Tejwati vs Jeet Ram

Ajay Kumar Mittal, J.

By way of the instant appeal, the appellant has challenged the order dated 5.4.2014 passed by the District Judge, Family Court, Gurgaon whereby the application filed by her for setting aside the ex-parte judgment and decree dated 10.2.2011 passed in a petition under Section 25 of the Guardian and Wards Act, 1890 (in short "the Act") read with Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, was dismissed. Put shortly, the facts necessary for adjudication of the present appeal as narrated therein may be noticed. The marriage of the respondent with Smt. Sunita (since deceased) was solemnized on 22.1.1999 as per Hindu rites and ceremonies. Out of the said wedlock, minor son, Gaurav was born on 19.10.1999. However, on 11.4.2000, Smt. Sunita set ablazed herself and as a result thereof, she died due to burn injuries. The FIR was registered against the respondent. However, he was acquitted by the trial court. Thereafter, the appellant along with his son came to the house of the respondent and requested him to send the minor son with her. The minor was sent with the appellant in the year 2002 and since then he was in the custody of the appellant. However, the respondent visited the house of the appellant to see his child and to take him back but he was not allowed to take the child with him. He also deposited Rs. 3 lacs in the shape of FDR in the name of the minor and was also providing funds to the appellant to look after the minor. The appellant was an old lady aged 68 years and had no source of income. Accordingly, the respondent filed a petition for custody of the minor, namely, Gaurav. The appellant did not appear despite service to contest the petition and was, therefore, proceeded against ex-parte. The trial court vide ex-parte judgment and decree dated 10.2.2011 allowed the petition and the respondent was declared as guardian of the person and" property of the minor child Gaurav. The appellant was directed to hand over me custody of the minor within three months from the date of passing of the judgment and decree. Feeling aggrieved, the appellant filed an application for setting aside the ex-parte judgment and decree dated 10.2.2011. The trial court vide order dated 5.4.2014 dismissed the said application. Hence, the present appeal.

Learned counsel for the appellant, inter alia, submitted that in view of Section 9 of the Act, the jurisdiction was of Delhi courts as the child and the appellant were residing at Delhi. It was also urged that the marriage was solemnized in the year 1999 whereas the petition for custody was filed in 2009. It was further contended that the trial court was in error in initiating ex-parte proceedings against the appellant. According to the learned counsel, the appellant had never refused to receive summons and in fact the respondent had given the incomplete address of the appellant at Delhi. Even the address given on me envelope for service through registered post was incomplete and the postal authorities reported that without address of house number, mohalla etc., the registered envelope could not be delivered.

On the other hand, learned counsel for the respondent supported the order dated 5.4.2014 as well as the ex-parte judgment and decree dated 10.2.2011 passed by the trial court. Learned counsel further submitted the appellant was properly served but she did not appear.

After hearing learned counsel for the parties and perusing the record, we find merit in the appeal.

Section 9(1) of the Act which is relevant for resolving the present controversy reads thus:

"9. Court having jurisdiction to entertain application.- (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides."

According to Section 9(1) of the aforesaid Act, the petition in respect of guardianship of the person of the minor child is concerned, it shall be presented to the District Court where the minor ordinarily resides. It is discernible from a perusal of the petition that the address of the appellant is of Delhi. It was not disputed that the appellant is ordinarily residing at Delhi. Further, on a query being put to the learned counsel for the respondent that when the child and the mother (the appellant herein) were residing at Delhi, in terms of Section 9 of the Act, how the jurisdiction of the Court at Gurgaon was made out, learned counsel without giving any concrete reply maintained that the petition had been rightly filed at Gurgaon. Furthermore, from the record, it transpires that there has been an endorsement by the postal authorities that there was incomplete address given on the registered covers. In such circumstances, it could not be held that valid service had been effected upon the appellant.

The question regarding jurisdiction in terms of Section 9 of the Act and the petition for custody of the minor, namely, Gaurav, having been filed after a period of 10 years is required to be gone into by the trial court after hearing the concerned parties. Accordingly, in view of the above, the order dated 5.4.2014 and the ex-parte judgment and decree dated 10.2.2011 (Annexure A-2) passed by the trial court are set aside. However, without expressing any opinion on the merits of the case, the case is remitted to the trial court who shall look into the matter in terms of the order passed by this Court and decide the same afresh in accordance with law after affording an opportunity of hearing to the parties within a period of six months from the date of receipt of a certified copy of this order.