Prakash S/O Yadaorao Tembhare And ... vs Smt. Vaishali W/O Prakash ...
2021 Latest Caselaw 16213 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

            MISC. CIVIL APPLICATION (REVIEW) NO. 575 OF 2021
                                   IN
                    WRIT PETITION NO. 577 OF 2012(D)
                     ( Shri Prakash So Yadavrao Tembhare & Anr.
                                          Vs.
                        Smt. Vaishali W/o Prakash Tembhare )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. R.L. Khapre, Senior Advocate a/b Mr. D.R. Khapre, Advocate for the
                                  Applicants/Appellants.



                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 23rd NOVEMBER, 2021.

Heard Mr. R.L. Khapre, learned Senior Counsel for the applicants/appellants.

2. Mr. Khapre, learned Senior Counsel for the applicants/appellants submits, that the provisions of the Hindu Minority and Guardianship Act, 1956 (hereinafter to be referred as "the Act of 1956"), in view of the language of Section 2 are in addition to and not in derogation to the provisions of the Guardians and Wards Act, 1890, (hereinafter to be referred as "the Act of 1890") except to the extent as may be expressly provided. He further submits, that except for Section 8 there is no other provisions in which the Court is empowered to pass any orders. Section 6 in his contention, is merely a declaratory Section, which

2 21.MCA.575-21 IN WP 577-12.odt

declares who are the natural guardians of the Hindu minor. He therefore submits, that in absence of any provision of appeal in the Act of 1956, provision of Section 7 of the Act of 1890, are attracted, in the matter of guardianship, and therefore, any order passed regarding custody of a child under the Act of 1956, will have to be construed as an order read with Section 7 of the Act of 1890, and therefore, will be appealable in view of Section 47 of the Act of 1890.

3. That apart, in view of the fact, that the Letters Patent Appeal No.371/2012 filed by the applicants/appellants against the judgment sought to be reviewed, has since been withdrawn by the order dated 07.10.2021, in view of its non-maintainability, in the light of the judgment of the Hon'ble Apex Court in Jogendrasinghji Vijaysinghji Vs. State of Gujarat & Others [(2015) 9 SCC 1], he submits that there is need for review of the judgment passed in Writ Petition. Issue notice to the respondent, returnable in two weeks.

4. In the meantime, interim order passed in L.P.A. No. 371/2012 dated 31.07.2013 be continued till the returnable date, as the child who is with the father is reported to be 15 years of age.

JUDGE SD. Bhimte