Telangana High Court
Pathuri Priya Rai vs Pathuri Ranjith Kurnar Goud on 12 February, 2025
THE HON'BLE SMT. JUSTICE T.MADHAVI DEVI
CIVIL REVISION PETITION No.139 of 2025
ORDER:
This Civil Revision Petition is filed by the petitioner against the order
of the Principal District and Sessions Judge at Siddipet dated 20.12.2024 in
I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024 in granting ad-interim
injunction against the respondent restraining her or anybody claiming
through her from interfering with the custody of his minor child namely
Pathuri Shivin Goud. The interim injunction was granted till 20.01.2025.
2. The revision petitioner herein is the mother of the minor child and is
respondent in I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024 on the file of
the Principal District and Sessions Judge at Siddipet and respondent herein
is the father of the minor child and the petitioner in the said I.A. For the
sake of convenience, the parties hereinafter will be referred to as per their
array in this revision petition.
3. Brief facts leading to the filing of the present Civil Revision Petition
are that the G.W.O.P.No.26 of 2024 was filed by the respondent herein
under Section 7(1)(a)(b) read with Section 25 of the Guardian and Wards
TMD,J
Act, 1890. The revision petitioner and respondent were married and out of
their wedlock, a child by name Pathuri Shivin Goud was born on
22.09.2020. It is stated that due to differences amongst them, the marriage
ended in a divorce by grant of divorce decree vide H.M.O.P.No.185 of 2022
on the file of the Principal Senior Civil Judge Court at Siddipet, and the
petitioner herein left the house of the respondent along with minor child,
Pathuri Shivin Goud. It is stated that the petitioner herein allowed the
respondent to visit the child and the respondent requested and took the
custody of the child on 13.12.2024 and did not return him to the petitioner
on the strength of the impugned ex-parte injunction order. In the O.P., the
respondent has stated that the child is with him and he is taking care of the
child and he even admitted the child in a school and he sought permanent
custody of the minor child, Pathuri Shivin Goud and has filed I.A.No.987 of
2024 for ad-interim injunction against the respondent therein under Order
XXXIX Rules 1 & 2 of C.P.C. The Court of the Principal District and
Sessions Judge at Siddipet, vide order dated 20.12.2024 has granted ad-
interim injunction against the respondent therein. Challenging the same, the
present Civil Revision Petition is filed by the respondent in the
G.W.O.P.No.26 of 2024 i.e., the mother of the minor child.
TMD,J
4. The revision petitioner in the Civil Revision Petition raised the
following grounds against the order in I.A.No.987 of 2024 in
G.W.O.P.No.26 of 2024 on the file of the Principal District and Sessions
Judge at Siddipet:
i. The principles of prima facie case, balance of convenience and
irreparable loss and injury to the parties seeks relief has not been
established in the case for granting of ad-interim injunction.
ii. Child is below five years and therefore, the custody of the child
should be with the mother.
iii. Under Section 4A of the Guardians and Wards Act, 1890, it is the
Court subordinate to the District Judge which is entrusted with such
matters and at Siddipet, the Senior Civil Court is the family court
whereas, the impugned petition has been filed and entertained by the
District Court and therefore, there is no jurisdiction to the District
Court to entertain the above petition.
iv. That no appeal lies against the interlocutory order and since there is
no other alternative remedy, this C.R.P. under Article 227 of the
Constitution of India is filed.
TMD,J
v. The trial Court has not given any finding about the incompetence of
the mother for having the custody of the child below the age of 5
years and has ignored the welfare of the minor while passing the ad-
interim injunction order.
5. In support of the above contentions, the learned counsel for the
petitioner has placed reliance upon the following decisions:
i. Dalpat Kumar and another v. Prahlad Singh and others 1
ii. Pushpa Singh v. Inderjit Singh2
iii. Mausami Moitra Ganguli v. Jayant Ganguli 3
iv. Gaurav Nagpal v. Sumedha Nagpal 4
6. Learned counsel for the respondent, on the other hand, submitted that
the C.R.P. is not maintainable as the order under revision is an appealable
order and therefore, the petitioner either should have filed an appeal and if it
is claimed to be an unreasoned order, the petitioner should have approached
the trial Court by filing a stay vacate petition. Learned counsel for the
respondent referred to Section 4A (3) of the Guardians and Wards Act,
(1992) 1 SCC 719
1990 (Supp) SCC 53
(2008) 7 SCC 673
(2009) 1 SCC 42
TMD,J
1890, to submit that there was no inherent lack of jurisdiction of the trial
Court in passing the order. It is submitted that the challenge by the revision
petitioner is only to the docket order whereas the final and reasoned order
has been or might have been passed by the trial Court and he submitted that
he would get instructions in the matter and furnish the copy of the reasoned
order, if any, if time is granted to him. He submitted that the petitioner has
not raised the ground of lack of jurisdiction of the District Court in passing
the order, in the grounds raised in support of the C.R.P., and therefore, he is
precluded from raising such a ground at the stage of arguments only. As
regards the factual aspect of the case, he relied upon the averments made in
the counter affidavit filed in the C.R.P. and other documents filed therewith.
He further submitted that the child was with the respondent in the revision
petition for the past two years and that he along with his family members
only has been taking care of the child. He has also filed a copy of the
application form and also the attendance sheet of the minor child in the
Little Starz Play School at Patelguda, Patancheru, Sanga Reddy and also the
receipt of payment of fee in respect of the minor child from Ameri Kids
School, Medipally dated 09.01.2025 in support of his above contentions.
