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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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)
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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
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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
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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
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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
