of.
A copy of this order be sent to the concerned Court along with the
original record for due compliance.

(S. C. Sharma) (Shailendra Shukla)
Judge Judge

Digitally signed by Geeta Pramod
Date: 2019.07.26 18:15:54 +05’30’

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