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Vishal Mohindra vs Vanita on 7 February, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

(218) FAO-3831-2015 (OM)
Decided on: February 07, 2018.

Vishal Mohindra
…. Appellant
Versus

Vanita
….. Respondent

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI
HON’BLE MR. JUSTICE GURVINDER SINGH GILL

Present: Mr. Vishal Mohindra-appellant in person.

Mr. Kamalpreet Bawa, Advocate, for
Mr. V.B. Aggarwal, Advocate, for the respondent.

M.M.S. BEDI, J (ORAL)

The appellant is aggrieved by order dated 21.03.2015 passed by

the Family Court, Ambala, dismissing the application for restoration of

application dated 10.08.2013 for the custody of the minor child.

It is admitted fact that the appellant had filed a petition under

Section 13 of the Hindu Marriage Act for seeking divorce from the

respondent. During pendency of the petition, he had filed an application

purporting to be an application under Section 26 of the Hindu Marriage Act

for custody of the minor child. He had been granted visitation rights viz-a-

viz. minor daughter vide different orders passed by the Family Court. The

appellant had withdrawn his petition under Section 13 of the Hindu

Marriage Act on 19.07.2013. Accordingly vide order dated 19.07.2013, the

petition was dismissed as withdrawn after recording the statement of the

appellant. Thereafter, the appellant filed an application dated 10.08.2013

for modification of certain orders under Section 7 (1) Explanation (g) read

with Section 8 (a) (c) (I) of the Family Courts Act, 1984 which was

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dismissed for non-prosecution on 20.08.2013. The appellant then filed

another application on 17.10.2013 for restoration of application dated

10.08.2013. The said application for restoration was dismissed vide order

dated 21.03.2015 inter alia observing as follows:-

“7. It is not out of place to mention here that order dated
15.03.2011 passed by Sh. AS Narang, the then Additional
District Judge, Ambala holding the applicant entitled to see
the child on every Saturday after school hours in the school
for two hours had been passed by way of interim measure. It
is well settled law that all the interim orders are merged into
final orders and the interim order dated 15.03.2011 of
visiting rights also comes to an end by virtue of dismissal of
his petition of divorce on 19.07.2013. It is pertinent to
observe here that the divorce petition was not dismissed on
merits or on technical ground, rather it was the applicant
himself who had withdrawn the said divorce petition of his
own. Not only this, the applicant has not filed any
application for visiting his child. More so, the applicant has
not placed on record any document to show that he could not
pursue his application on account of his ill-health. He also
failed to produce any medical record in this regard.

8. In view of my above discussion, I find no merit in the
application, and the same is hereby ordered to be dismissed.
File be consigned to the record room after due compliance”.

Perusal of the above said order indicates that the application

filed by the petitioner for consideration of his application for claim

regarding custody of the child in view of the provisions of Section 7 of the

Family Courts Act, 1984, has been dismissed on the ground that all the

rights of the appellant along with right under Section 26 of the Hindu

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Marriage Act would cease to exist with the withdrawal of the divorce

petition.

The appellant appearing in person has submitted that his

application dated 10.08.2013 under Section 7 read with Section 8 of the

Family Courts Act, 1984 had been dismissed as he was not able to pursue

the same on account of his serious illness. He informs that he was suffering

from renal failure at that time.

We have considered the contentions of the appellant who is

appearing in person.

He has submitted that his original claim for divorce after

withdrawal of his application for divorce, he had not given up his right for

custody of the child.

On the query of the Court as to why he could not file

application under the provisions of Guardianship and Wards Act to claim

the custody or the interim custody, he submits that in the light of provisions

of Section 7 (1) Explanation (g) read with Section 8 of the Family Courts

Act, 1984, he has got a right to pursue the proceedings pertaining to the

guardianship and custody or access to the minor. Sections 7 and 8 of the

Family Courts Act, 1984 reads as follows:-

“7. Jurisdiction.-

(1) Subject to the other provisions of this Act, a Family
Court shall–

(a) have and exercise all the jurisdiction exercisable by
any district court or any subordinate civil court under any
law for the time being in force in respect of suits and
proceedings of the nature referred to in the explanation;
and

(b) be deemed, for the purposes of exercising such

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jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to
which the jurisdiction of the Family Court extends.
Explanation:- The suits and proceedings referred to in this
sub-section are suits and proceedings of the following
nature, namely:-

(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx
(d) xxxx xxxx xxxx
(e) xxxx xxxx xxxx
(f) xxxx xxxx xxxx

(g) a suit of proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.

xxxx xxxx xxxx

8. Exclusion of jurisdiction and pending proceedings.-
Where a Family Court has been established for any area,-

(a) no district court or any subordinate civil court referred
to in sub-section (1) of section 7 shall, in relation to such
area, have or exercise any jurisdiction in respect of any
suit or proceeding of the nature referred to in the
Explanation to that sub-section;

(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or power under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the
Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974),-

(i) which is pending immediately before the establishment
of such Family Court before any district court or
subordinate court referred to in that sub-section or, as the
case may be, before any magistrate under the said Code;
and

(ii) which could have been required to be instituted or

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taken before or by such Family Court if, before the date on
which such suit or proceeding was instituted or taken, this
Act had come into force and such Family Court had been
established, shall stand transferred to such Family Court
on the date on which it is established”.

Prima facie, the Family Court has got jurisdiction to exercise

the powers of a District Court or subordinate civil Court under any law in

respect to any proceedings of the nature which are mentioned in the

Explanation (a) to (g).

The claim of the appellant irrespective of its title, in relation to

the guardianship of the minor child or the custody of the child or access to

the minor child could have been entertained by the Family Court as

jurisdiction vested in the said Court only. The Family Court has apparently

evaded the performance of statutory duty while dismissing the application

for restoration of application dated 10.08.2013 vide order dated 21.03.2015.

The judicial propriety demands that application dated 10.08.2013 for

custody of the child should be considered on merits as per law, irrespective

of the petition under Section 13 of the Hindu Marriage Act having been

withdrawn by the appellant. There were sufficient reasons for restoration of

the application dated 10.08.2013 which had been dismissed for non-

prosecution on account of unavoidable circumstances explained by the

appellant before this Court.

The appeal is allowed. Impugned order dated 21.03.2015 is set

aside. The application dated 10.08.2013 stands restored. Parties are

directed to appear before the Family Court, Ambala on 16.03.2018 for

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decision of the application dated 10.08.2013 in accordance with law

irrespective of the dismissal of the petition under Section 13 of the Hindu

Marriage Act by the Family Court.

(M.M.S. BEDI)
JUDGE

February 07, 2018. (GURVINDER SINGH GILL)
harsha JUDGE

Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No

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