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Judgment
This miscellaneous appeal is directed against the
judgment and order dated 22.07.2015 passed by learned Principal
Judge, Family Court, Patna under Section 9 and 25 of the Guardians
and Wards Act passed in Guardianship Case No. 21 of 2015 by which
the learned Family Court has dismissed the case of appellant on the
ground of lack of territorial jurisdiction of Family Court, Patna.
The appellant is the wife and respondent is the husband.
Their marriage was solemnized on 07.09.2003 at Patna as per Muslim
law and Muslim customs. After marriage she went to her matrimonial
home at Barabanki, Uttar Pradesh and started residing with her
husband. Out of their wedlock, two daughters, namely, Abiha Zahira,
Alisha Zahira and a son, namely, Md. Ali were born and their age at
time of filing petition before the Family Court was seven years, five
years and three years respectively.
The respondent is a leading practicing doctor but still
demanded dowry of Rs. 15 lacs from the father of appellant on the
plea of constructing a Dispensary and Hospital and he was forcing the
appellant to ask her father to pay him Rs. 10 lacs, but the appellant
refused and stated that her father is a retired government employee
and is unable to pay such huge amount. The respondent always
threatened if appellant''s father does not fulfill his demand, he will
give her divorce and perform second marriage. Due to non-fulfillment
of dowry demand, on 06.07.2014, the respondent and his family
members assaulted the appellant and again demanded a sum of Rs. 15
lacs.
That appellant was being tortured for non-fulfillment of
said demand and she came to her parental house at Patna and narrated
the whole story to her parents. The father of the appellant took her to
her Sasural on 12.07.2014 and when the appellant went to the house
of respondent, he asked about the amount and when they denied, the
appellant and her father were abused and then they returned back to
Patna. On 13.09.2014, the respondent and his father came to Patna
with two children namely Alisha Zahra aged about five years and son
Md. Ali aged about three years and left them with the appellant, and
one child namely, Abhiha Zahra was left in the house at Barabanki.
The respondent and his father again came on 14.09.2014 at 3:00 PM
and took away both the children and went to their house at Uttar
Pradesh.
It has been submitted on behalf of counsel for the appellant
that appellant is the natural guardian of the aforesaid children and
children need motherly love and affection and also for the welfare of
minor child, custody and guardianship should be given to the mother
appellant. The appellant filed a Guardianship Application in the Court
of Principal Judge, Family Court, Patna being Guardianship Case No.
21 of 2015 but the Family Court dismissed the Guardianship Case of
the appellant for lack of territorial jurisdiction of Family Court at
Patna.
Section 9(1) of the Guardians and Wards Act, 1890 defines
the territorial jurisdiction under which Guardianship petition can be
filed, and it is stated therein that a petition for Guardianship and
Custody could be filed in the District Court having jurisdiction in the
place where the minor ordinarily resides. In the present case
admittedly the appellant was living with her husband in Barabanki,
Uttar Pradesh where all the three minor children were also living with
them, and on account of some differences, appellant came to parental
home at Patna and filed a Guardianship Case in Family Court, Patna,
which has no territorial jurisdiction over the matter.
After considering the facts of present case, we are of the
view that the Family Court at Patna has no jurisdiction to entertain
petition under the Guardianship and Wards Act, 1890 for custody of
minor child of appellant and the Family Court has rightly rejected the
petition of appellant on the ground of lack of territorial jurisdiction
over the matter. The appellant should approach the Court which has
jurisdiction over the matter.
This appeal as such is dismissed.