MANOJ AGRAWAL Vs. SUSHMA AGRAWAL

JUDGEMENT

(1.) By means of this petition, moved under Article 227 of the Constitution of India, the petitioners have sought direction in the nature of writ of certiorari for quashing the order dated 24-8-2004 passed by learned Principal Judge, Family Court, Nainital.

(2.) Brief facts of the case as narrated in the petition are that respondent No. 1 has filed an application under Sections 8, 9 and 25 of the Guardians and Wards Act, 1890 read with Sections 6-A and 13 of Hindu Minority and Guardianship Act, 1956, seeking custody of minor child Sidharth from the custody of the petitioners. The said application was registered as Case No. 19 of 2003 Sushma Agrawal v. Munish Agrawal and others. As per the said application Sushma Agrawal got married to respondent No. 2 on 19-11-1999 and from their wedlock Master SIdharth got born on 16-12-2000. Petitioner Nos. 1 and 2 are brother and sister of respondent No. 2. It is alleged in the application that respondent No. 1 was turned out of her matrimonial house at Delhi and Master Sldharth is in the custody of the petitioners at Delhi. Learned Principal Judge, Family Court issued notices in the aforesaid case in response to which an application under Order VII, Rule 1 l(d) of the Code of Civil Procedure, 1908 was moved in view of the Section 9 of Guardians and Wards Act. 1890. Learned PrincipalJudge, Family Court framed an issue as to the jurisdiction of the Court and fixed the next date 24-8-2004 (copy of the order Annexure-4). Learned Principal Judge, Family Court, without giving finding as to the Jurisdiction directed vide its order dated 3-11 -2004 (copy Annexure-5) directed the petitioners to produce the minor in the Court. Aggrieved by said order, this petition has been filed alleging the order to be illegal and against the provisions of law.

(3.) A counter-affidavit has been filed on behalf of the respondent No. 1 in which it has been admitted that respondent No. 1 got married to respondent No. 2 on 19-11-1999 and it is also admitted that a male child was born out of their wedlock on 16-12- 2000. It is alleged in the counter -affidavit that the relations with the petitioners and respondent No. 1 did not remain cordial due to alleged bad behaviour on their part and respondent No. 1 had to leave her matrimonial house for no fault on her part. It is further stated In the counter-affidavit that proceedings of Section 125 of the Code of Criminal Procedure, 1973, were initiated at the instance of respondent No. 1, and respondent No. 2 has yet not complied with the order of maintenance passed by learned Principal Judge, Family Court, Nainital. It is further alleged that the answering respondent is deprived of the custody of her minor son. Lastly, it is stated that the petitioners are delaying the proceedings before the Family Court.