Arvind Kumar v Special Judge Family Court Dehradun and another
Uttarakhand High Court
20 June 2013
W.P. No. 2132 of 2007 (M/S)
The Judgment was delivered by : B. S. Verma, J.
1. Heard Mr. Nagesh Aggarwal, Advocate for the petitioner and Mr. Pankaj Tangwan, Brief Holder for the respondent no.1.
2. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 4.10.2007 (Annexure-6) passed by Special Judge, Family Court, Dehradun in Execution Case No.6/2007.
3. Brief facts of the case, as narrated in the writ petition are, that petitioner filed a suit u/s. 10 and 25 of the Guardians and Ward Act r/w S. 6 of the Hindu Minority of Guardians Act in respect of the custody of his minor son Master Anand Kumar @ Yashraj Chaudhary alleging therein that his wife without telling and informing him illegally took away his minor son from his custody to her parental home. Notices were issued to the respondent no.2/wife but she did not appear in the court. Ultimately, the case was decided ex-parte and decreed on 17.3.2007 in favour of the petitioner. When the respondent no.2 did not comply the direction of the court passed in order dated 17.3.2007 and the decree dated 26.3.2007, the petitioner filed an execution application for executing the order dated 17.3.2007 and decree dated 26.3.2007. Vide order dated 4.10.2007, Special Judge, Family Court, Dehradun, rejected the execution application of the petitioner. Feeling aggrieved, the petitioner has filed the present writ petition before this court.
4. By perusal of the impugned order, it transpires that the application has been rightly rejected by the executing court on the ground that there was no averment in the order dated 17.3.2007 that mother of the ward has taken away the child forcibly from the custody of the decree holder.
5. Furthermore, as per S. 9 of the Guardians and Wards Act, 1890, the court was not having jurisdiction to pass the order dated 17.3.2007 since it is an admitted case of the petitioner that the child was living with his mother at Kolkata.
6. For facility, S. 9 of the Guardians and Wards Act, 1890 is quoted hereunder:-
“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.
(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.”
7. For the reasons recorded above, the writ petition lacks merit and is dismissed.
Petition dismissed
