Smt. Gunjan Bhargava vs Sri Gaurav Bhargava

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 09.01.2013 passed in G & WC No. 136/2011 on IA-IV filed u/s 10 read with Section 151 of CPC. The order is impugned at Annexure-F to the petition. The petitioner herein is the wife of the respondent. Due to certain marital discord, they were before the Family Court in M.C. No. 2378/2006 which was instituted by the petitioner seeking restitution of conjugal rights and the respondent herein filed M.C. No. 903/2007 for dissolution of marriage. The family Court by its judgment dated 28.02.2011 has dismissed the petition filed by the petitioner herein and has allowed the petition filed by the respondent. It is not in dispute that against the said judgment, a Miscellaneous First Appeal is filed before this Court and the same is pending consideration.

When this was the position, the respondent herein has filed a petition u/s 25 of the Guardians and Wards Act in G & WC No. 136/2011 seeking custody of the child. The petitioner herein filed an application u/s 10 read with Section 151 of CPC seeking stay of further proceedings of the said petition on the ground that the matter is pending before this Court in Miscellaneous First Appeal and the very basis on which the dissolution of marriage was ordered is on a similar pleading and therefore the parties should await the decision in the Miscellaneous First Appeal. The said application was objected to by the respondent. The Family Court by the impugned order dated 09.01.2013 has rejected the application and as such, the matter before the Court below in G & WC would be proceeded with. It is in that circumstance, the petitioner is before this Court.

Learned counsel for the petitioner on referring to the averments made in the petition as at Annexure-B would contend that the averments made therein to justify the petition seeking custody is to the very same effect relating to the mental condition of the petitioner herein and since that issue has been considered by the Family Court while disposing of the petition for dissolution of marriage, the correctness of such finding is pending before this Court and hence, the petition presently filed on similar pleadings cannot proceed any further. It is in that circumstance, the learned counsel would contend that it would amount to duplication of the proceedings and therefore the matter be stayed.

Learned senior counsel representing the respondent would point out that when a petition u/s 25 of the Guardians and Wards Act is filed, the Court below would have to consider all aspects relating and relevant to the custody of the child. In that circumstance, the pleading relating to mental condition of the petitioner is one of the circumstances which has been stated in the petition along with the other pleadings and the Court below based on the evidence available and also keeping in view the welfare of the child will have to decide upon the custody. They are all matters which would require consideration by the Family Court irrespective of the result of the Miscellaneous First Appeal. It is therefore contended that the Court below was justified.

In the light of the contentions and the pleadings put forth, certainly as seen from the portions of the averments made in the petition, it refers to the mental condition of the petitioner. Having noticed this aspect, what is also to be kept in view is that in a petition seeking custody, the Family Court will have to consider all aspects of the matter including the aspect relating to the health and mental status of the petitioner which would also be one of the considerations. Therefore, even assuming for a moment that the Miscellaneous First Appeal is decided in favour of the petitioner herein, there would be other aspects which would still have to be considered by the Family Court, if the need for deciding the custody of the child remains open. Therefore, in such circumstance, I am of the opinion that staying the proceedings in its entirety would not be in the interest of the parties since if ultimately the matter is to proceed after the appeal is disposed of, the period lost would be to the disadvantage of the parties. Hence, keeping these aspects in view, it would be appropriate to direct the Family Court to proceed with the matter insofar as recording the evidence of the parties. Thereafter, the Family Court is directed to find out from the parties with regard to the stage or the result of the Miscellaneous First Appeal before hearing the arguments in the case. It is made clear that if as on such date, the Miscellaneous First Appeal is still pending before this Court, the Family Court shall stay its hands from hearing the arguments or to proceed to pronounce the judgment, which would be done only after the Miscellaneous First Appeal is disposed of.

With the said modification to the order impugned herein, the petition stands disposed of.