Gujarat High Court
Anil S/O Mogji Bariya vs Priyanka W/O Anil Mogji Bariya on 27 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4022/2023 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4022 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4022 of 2023
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ANIL S/O MOGJI BARIYA
Versus
PRIYANKA W/O ANIL MOGJI BARIYA
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Appearance:
MR ISHAN H RAJDEV(11634) for the Appellant(s) No. 1
MR UVESH M SHAIKH(11313) for the Appellant(s) No. 1
MR. VANRAJSINH M DAMORE(3787) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 27/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. Heard Mr. Ishan H. Rajdev, learned Counsel for the appellant and Mr. Vanrajsinh M. Damore, learned Counsel for the respondent.
2. Admit. Mr. Vanrajsinh M. Damore, learned Counsel waives service of notice of admission for the respondent.
3. Since the issue involved in this appeal is short, and both the learned advocates for the respective parties' consent for final Page 1 of 5 Uploaded by RINKU MALI(HC01574) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:43:54 IST 2025 NEUTRAL CITATION C/FA/4022/2023 ORDER DATED: 27/01/2025 undefined hearing and also when the Counsel for the respondent agrees that the matter can be sent back for a fresh hearing, we have taken up the matter for final hearing.
4. The respondent in this appeal filed an application under Section 25 of the Guardians and Wards Act, 1890 in the Court of the Principal Judge, Family Court at Bhuj-Kachchh. By the aforesaid application, the respondent sought the custody of her daughter Makshika aged approximately 3 years from the appellant. The Family Court by its order dated 25.07.2023, allowed the application and directed the appellant-original opponent to hand over the custody of minor daughter to the respondent-original applicant forthwith. Aggrieved by this, the appeal is preferred.
5. Mr. Ishan H. Rajdev, learned Counsel for the appellant would submit that the order passed by the Family Court is erroneous inasmuch as, the Family Court at Bhuj-Kachchh had no jurisdiction. He would submit that under the provisions of the Page 2 of 5 Uploaded by RINKU MALI(HC01574) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:43:54 IST 2025 NEUTRAL CITATION C/FA/4022/2023 ORDER DATED: 27/01/2025 undefined Act, especially Section 9 of the Act, the jurisdictional Court to entertain the application would be Dahod inasmuch as, the daughter was with the appellant who was residing at Dahod.
6. Mr. Vanrajsinh M. Damore, learned Counsel for the respondent would oppose this contention and submit that it is not open for the appellant to raise such a contention now at this stage that, the appellant did not contest the application. The appellant did not file a written statement and also did not challenge the evidence and therefore, at this stage to contend in the appeal that very judgment is erroneous, is misconceived.
7. Having considered the submissions made by the learned Counsel for the respective parties, we note that appellant had not participated in the proceedings before the Family Court at Bhuj- Kachchh apart from not filing written statement. We therefore, intend to remand the matter to the Family Court at Bhuj- Kachchh.
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NEUTRAL CITATION C/FA/4022/2023 ORDER DATED: 27/01/2025 undefined
8. Since the contention has been raised on the question of jurisdiction of the Family Court at Bhuj-Kachchh, the appellant undertakes that on remand when the matter is listed for fresh hearing before the Family Court at Bhuj-Kachchh, on the first date when the case is listed before the Family Court at Bhuj- Kachchh, the appellant undertakes to file a Written Statement taking all the contentions available including the contention as to the jurisdiction of the Family Court at Bhuj-Kachchh in deciding the application.
9. In light of the above, the order dated 25.07.2023 passed by the Family Court at Bhuj-Kachchh in CMA No.8 of 2022 is quashed and set aside only on the ground of the absence of the appellant before the Court. We clarify that we have not examined the issue of the order on merits.
10. It is open for the Family Court at Bhuj-Kachchh to decide the case afresh. However, we request the Family Court to consider the issue of jurisdiction as a preliminary issue and Page 4 of 5 Uploaded by RINKU MALI(HC01574) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:43:54 IST 2025 NEUTRAL CITATION C/FA/4022/2023 ORDER DATED: 27/01/2025 undefined decide the same accordingly. The Family Court at Bhuj- Kachchh shall decide the application on remand preferably within a period of 6 months from the date of receipt of the copy of this order.
11. The appellant shall pay cost of Rs.5,000/- to the respondent, on which, the respondent shall be entitled to withdraw the same before the first date of hearing of the family suit. The appellant shall deposit the cost before the Family Court within a period of two weeks from today. The Family Court at Bhuj-Kachchh on the deposit of cost, shall hear the matter without issuing a fresh summons, on an undertaking that the appellant and Respondent shall appear before the Family Court at Bhuj-Kachchh on its first date of listing.
12. Appeal is allowed to the aforesaid extent. Accordingly, Civil Application stands disposed of.
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