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$-19 HIGH COURT OF DELHI
MAT.APP.(F.C.) 37/2015
DEV DARSHAN GUPTA & ANR Appellants
Through Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Prosenjeet Baneijee & Ms; Mansi
Sharma, Advs.
MAT.APP.(F.C.) 37/2015
DEV DARSHAN GUPTA & ANR Appellants
Through Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Prosenjeet Baneijee & Ms; Mansi
Sharma, Advs.
VERSUS
AMBIKAMALIAH Respondent
Through Nemo
Through Nemo
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S. MEHTA
09.04.2015 C.M. ApdL No.6368/2015 Exemption allowed subject to just exceptions.
Application stands disposed of.
MAT.APP.(F.C.l 37/2015 & CM No.6367/2015 In the present appeal preferred under Section 19 ofthe Family Courts
Act, the appellants seek to challenge the order dated 23.03.2015 passed by the Principal Judge, South East Family Court, dismissing the stay application preferred by the appellants under Order XXXIX Rules 1 & 2 read with Section 151 CPC. Challenging the legality and correctness of the said order, Mr. Sanjeev Sindhwani, Senior Advocate appearing for the appellants submits that learned Trial Court under haste and without appreciating the complete facts in its proper. Mr. Sindhwani further submits that presently the child got admitted in Sri Ram School, Gurgaon in
Standard and admission of the child in the school was with the consent of the respondent as conveyed to the appellant No.2 through text messages via sms. Counsel also fairly submits that the respondent has already lodged a
2015:DHC:11678-DB criminal case against the appellant No.2 for kidnapping under Section 363
IPG and in the said proceedings, the Child Welfare Committee has recorded the statement of the child and based on his statement the temporary custody of the child has been given to the maternal grandmother/Nani and presently the child is continuing to be in her custody. Counsel also submits that the appellant has filed a petition under Section 26 of the HMA Act seeking revocation of the earlier consent order relating to the grant of custody of the child to the mother. Contention of the counsel for the appellant is that because of the changed scenario it is no more in the interest of the child to be in the custody of her mother and the appellant has given detailed reasons for the same in his main petition. Counsel further submits that the suit for permanent injunction as well as the othercase filed by the appellant are now listed before the same Family Court on 10**^ April, 2015 and the respondent has already entered appearancein both the matters.
After having heard the counsel for the appellant at considerable length, we are neither inclined to comment uponthe merits of the matternor to issue notice in the present appeal so as to unnecessarily shifttheplace of litigation to the High Court. However, we find that the learned Family
Court has shown'some haste in straightaway dismissing the stay application preferred by the appellant without even directing notice of the same on the opposite party. At best, in our view, the learned Court could have declined the ex parte ad interim injtmction but certainly there was no reason for the
Court to have dismissed the stay application itself at the very threshold when the appellant has brought on record some changed circumstances which as perthe appellant warrants change ofthe custody ofthe child from the respondent to the father. It is a settled legal position that the orders relating to custody of wards even when based on consent can be varied by the Court as ultimately the paramount consideration which always prevails is the welfare of the child.
In the light of the above position, we direct the learned Family Court to decide the stay application filed by the appellant afresh giving full opportunity to both the parties and also after taking on record the subsequent facts which have taken place in the interregnumand then decide the same on its merits. We further direct that pending the decision ofthe stay application and the application filed by the respondent under Order VII Rule 11 CPC in the HMA case, the child will not leave the jurisdiction of this Court. We also request the learned Family Judge to have interaction with the child so as to ascertain his wishes, as the child is of eleven and half years of age and in our view certainly his wishes will be of great importance in taking a final view in the matter.
With the above directions, the present appeal is disposed of.
Dasti to the counsel for the appellants under the signature of the Court
Master, as prayed.
KAILASH GAMBHIR, J APRIL 09, 2015
HON'BLE MR. JUSTICE I.S. MEHTA
09.04.2015 C.M. ApdL No.6368/2015 Exemption allowed subject to just exceptions.
Application stands disposed of.
MAT.APP.(F.C.l 37/2015 & CM No.6367/2015 In the present appeal preferred under Section 19 ofthe Family Courts
Act, the appellants seek to challenge the order dated 23.03.2015 passed by the Principal Judge, South East Family Court, dismissing the stay application preferred by the appellants under Order XXXIX Rules 1 & 2 read with Section 151 CPC. Challenging the legality and correctness of the said order, Mr. Sanjeev Sindhwani, Senior Advocate appearing for the appellants submits that learned Trial Court under haste and without appreciating the complete facts in its proper. Mr. Sindhwani further submits that presently the child got admitted in Sri Ram School, Gurgaon in
Standard and admission of the child in the school was with the consent of the respondent as conveyed to the appellant No.2 through text messages via sms. Counsel also fairly submits that the respondent has already lodged a
2015:DHC:11678-DB criminal case against the appellant No.2 for kidnapping under Section 363
IPG and in the said proceedings, the Child Welfare Committee has recorded the statement of the child and based on his statement the temporary custody of the child has been given to the maternal grandmother/Nani and presently the child is continuing to be in her custody. Counsel also submits that the appellant has filed a petition under Section 26 of the HMA Act seeking revocation of the earlier consent order relating to the grant of custody of the child to the mother. Contention of the counsel for the appellant is that because of the changed scenario it is no more in the interest of the child to be in the custody of her mother and the appellant has given detailed reasons for the same in his main petition. Counsel further submits that the suit for permanent injunction as well as the othercase filed by the appellant are now listed before the same Family Court on 10**^ April, 2015 and the respondent has already entered appearancein both the matters.
After having heard the counsel for the appellant at considerable length, we are neither inclined to comment uponthe merits of the matternor to issue notice in the present appeal so as to unnecessarily shifttheplace of litigation to the High Court. However, we find that the learned Family
Court has shown'some haste in straightaway dismissing the stay application preferred by the appellant without even directing notice of the same on the opposite party. At best, in our view, the learned Court could have declined the ex parte ad interim injtmction but certainly there was no reason for the
Court to have dismissed the stay application itself at the very threshold when the appellant has brought on record some changed circumstances which as perthe appellant warrants change ofthe custody ofthe child from the respondent to the father. It is a settled legal position that the orders relating to custody of wards even when based on consent can be varied by the Court as ultimately the paramount consideration which always prevails is the welfare of the child.
In the light of the above position, we direct the learned Family Court to decide the stay application filed by the appellant afresh giving full opportunity to both the parties and also after taking on record the subsequent facts which have taken place in the interregnumand then decide the same on its merits. We further direct that pending the decision ofthe stay application and the application filed by the respondent under Order VII Rule 11 CPC in the HMA case, the child will not leave the jurisdiction of this Court. We also request the learned Family Judge to have interaction with the child so as to ascertain his wishes, as the child is of eleven and half years of age and in our view certainly his wishes will be of great importance in taking a final view in the matter.
With the above directions, the present appeal is disposed of.
Dasti to the counsel for the appellants under the signature of the Court
Master, as prayed.
KAILASH GAMBHIR, J APRIL 09, 2015
JUDGMENT