Decided on May 04,2012

Smt. Preeti D/O Sri Nand Kishore, R/O Mohalla Chaklan Dheerwali, P.S. Jwalapur, District Hardwar, Appellant
Pradeep Upadhyay S/O Sri Ram Kumar Upadhyay, R/O H.N. 30 Sarva Priya Vihar Colony, Kankhal, Tehsil And District Hardwar Respondents


Barin Ghosh, C.J. - (1.) HEARD learned counsel for the parties. Perused the lower court records. Appellant No. 1 married the respondent, which marriage stands dissolved by a decree of divorce already passed. Out of the wedlock between appellant No. 1 and the respondent, a girl child was born, who is presently aged about 41/2 years. Appellant No. 1, after dissolution of her marriage with the respondent, got married once again. Because she got married, respondent instituted proceeding before the Principal Judge, Family Court, Hardwar on 9th May, 2011 for obtaining custody of the said girl child. On 9th May, 2011, on the prayer of the respondent, the court allowed service upon the respondents to the said application, namely, appellant No. 1 and her parents through special messenger. Accordingly, process server of the court went to serve the summons upon the appellants herein on 9th June, 2011. In a report prepared by the special messenger, he reported that appellant No. 1 is not available and appellant Nos. 2 & 3 have refused to accept the summons. This report was not accompanied with any affidavit. The Court also did not take any step to examine the process server. On 9th June, 2011 on the prayer made by the respondent, the court permitted service through publication through a local daily newspaper. Accordingly, a publication was made in newspaper known as "Dainik Hawk", which is, although, a daily newspaper published from Hardwar, but has a very small circulation. The publication on the said newspaper was made on 18th June, 2011, whereupon on 23rd August, 2011 an ex parte order was passed allowing the application for custody and thereby custody of the said girl child was accorded to the respondent. While passing the said order, court below did not even bother to take notice of what would be the best for the girl child. On 7th October, 2011, an execution application was filed for enforcing of the said order dated 23rd August, 2011. On the same date, notice on the said application was directed to be issued. On 8th November, 2011, process server of the court reported that the notice was refused by appellant Nos. 2 & 3, and that, appellant No. 1 was not available at the time when an attempt was made to effect service. This report was submitted without any affidavit. The court below did not take step to examine the process server. On 13th January, 2012, an affidavit was filed before the court below by the respondent, where it was stated that the girl child is residing with appellant Nos. 2 & 3 at the address of appellant Nos. 2 & 3. The court below on 27th January, 2011 considered the report of the process server and the affidavit filed on 13th January, 2012 and opined that a good case for grant of police help has been made out. Before passing the said order, court below did not make any attempt to have the writ of the court executed through the bailiff / an officer of the court. On 31st January, 2012, on an application made by the respondent, custody warrant was issued by the court below, which was handed over to the local police, who, in their turn, on 4th February, 2012 obtained the child from the residence of appellant Nos. 2 & 3 when all the appellants were present. Police, thereupon, produced the child in court on 4th February, 2012 and the court directed handing over of the custody of the child to the respondent. The manner, in which the case has been dealt with, is contrary to rules of safe guard provided in the Civil Procedure Code, which applied to the proceedings before the court below. In the circumstances, we have no other option but to interfere in the appeal.
(2.) WE , accordingly, set aside the decree / order passed on 23rd August, 2011 and all other orders passed to implement the said decree / order on the execution application filed by the respondent. In course of hearing, we met the child and talked to her. We felt that, at present, she is being well looked after. We, accordingly, provide interim custody of the child to the respondent. However, the question of interim custody shall also be decided by the court below. We direct appellant No. 1 and the respondent to be present before the court below on 9th May, 2012 at 10.30 A.M., when the application of the respondent, in view of this order should be deemed to be pending before the court below, shall be listed as item No. 1 and the rival contentions of the parties pertaining to custody of the girl child shall be decided in accordance with law, which decision in any event can not be delayed beyond 7th June, 2012 and, for that matter, if necessary, the court below will hold proceedings day to day. While doing so, it shall be open to the court below, if an application to that effect is made by appellant No. 1, to decide in accordance with law interim custody until the matter is decided finally in terms of this order. The Registry is directed to send back the lower court records through special messenger and to ensure that the records with a copy of this order reaches the court below on 7th May, 2012.;

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