Bombay High Court
Shri. Pravin S/O Shripatrao ... vs Smt. Alka D/O Namdeo Khedkar on 9 March, 2021
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
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J207fca45.17with44.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 44 OF 2018
WITH
FAMILY COURT APPEAL NO. 45 OF 2017
FAMILY COURT APPEAL NO. 44 OF 2018
Shri Pravin s/o Shripatrao Sheware
Aged about 45 years, Occ. - Service,
R/o. 199, Pandey Layout, Khamla,
Nagpur .... APPELLANT
VERSUS
Smt. Alka D/o Namdeo Khedkar
Aged about 42 years, Occ. Service,
R/o J.B. Nagar/District Mining
Collector of Chandrapur
Chandrapur ...RESPONDENT
WITH
FAMILY COURT APPEAL NO. 45 OF 2017
Pravin Shirpatrao Sheware
Aged about 39 years, Occ. - Service,
R/o. 199, Pandey Layout, Khamla,
Nagpur .... APPELLANT
VERSUS
Alka Pravin Sheware,
Aged about 39 years, Occ. Service,
Office of the District Mining,
Administrative Building,
Collector of Chandrapur ...RESPONDENT
___________________________________________________________
Shri R.K. Maheshwari, Advocate for the appellant.
Shri Abhijeet Sambaray, Advocate for the respondent.
___________________________________________________________
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J207fca45.17with44.18.odt
CORAM : A.S. CHANDURKAR AND
PUSHPA V. GANEDIWALA, JJ.
DATED : MARCH 09, 2021.
JUDGMENT (Per Pushpa V. Ganediwala, J.) :
Heard Shri R.K. Maheshwari, learned counsel for
the appellant and Shri Abhijeet Sambaray, learned counsel for
the respondent.
2. These are the appellant/husband's appeal under
Section 19 of the Family Courts Act, 1984 against the orders
passed by the Family Court, Nagpur in his petitions for
custody/access of minor daughter Bhumika aged about 15
years (DOB is 23/03/2006).
3. The Family Court Appeal No. 44/2018 is directed
against the order dated 24/10/2016 passed in the petition No.
D-13/2016 by which the petition is dismissed on the ground of
want of territorial jurisdiction and want of fresh cause of
action. The review against the same order also came to be
dismissed vide order dated 04/11/2017 in M.J.C. No. 14/2017.
J207fca45.17with44.18.odt
4. The Family Court Appeal No. 45/2017 is directed
against the order dated 24/05/2017 in M.C.A. No. 11/2016 by
which the Family Court, Nagpur rejected the husband's prayer
for granting visitation rights for the daughter - Bhumika, in the
paramount welfare of the child and directed the parties to
resolve the issue of access to their minor daughter through the
process of Mediation.
5. Facts in brief, the marriage between the parties was
solemnized on 19/06/2005 and the same got dissolved by a
decree of divorce by mutual consent in Petition No.
A-473/2011. Out of this wedlock they are blessed with one
daughter Ku. Bhumika, presently in the custody of respondent/
mother.
6. The appellant/husband had filed a petition No.
D-13/2016 under Section 6 of the Guardians and Wards Act,
1890 for the custody of minor daughter Bhumika. Prior to
filing of this petition, the appellant/husband had filed one
more petition for custody i.e. petition No. D-27/2012 which
was dismissed on 29/08/2013. The appeal against the said
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decree bearing First Appeal No. 283/2014 also came to be
dismissed on 15/04/2015. On new cause of action, the
appellant/husband filed a petition No. D-13/2016. In the
meantime, the appellant/husband also filed a Writ Petition No.
6117/2015 for access of the minor daughter Bhumika, which
came to be dismissed by this court by an order dated
21/03/2016.
7. There was an issue of maintainability in petition
No. 13/2016 before the trial Court. The trial Court has
recorded a negative finding with regard to maintainability of
the petition on the ground that the appellant/husband has
failed to show a fresh cause of action for filing this petition.
The learned Family Court also observed that as during the
pendency of the petition, the respondent/wife transferred to
Chandrapur and the minor is in her custody, therefore, the
Family Court is seized to have territorial jurisdiction from
23/06/2016, the date she has shifted to Chandrapur.
Ultimately, the Family Court dismissed the petition for want of
maintainability.
J207fca45.17with44.18.odt
8. With regard to point of maintainability of the
petition for want of fresh cause of action, learned counsel for
the appellant/husband brought to our notice the judgment of
the Hon'ble Apex Court in the case of Ashish Ranjan Vs.
Anupma Tandon and anr. (2010) 14 SCC 274 wherein in
paragraph No. 18 the Hon'ble Court noted that "It is a settled
legal proposition that while determining the question as to
which parent the care and control of a child should be given,
the paramount consideration remains the welfare and interest
of the child and not the rights of the parents under the statute.
Such an issue is required to be determined in the background
of the relevant facts and circumstances and each case has to be
decided on its own facts as the application of doctrine of stare
decisis remains irrelevant insofar as the factual aspects of the
case are concerned."
9. With regard to the territorial jurisdiction of the
Family Court, Nagpur, both the learned counsel are at ad idem
that the Family Court, Nagpur has the jurisdiction to try the
petition given the facts that at the time of filing the petition the
respondent and minor daughter Bhumika were residing in
J207fca45.17with44.18.odt
Nagpur. Since the respondent is in Government Service, she
was transferred to Chandrapur during the pendency of the
petition No. D-13/2016, the Family Court, Nagpur does not
lose its territorial jurisdiction.
10. Considering the settled legal position with regard to
the recurring cause of action for the custody of a child and
what is material, is the paramount welfare of the child, and
considering the consensus between both the counsel with
regard to the territorial jurisdiction of the Family Court,
Nagpur to deal with the petition we allow the Family Court
Appeal No. 44/2018 and restore the petition No. D-13/2016 to
the file of Family Court, Nagpur to its original number with the
directions to the learned Judge, Family Court, Nagpur to decide
the same in accordance with law as expeditiously as possible
preferably within a period of one year from the date of
communication of this order.
11. It is pertinent to note here that the petitioner has filed
D-13/2016 petition for the custody of the minor daughter u/s
6 of the Gaurdians and Wards Act, 1890. In our view the
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petition for the custody of minor daughter by a father, the
natural guardian, would not be maintainable under the said
Act as the purpose and object of the said Act is different. The
petitioner is at liberty to seek amendment to the petition and
substitute the appropriate provision of law for the custody of
the minor.
12. Having regard to the issues involved in both these
petitions are the same, i.e., the custody/access of the minor
daughter Bhumika, in our considered opinion, F.C.A. No.
45/2017 arose out of the M.C.A. No. 11/2016 can be disposed
of with a liberty to the appellant/husband to move a fresh
application, if so advised, in the petition No. D-13/2016.
Accordingly, the F.C.A. No. 45/2017 is disposed of with the
aforesaid liberty.
13. The parties to appear before the Family court,
Nagpur on 05/04/2021.
14. R. & P. be sent back immediately.
J207fca45.17with44.18.odt
15. In the meantime, the arrangement for access of the
daughter - Bhumika as fixed by this Court vide order dated
18/12/2020 passed in F.C.A. No. 45/2017 would be continued,
without prejudice to the rights of the parties.
16. Thus, F.C.A. No. 44/2018 is allowed and F.C.A. No.
45/2017 is disposed of with liberty as granted above. The
parties shall bear their own costs.
JUDGE JUDGE
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