- (1.) Appellants have filed this appeal aggrieved by order dated 27.10.2015 passed by learned Family Court No. 2, Jaipur, in Application No. 7/2015 (1017/2014) and prayed that application filed by respondents for custody of the child be dismissed or returned for filing in the court of competent jurisdiction.
(2.) Respondents/ filed an [application under Sec. 7 read with Sec. 25 of the Guardians and Wards Act, 1890 (for short, 'the Act of 1890'), against appellants seeking custody of minor child Medhansh, alleging that it would be in the welfare of the child. Respondent -husband alleged that appellant -wife is engaged in Information and Technology Business Organization and she is too busy to take care of the child. Appellant -wife moved an application under Order 7 Rule 11 of the Code of Civil Procedure (for short, 'CPC') read with Sec. 9(3) of the Act of 1890, even before filing reply to the custody application of the respondent -husband. A reply was filed by respondent -husband to the said application of appellant -wife contending that during the course of proceedings in the custody application in Panipat court, he lodged an F.I.R. against brother of appellant -wife, on allegation of beating him. Thereafter, respondent -husband withdrew the application from Panipat court and filed the same in the Family Court No. 2, Jaipur. Appellant -wife earlier filed a Transfer Application (Civil) No. 589/2015 before the Supreme Court, which was dismissed vide order dated 24.07.2015. This court vide its order dated 19.03.2015 in S.B. Civil Writ Petition No. 3170/2015 filed by respondent -husband, directed him to approach the concerned Family Court at Jaipur, which Court was required to take up the matter and decide the same as expeditiously as possible, according to the spirit of the Family Court Act.
(3.) Shri Rajat Ranjan, (learned counsel for appellants contended that the learned Family Court No. 2, Jaipur, has no jurisdiction to decide the application filed by respondent -husband for custody of the child as ordinary place of residence of the child is not Jaipur. Respondent -husband initially filed such application in the Court of Panipat and on the pretext of frivolous criminal complaint, which was not filed against the appellant -wife, he withdrew the same and filed the application before Family Court, Jaipur. At the time of filing of said application in the Family Court, Jaipur, the judgments passed by the Supreme Court and this Court were not in existence. Appellant -wife had filed application for transfer of the case from Family Court Jaipur to Panipat. Mere dismissal of the transfer application by the Supreme Court does not take away right of the appellant -wife to object to jurisdiction of the Family Court, Jaipur. Merits of the case were left untouched by the Supreme Court. Writ Petition No. 3170/2015 filed by respondent -husband was with regard to securing visitation right for the child and the same was disposed of ex -parte. This Court was informed by the respondent -husband that the had filed custody application before the Family Court, Jaipur, as such this court relegated him to approach the Family Court, Jaipur, for his grievance, but this did not amount to conferring jurisdiction on the Family Court, Jaipur, if otherwise it does not have such jurisdiction. Issue as to whether the Family Court, Jaipur, has jurisdiction to try the custody application filed by respondent -husband, has not been adjudicated by the Supreme Court or this Court. Merits of the case, rights of the parties and questions of law and jurisdiction were not dealt with in either of the said proceedings. Jurisdiction of the court in the cases arising out of proceedings under the Act of 1890, is determined on the basis where the minor ordinarily resides. If the answer to the question of territorial jurisdiction is in negative, logical result has to be an order of dismissal of the application or return of the application for presentation before the court competent to entertain the same. A court, that has no jurisdiction to entertain a petition, cannot pass any order or issue any direction. It is further argued that welfare of a child is paramount consideration for deciding question of custody of child and welfare of the child is not in directing the mother of child to travel a long distance to attend custody application. Sole intention of respondent -husband is to take revenge from appellant -wife. Respondent -husband owns an it Company, whereas appellant -wife works for an it Company. The it Company of appellant -wife is already making a lot of adjustments for her considering the fact that she is a single parent. The child is living with his mother at Panchkula under her care and custody and he is studying in the Gurukul, Sector 20 Panchkula, in 1st standard. It is also argued that respondent -husband had come to Panchkula and tried to take away the child from his school and at that time, appellant -wife was called by the school administration and the matter was taken to the police station, where the respondent -husband threatened appellant -wife of dire consequences.;