Smt. Surbhi Khanna vs Shri Amit Khanna
2015 Latest Caselaw 1883 Del

Citation : 2015 Latest Caselaw 1883 Del
Judgement Date : 4 March, 2015

Delhi High Court

Smt. Surbhi Khanna vs Shri Amit Khanna on 4 March, 2015

Author: Kailash Gambhir

$~5
*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                    Date of Order: 04.03.2015

+        MAT.APP.(F.C.) 112/2014

         SMT. SURBHI KHANNA
                                                                       ..... Appellant
                                Through      Mr. Rajan Khosla, Adv. for
                                             Mr. Vivek Srivastava, Adv. along
                                             with appellant in person.

                       versus

         SHRI AMIT KHANNA
                                                                ..... Respondent
                                Through      Mr. Vijay Waghey & Ms. Manju
                                             Bhatnagar, Advs.

         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
         HON'BLE MR. JUSTICE I.S.MEHTA


                                 ORDER

04.03.2015

KAILASH GAMBHIR, J (ORAL)

1. By this petition, the appellant seeks to challenge the tenability of the

order dated 21.02.2014 passed by the learned Family Court, North East

District.

2. The petitioner has contended that the learned Family Court has failed

to appreciate that she had filed a petition under Section 25 of the Guardians

and Wards Act for the appointment/declaration of guardian and custody of

minor child namely Master Daksh, aged about 5 years 2 months and the

learned Family Court after placing reliance on Section 9 Clause (1) of the

said Act has taken a view that the Court does not have the territorial

jurisdiction because the ordinary place of residence of the minor is situated

in the territorial jurisdiction of Ghaziabad District Court. Contention of the

petitioner is that in her petition she had clearly stated that on the night of

20th April, 2012 the respondent gave beatings to her for not fulfilling his

demand of dowry and threatened to do away with her and to remarry with a

rich girl known to him and it is in this background that she had left the

matrimonial home along with the minor child and reached the house of her

mother on the same day. The petitioner in the petition also averred that on

15.05.2012, in the evening the respondent Nos.2 and 3 came to the house of

her mother on the pretext of seeing minor son and with an excuse to provide

some gifts, took the minor to the market but they did not return back and in

this manner they virtually kidnapped the son of the petitioner. The

petitioner immediately called the PCR and lodged the complaint against the

respondents for illegally removing the custody of the child from her. The

petitioner further submits that it is not in dispute between the parties that the

mother of the petitioner is a resident of P-6, A-2, Dilshad Garden, Delhi and

as per the allegations levelled by her in the petition she has claimed illegal

removal of the custody of the minor child from the house of her mother

which is well within the jurisdiction of the Family Court of North East

District, Delhi.

3. Based on these submissions, the petitioner prays that directions be

given to the learned Family Court, North East District to decide the petition

preferred by her on merits. The present petition is opposed by Mr. Vijay

Waghey, counsel appearing for the respondent. Counsel submits that

learned Family Court has rightly held that under Section 9 it is the place of

the residence of minor which will determine the jurisdiction of the present

case. The husband of the petitioner is a permanent resident of Flat No.C-1

to C-4, Shalimar Garden, Extension-01, Sahibabad-7, Ghaziabad, U.P.

which was the matrimonial house of the parties and where the minor child

has also been residing. Counsel also submits that so far as the allegation of

the petitioner that the minor child was illegally removed from her custody at

P-6, A-2, Dilshad Garden, Delhi is concerned, the same is a disputed

question of fact since the minor child was already in his custody.

4. Learned counsel for the petitioner has filed the petition under Section

9 of the Guardian and Wards Act, 1890 and prayed that the respondent be

directed to hand over the custody of the male child namely Master Daksh to

the petitioner as per Section 25 of the Guardianship Act. The prayer para of

the said petition is reproduced as under:-

"It is therefore, most respectfully and humbly prayed that the respondent may kindly be directed to hand over the custody of male child namely Daksh aged about 5 years 2 months to the petitioner, as per the section 25 of the Guardianship and Wards 1890, in the interest of justice."

5. We may also reproduced Section 25 of the Guardian and Wards Act,

1890:-

"25. Title of guardian to custody of ward.-- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).