Oral Order: [A.R. Joshi, J.]
1. Heard the rival arguments at length on this Family Court Appeal challenging the judgment and order dated 28.5.2013 passed by the Judge, Family Court No. 7, Bandra, Mumbai. The impugned Judgment and Order was passed in Petition No. D-75 of 2012 preferred by the present respondent for declaration under Sections 6 and 7 of Guardian and Wards Act. The present appellant was the respondent in the said petition.
2. At the threshold it is to be mentioned that the impugned judgment and order was passed exparte under the premise that the present appellant, respondent therein, though served with summons, did not put her appearance. Factually without there being any representation from the present appellant, respondent therein, the impugned judgment and order was passed granting custody of the minor child with the petitioner therein i.e present respondent.
3. After considering the rival arguments, certain factual position is required to be mentioned in order to have proper perspective of the matter and for ascertaining whether this is a matter in which the impugned judgment and order is required to be set aside and whether it is just and proper to remand the matter back for hearing in accordance with law after hearing the present appellant and the respondent on merits.
4. The present appellant married with one Vivek Sinha on 19.11.2009. The couple was blessed with a daughter by name Anjali on 31.8.2010. Unfortunately, in a road accident, husband of the present appellant died on 11.11.2010 leaving behind his wife i.e the present appellant and small child Anjali. Earlier, the present appellant was residing in the joint family of the respondent who is the mother-in-law of the present appellant. After the death of the husband of the present appellant, the relations between the appellant and her mother-in-law and other family members became rather strained and as such sometime in the mid of May 2012, the present appellant filed an application under the Protection of Women from Domestic Violence Act, 2005 before the JMFC, Chhatarpur, Madhya Pradesh against the present respondent and also against her elder son and daughter-in-law as well as against two daughters and son-in-laws. In the said application, it was also prayed for immediate custody of the minor child Anjali which then remained with the present respondent i.e mother-in-law of the present appellant. Apparently, by that time, the present appellant took shelter with her parents but small child Anjali remained with her grandmother i.e present respondent.
5. On the prayer for getting custody of the small child Anjali, the JMFC, Chhatarpur, Madhya Pradesh passed interim order dated 1.3.2013 granting interim custody of the minor child to be given to then petitioner - mother of the child i.e the present appellant. It is a factual position and forming part of the court record before learned JMFC, Chhatarpur, Madhya Pradesh that the present respondent i.e the grandmother of the child did file appearance in the said matter of Domestic Violence and also filed written submission and it is also a factual position that the time was sought for handing over custody of the small child Anjali to her mother. This was so happened by mid of March 2013. It is also a part of the court record that even by that time, the present respondent had preferred Petition bearing No. D-75 of 2012 for declaring her as a guardian under Sections 6 and 7 of the Guardian and Wards Act and as such, the petition was filed before the Family Court, Bandra, Mumbai and was registered on 30.8.2012. As such, though the said petition for appropriate relief for declaring as a guardian of minor child, counter to the interest of the natural guardian mother, was pending before the Family Court, Bandra, this factual position was not brought to the notice of the learned JMFC, Chhatarpur, Madhya Pradesh and as mentioned earlier, even the time was prayed before the said court at Madhya Pradesh for handing over custody of small child Anjali to her natural guardian-mother. Factually, this was the suppression of the relevant, vital and important circumstance by the present respondent.
6. It appears that the notice / summons in Petition No. D-75 of 2012 preferred by the present respondent before the Family Court, Bandra was sent through RPAD and apparently, there was postal endorsement as "refused". Holding this endorsement as a valid service, the learned Judge of the Family Court, Bandra proceeded ahead and dealt with the matter and passed exparte orders. The factual position still remains that the Family Court, Bandra was not made aware of the proceedings initiated by the present appellant i.e the mother of the child before the JMFC, Chhatarpur, Madhya Pradesh. Without going into much details as to what happened subsequently, suffice it to say that the said learned JMFC, Chhatarpur, Madhya Pradesh had disposed of the application under Domestic Violence Act preferred by the present appellant vide order dated 22.7.2013 and thereby custody of the child was permanently directed to be given to the present appellant / then petitioner, however, as mentioned earlier, the Family Court at Bandra passed the judgment and order on 28.5.2013 which is impugned in the present appeal.
7. After ascertaining the above factual position as brought to our notice by the learned counsel appearing for the rival parties, it must be said that the factual relevant position was not brought to the notice of the Family Court, Bandra, Mumbai and also not brought to the notice of JMFC, Chhatarpur, Madhya Pradesh during pendency of the application preferred by the present appellant for action under Domestic Violence Act. In any event, in our considered view, where the Family Court is dealing with the sensitive issue like guardianship of a minor child, the Court must be cautious in passing orders exparte without there being authentic proof of service on the respondent. Moreover, it was incumbent upon the present respondent to bring to the notice of the Family Court, Bandra, pendency of the application preferred by the present applicant under Domestic Violence Act and in which one of the prayers was also for custody of the child.
8. When the above factual position is brought to the notice of the learned counsel for the respondent, she stated on instructions that the present matter, at the most, may be sent back to the Family Court, Bandra for reappraisal after giving opportunity to the present appellant to defend the petition, however, it is prayed that the present status so far as the small child is concerned, may be kept in tact considering the paramount interest of the child as since the age of 2 1/2 years, the child is with present respondent who is the real grand mother. It is further submitted that presently the child is studying in K.G. Class. On this submission, learned counsel for the appellant stated that the appellant is the natural guardian being mother of the child and she can very well take care of the interest of the child and even at this stage, if the interim custody is granted, there would not be any loss of education to the child as the child is studying only in K.G. Class. Considering the rival submissions, in our considered view and considering the specific circumstances that since from the tender age of about 2 and 1/2 years, the child being in custody of her grandmother i.e present respondent, it would not be in fitness of the situation to disturb the child psychologically till competent court decides the issue of custody and guardianship of the child. Of course, after considering the sensitive nature of custody of child who is now aged about 4 1/2 years, some time bound programme is required to be given to the Family Court, Bandra after remanding the matter.
9. In view of the above, the present appeal is allowed. The impugned judgment and order is quashed and set aside. The matter is remanded back to the Family Court, Bandra for re-hearing after allowing the present appellant / then respondent to put forth her case and then dispose of the matter in accordance with law.
10. The petition preferred by the present respondent being Petition No. D-75 of 2012 be disposed of as far as possible within a period of four months from receipt of this direction by the Court. In the meantime, status quo to be maintained so far as the present custody of the child, however, the Family Court, Bandra shall decide the aspect of access of present appellant to the child if asked during pendency of the petition in accordance with law. With these directions, present appeal is disposed of.
11. In view of final disposal of the Family Court Appeal nothing survives in Civil Application No. 296 of 2013 and the same is disposed of as such.