J.J.MUNIR,J. - (1.) This writ petition has been filed challenging an order dated 04.07.2019, passed by the Additional Principal Judge, Family Court, Room No.3, Aligarh, rejecting an application filed under Section 10(3) of the Guardians and Wards Act, 1809 (for short the ''Act') in Pure Misc. Case no.10 of 2017, seeking to submit a declaration under Section 10(3) of the Act, with a prayer that it may be taken on record.
(2.) This order has come to be passed in the background of facts that the petitioner, Seema Chauhan and respondent no.1, Raghuvendra Singh Raghav are an estranged couple. They have a minor daughter, Baby Garvita Raghav. The father has filed an Application under Sections 8 and 10 of the Act, seeking to be appointed Guardian of the person of his minor daughter, and for a further relief that custody of his minor daughter be handed over to him. The said application under Sections 8 and 10 of the Act was filed before the Principal Judge, Family Court, Aligharh, where it was numbered as Pure Misc. Case no.10 of 2017. The precise prayer in the Application reads to the following effect: "It is therefore prayed that in the interest of justice that the applicant be appointed as guardian of the person of the said minor and the custody of the minor be handed over to him and the opposite party be directed to hand over the custody of the minor to her natural father and guardian, i.e., applicant, within the time prescribed by Hon'ble Court failing which the custody of the minor be given to the applicant through process of law. Schedule Movable and Immovable Properties Minors have no movable and immovable properties in her name. Sd/- illegible Applicant"
(3.) An objection was filed to this Application on behalf of the petitioner-wife on 30.11.2018 traversing the allegations in the Application. Apart from objections on merits of the Application, an objection about the maintainability of the Application, in the form and manner it was filed, was also taken. This objection was to the effect that the mandatory procedure envisaged under Sections 10(1) and 10(3) of the Act have not been adhered to by the third respondent. This was so, according to the petitioner-wife as Sections 10(1) and 10(3), last mentioned, mandate that an Application under Section 10 must be accompanied by a declaration of willingness by the proposed guardian to act; also, the declaration must be signed by the proposed Guardian and attested by at least two witnesses under their signatures. It was urged that the Application for appointment of Guardian was improperly framed and against the law as mandated by Sections 10(1) and 10(3) of the Act, for reason also that it was not made in the prescribed proforma, apart from the fact that it was not accompanied by the required declaration. Faced with the aforesaid objection, the third respondent filed an Application on 18.12.2018, seeking permission of the Court to submit his declaration under Section 10(3) of the Act, that was attached to the Application. It was prayed that the declaration be taken on record. An affidavit for the purpose signed by the third respondent and attested by two witnesses was also filed along with the said Application. The Application dated 18.12.2018 was clearly brought to cure the irregularity alleged to have been committed by the third respondent, and pointed out in her objections by the petitioner-wife. To this Application dated 18.12.2018, an objection was filed on behalf of the petitioner-wife, dated 03.05.2019, where the objection about the form of an Application under Section 10 was raised to further sharpness, in paragraph 4 of the memorandum of objections. It was claimed that there is no provision to file a declaration under Section 10(3) of the Act, and Rule 657 of the General Rule Civil, 1957 after registration of the Application/ Petition under Section 10 of the Act.;