V.K. Shukla, J. - (1.) Petitioner Dr. Vinay Samuel Arawattigi has approached this Court questioning the validity of the order passed by the Judge Family Court, Kanpur Nagar holding that Court at Kanpur Nagar has authority and jurisdiction to deal with the application moved on behalf of the Respondent Smt. Rashmi Harry under Section 25 of Guardians & Wards Act, 1890.
(2.) Brief facts giving rise to the instant writ petition in brief is that petitioner and respondent No. 2 were married as per Christian Rites and Rituals on 2.8.1999 at Miraj (District Sangli Maharastra). After the said marriage had been solemnized, couple in question started living together at Vail Memorial Hospital Campus Miraj District Sangli. Out of said wedlock baby "Simran" was born on 23.11.2001 at Kanpur Nagar. It has been asserted by the petitioner that after some post maternity treatment the petitioner alongwith respondent No. 2 and minor child Simran flew back to Miraj from Lucknow via Delhi on 26.12.2001 where they lived together. Petitioner has contended that in December, 2002 he joined Christian Medical College Hospital (C.M.C.H.) Vellore and there he resided with respondent No. 2 and baby Simran. Petitioner has contended that in October, 2003 he decided to start his career as a Doctor near his native town in Miraj. Petitioner has contended that settling at Miraj was not solicited by the respondent No. 2 therefore, petitioner alongwith respondent No. 2 came to Pune in search of a job as doctor but unfortunately failed to get the same. However, at latter point of time he got a job as a Doctor at Mission Hospital Miraj, but respondent No. 2 was not ready to settle at Miraj and she has been insisting and asking the petitioner to settle at Kanpur. Petitioner has contended that he did not succumb to said request of respondent No. 2, however, in order to resolve this crises and to save the family, they came at Pune. It has also been contended that 2nd birth day anniversary of baby Simran was approaching and to celebrate the same both went to Miraj where birthday was celebrated on 23.11.2003 at the friends's house at Miraj. It has been contended that after aforesaid celebration of birth day of baby Simran, again same issue was raised by respondent No. 2 to settle at Kanpur which was politely declined by the petitioner and it has been asserted that respondent No. 2 asked the petitioner to leave her at her cousin brother's house at Pune and respondent No. 2 was dropped on 26.11.2003 and from there the parents of respondent No. 2 was called upon to persuade her to behave sensibly, but nothing fruitful happened and from Pune respondent No. 2 came to Kanpur Nagar leaving baby Simran with the petitioner. It has been contended that petitioner and respondent No. 2 are living separately since 26.11.2003 and minor baby Simran has been residing with the petitioner at Miraj District Sangli. In order to harass the petitioner, respondent No. 2 filed Criminal Complaint Case No. 7849 of 2004 under Section 498-A, 323,506, 420 I.P. read with Section 3/4 Dowry Prohibition Act against the petitioner and his mother. Details have also been furnished of another Criminal Complaint Case No. 24733 of 2004, under Sections 406, 120-B I.P.C. against the petitioner and his mother. Proceeding in both criminal cases have been stayed by this Court. Respondent No. 2 again filed Misc. Case No. 103/70 of 2004 Smt. Rashmi Harry v. Dr. Vinay S. Arawattigi, under Section 25 of Guardians and Wards Act, 1890 for the custody of baby Simran at Kanpur Nagar. At the point of time of filing case Munsasrim of the Kanpur Nagar Court made a report that present proceeding is beyond the jurisdiction of this Court therefore, case cannot be registered. On 17.5.2004 arguments were asked to be advanced on the report of Munsarim. On 24.5.2004 order was passed by the respondent No. l mentioning that there is no evidence qua period of stay of child with his mother since 23.11.2005, in order to ascertain the status of 'ordinarily resides'. On 29.5.2004 case was directed to be registered. Petitioner filed his objection and raised the plea of jurisdiction. Respondent No. l without entering into the question of jurisdiction, passed order for production of child on 26.2.2005. Against the said order, petitioner preferred Civil Misc. Writ Petition No. 24304 of 2005 before this Court and this Court mentioned that as to whether proceedings are maintainable or not at Kanpur Nagar, as minor baby Simran "ordinarily resides" at Miraj (District Sangli Maharashtra)as has been raised by petitioner is question of fact and objection has already been filed, Family Court, Kanpur Nagar, will take appropriate decision in the matter. The order for production of child being interlocutory one qua the same, no interference is made. Thereafter objection preferred on behalf of the petitioner has been rejected and court at Kanpur Nagar has taken the view that it has got territorial jurisdiction to hear the matter under the provision of Guardians & Wards Act, 1890. Against the said impugned order in question, present writ petition has been filed.
(3.) On the presentation of the writ petition, this Court on 13.12.2005 passed following order, which is being quoted below: Put up this petition for further hearing on 16,1.2006. On the next date, petitioner Vinay Samuel Arawattigi alongwith Minor child as well as respondent No. 2 Smt. Rashmi Harry shall be personally present before this Court. The office is directed to list this petition showing the case will be taken up in Chamber at 3.00 P.M. Till the next date of listing no further proceedings shall be undertaken before the courts below. This order has been passed by this Court with an endeavour to see if compromise can be entered inter se parties.;