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
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C/FA/4022/2023 ORDER DATED: 27/01/2025
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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
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C/FA/4022/2023 ORDER DATED: 27/01/2025
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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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C/FA/4022/2023 ORDER DATED: 27/01/2025
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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
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C/FA/4022/2023 ORDER DATED: 27/01/2025
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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.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
