Gujarat High Court
Gauravbhai Pravinbhai Bin Gordhanbhai ... vs Jaiminiben D/O Nanjibhai Ramjibhai ... on 21 February, 2025
NEUTRAL CITATION
C/FA/2462/2024 ORDER DATED: 21/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2462 of 2024
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GAURAVBHAI PRAVINBHAI BIN GORDHANBHAI MACHI
Versus
JAIMINIBEN D/O NANJIBHAI RAMJIBHAI MAKWANA
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Appearance:
ADITYA R GUNDECHA(8869) for the Appellant(s) No. 1
MR AMIT N PATEL(2749) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 21/02/2025
ORAL ORDER
1. Heard Mr. Aditya R. Gundecha, learned advocate on record for the appellant and Mr. Amit N. Patel, learned advocate on record for the respondent.
2. The present appeal is filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as, "the Code") at the instance of the original respondent, being aggrieved and dissatisfied with the judgment and order dated 20.05.2023 passed by learned 2nd Additional District Judge, Petlad in Civil Misc. Application No.7 of 2023 (henceforth "the impugned judgment and order").
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NEUTRAL CITATION C/FA/2462/2024 ORDER DATED: 21/02/2025 undefined 2.1 By the said impugned judgment and order, the learned Judge has allowed the application preferred by the respondent-mother preferred under Section 25(1) of the Guardians and Wards Act, 1890 (for short, "the Act of 1890") seeking permanent custody of the minor daughter-Sanvi.
3. It is an undisputed fact that the present appellant, who is the father of the minor daughter-Sanvi, had submitted written statement at Exh.10, wherein he had agreed to hand over the custody of daughter-Sanvi to the applicant being her mother and natural guardian. Considering the aforesaid consensus prevailing between the parties as gathered from the written statement filed by the appellant, the learned Judge by impugned order had proceeded to allow such application thereby directing the present appellant to immediately hand over the permanent custody of minor Sanvi to the applicant- mother. At the same time, the learned Judge noticing the consensus prevailing between the parties has permitted the present appellant- father to visit/meet minor daughter Sanvi on last Sunday of every month. At the same time, the applicant-mother was also directed not to raise any objection against such meeting of the appellant-father with the child. Thus, the challenge is to a consent order being passed by the learned Judge on an application preferred under Section 25(1) Page 2 of 6 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:30:58 IST 2025 NEUTRAL CITATION C/FA/2462/2024 ORDER DATED: 21/02/2025 undefined of the Act of 1890.
4. Learned advocate for the appellant, at the outset, had submitted that the present appeal is preferred under Section 47 of the Act of 1890, more particularly, in light of Clause (c) , which permits the order passed under Section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, subject to appeal.
5. Noticing the fact that the order under challenge is a consent order, this Court had inquired from the learned advocate for the appellant as to what error can be found with the approach of learned Judge in passing the impugned order of handing over the permanent custody of the child to the respondent-father. Learned advocate had emphasized on the fact that after handing over of the custody of the child to the respondent-mother, the mother has failed to perform her duties, which she has been entrusted to act as an guardian. It was pointed out that after handing over of the child, the mother has in fact, left her with mercy of the grand parents as she has shifted abroad.
6. Except for the aforesaid submissions, no other error of fact or Page 3 of 6 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:30:58 IST 2025 NEUTRAL CITATION C/FA/2462/2024 ORDER DATED: 21/02/2025 undefined law was pointed out by learned advocate for the appellant.
7. As regards the aforesaid submissions of learned advocate for the appellant, the Court finds that the appropriate remedy available to the appellant would be as provided under Section 39 of the Act of 1890. At this stage, it would be appropriate to reproduce the Section 39 of the Act of 1890, which reads thus:
"39. Removal of guardian. --The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely:--
(a) for abuse of his trust;
(b) for continued failure to perform the duties of his trust;
(c) for incapacity to perform the duties of his trust;
(d) for ill-treatment, or neglect to take proper care, of his ward;
(e) for contumacious disregard of any provision of this Act or of any order of the Court;
(f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward;
(g) for having an interest adverse to the faithful performance of his duties;
(h) for ceasing to reside within the local limits of the jurisdiction of the Court;
(i) in the case of a guardian of the property, for Page 4 of 6 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:30:58 IST 2025 NEUTRAL CITATION C/FA/2462/2024 ORDER DATED: 21/02/2025 undefined bankruptcy or insolvency;
(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject:
Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not, shall not be removed--
(a) for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that that person made and maintained the appointment in ignorance of the existence of the adverse interest, or
(b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian."
8. The plain reading of the aforesaid provision, confers the jurisdiction on the court to remove a guardian appointed by Will or other instrument or to the Court, where the Court notices that the guardian has abused his trust or has continuously failed to perform the duties of his trust or the guardian has neglected to take proper care of his ward.
9. In view of the aforesaid provision, this Court is of the view that the appropriate remedy available would be under Section 39 of the Page 5 of 6 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:30:58 IST 2025 NEUTRAL CITATION C/FA/2462/2024 ORDER DATED: 21/02/2025 undefined Act of 1890. In absence of any error of fact or law being pointed out by the learned advocate for the appellant, no appeal under Section 47 of the Act, would lie aganist a consent order. It is also to be noted that the appeal has been preferred in light of Section 96 of the Civil Procedure Code read with Order XLI Rule 1, as rightly pointed out by learned advocate for the respondent, the consent order cannot be a subject matter of challenge in appeal preferred under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code, 1908.
10. For the foregoing reasons, the appeal is not entertained and is hereby dismissed.
11. It is clarified that this Court has otherwise not gone into the merits of the case.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 6 of 6 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri Feb 21 2025 Downloaded on : Sat Feb 22 03:30:58 IST 2025