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Nikhil vs Omprakash on 10 January, 2020

1 MP-6182-2019
The High Court Of Madhya Pradesh
MP-6182-2019
(NIKHIL Vs OMPRAKASH)

3
Indore, Dated : 10-01-2020
It is an unfortunate litigation under Article 227 of the Constitution of
India at the instance of the petitioner taking exception to the order dated
27/09/2019 passed by Second Additional Principal Judge Family Court,
Indore in case No.86/2015.
An application under section 8 read with section 10 of the Guardian

and Wards Act, 1890 (hereinafter referred to as ‘the Act of 1890’) sections
6 and 10 of the Hindu Adoption and Maintenance Act, 1956 for custody of
child Kratika aged about ten years is pending consideration. Ms. Kratika was
born on 03/12/2009 out of wedlock of the petitioner (father) and deceased
mother. A decree of divorce has been passed on 26/04/2012. The deceased –
wife died on 05/10/2012.
Petitioner filed an objection against maintainability of the application
alleging non-compliance of sub-section (3) of section 10 of the Act in the
matter of attestation of declaration by two witnesses. As a sequel to the

objection, the respondent / grand maternal parent submitted an application for

amendment. The same has been allowed by the impugned order and posted
the case for final arguments with liberty to either party to file evidence, if any.

Shri Syed Zuber Ali Warsi, learned counsel for the petitioner while
taking exception to the order impugned contends that the petitioner has been
denied liberty to file reply to the amendment allowed / amended application
and, therefore, is at loss to contest the application in right earnest. The Court
below has committed patent irregularity while ordering either party to lead
evidence without reply and posted the case for final arguments.

Per contra, Shri Anup Kumar Batham, learned counsel for the
respondent supports the order impugned with the submission that the Act of
1890 is enacted as a measure of social welfare legislation and for welfare of

Digitally signed by M V R BALAJI
SARMA
Date: 10/01/2020 18:47:58
2 MP-6182-2019
the children. Hence, hyper technicalities cannot be superimposed in the
process of disposal of the case for custody of children in summary manner.

Heard.

Upon hearing learned counsel for the parties, in the considered opinion
of this Court, the Court below in all fairness ought to have extended
opportunity to the petitioner to file reply to the amended application and

thereafter, liberty should have been granted to either party to lead evidence.
Such recourse has not been adopted. True it is that the Act of 1890 is
primarily for the welfare of children, nevertheless; fairness in procedure is a
requirement of rule of law and the same cannot be blinked away under any
pretext.

Consequently, the order impugned is modified. It is directed that the
petitioner is at liberty to file reply to the amended application filed by the
respondent within fifteen days from today. Thereafter, the Court below shall
be free to deal with the case in accordance with law.

Both the parties shall appear before the Court below, on the next date
of fixed.

With the aforesaid modification, this miscellaneous petition stands
disposed of. No order as to cost.

(ROHIT ARYA)
JUDGE

b/-

Digitally signed by M V R BALAJI
SARMA
Date: 10/01/2020 18:47:58

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