He has also filed photographs of the house under construction to submit that
TMD,J
they are living in Hyderabad for construction of the house. As regards the
judgments relied upon by the learned counsel for the petitioner, he
submitted that the factual aspects of the case have to be looked into and the
said judgments are not applicable to the facts of the case before this Court.
7. Having regard to the rival contentions and the material on record, this
Court finds that the foremost question that arises for consideration is
whether the District Court has the jurisdiction to entertain the petition under
Guardians and Wards Act, 1890. As rightly pointed out by the learned
counsel for the respondent, it is not the case of the plaintiff choosing the
Court before whom the case is to be filed, but once a case is filed, it is for
the registry to take an objection about the maintainability of the said petition
before the Court and if no such objection is raised, the Court can entertain
the petition under Section 4A of the Guardians and Wards Act, 1890, and
under sub-section (3) thereof the District Court also can entertain the
application. Therefore, this objection of the petitioner is rejected.
8. As regards the appealability of the impugned order, this Court finds
that Section 47 of the Guardians and Wards Act, 1890 refers to orders
appealable wherein an appeal shall lie to the High Court from an order made
TMD,J
by a Court under Section 7, appointing or declaring or refusing to appoint or
declare a guardian. In this case, though the petition is filed for declaration
or granting of permanent custody of the child, the impugned order is not an
order passed under Section 7 of the Act but it is an order of injunction
against the petitioner herein. Therefore, it is not an appealable order. Since
there is no other alternative remedy and the impugned order is claimed to be
a non-speaking order, this Court is of the opinion that this C.R.P. under
Article 227 of the Constitution of India is maintainable.
9. As regards the contention that since the child is below five years of
age and therefore, his custody should be with the mother, this Court finds
that the child will be five years old within a period of 7 months i.e., on
22.09.2025 and therefore, he is less than five years of age and the trial Court
has not examined this issue while granting ad-interim injunction against the
petitioner herein. Further, as rightly pointed out by the learned counsel for
the petitioner, the trial Court has also not examined as to whether the three
basic principles for granting ad-interim injunction i.e., whether there is
prima facie case & balance of convenience in favour of the petitioner and
whether irreparable loss and injury would be caused to the petitioner if
ad-interim injection was not granted, exist in this case. The judgment relied
TMD,J
upon by the learned counsel for the petitioner would support these
contentions of the petitioner. Therefore, the impugned order lacks
reasoning and is not sustainable and the C.R.P. is maintainable and the ad-
interim injunction in I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024 dated
20.12.2024 passed by the Principal District and Sessions Judge at Siddipet,
is set aside and the C.R.P. is allowed.
10. However, as pointed out by the learned counsel for the respondent,
the impugned order is an order of ad-interim injunction and the trial Court is
yet to pass final orders in I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024.
Therefore, without expressing any opinion on the merits of the case, this
Court deems it fit and proper to direct the trial Court to afford reasonable
opportunity of hearing to both the parties and pass appropriate orders in
I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024, expeditiously, preferably
within a period of 30 days thereafter since academic year for the schools
would begin and the child would have to go to school regularly.
11. As regards the custody of the child in the interregnum period, this
Court finds that initially this Court had granted custody of the child to the
revision petitioner for a period of one week only on the ground that the
child has been away from her company for more than one month even as
TMD,J
per her contentions in the C.R.P. and directed the petitioner to appear before
this Court along with child at 10.30 Am on 31.01.2025. On 31.01.2025,
after hearing both the parties, the interim order granted by the Court was
extended for a period of further one week and the petitioner was also
directed to appear before this Court along with the child on 07.02.2025. On
07.02.2025, this Court had observed that the presence of the child before
this Court is not necessary and therefore directed that the matter be listed on
10.02.2025 and interim order granted earlier was extended. On 10.02.2025,
after hearing both the parties, this Court felt it necessary to hear the child
and therefore, the petitioner was directed to produce the child before this
Court at 10 A.M. on 11.02.2025 in chambers. As directed, the child along
with parents and grandparents i.e., the parents of the father were all present.
This Court has observed the child and upon interaction, is of the opinion
that the child is not in any position to understand and express his preference
and is hyperactive and needs constant care and attention. He appeared to be
more inclined towards his father. The revision petitioner is a single
working mother and appears to be living alone or with her father, whereas,
the grandparents are present in the father's house. In view of the same and
in the sole interest of the welfare of the child in the existing circumstances,
TMD,J
this Court is of the opinion that the custody of the child should be with the
father and his parents till I.A.No.987 of 2024 in G.W.O.P.No.26 of 2024 is
decided by the Principal District and Sessions Judge at Siddipet.
12. Further, this Court, having regard to the welfare of the child in the
mind, directs the respondent to allow the mother of the child/the revision
petitioner to visit their residence once a week with prior intimation and on
such visit, she may be permitted to have the company of the child alone for
atleast two hours and the respondent is also directed to permit the revision
petitioner to have video calls with the child thrice weekly in the evening
hours i.e., between 5 P.M. to 7 P.M. with prior intimation.
13. Accordingly, the Civil Revision Petition is allowed with the above
directions. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Revision Petition,
shall stand closed.
__________________________
JUSTICE T.MADHAVI DEVI
Date: 12.02.2025
PRN
