SHEIKH SIDDIKISHAJADI MOHAMMEDYAKUB Vs. RUBINABANU IRFANKHAN MOHAMMEDKHAN

JUDGEMENT

(1.) This petition has been filed challenging order dated 2-12-2008, passed by the Family Court,Ahmedabad, in Family Suit No.1185 of 2007, below application at Exh.1.

(2.) Briefly stated, the case of the petitioner is that her son was married to the respondent No.1 and during the subsistence of the said marriage, a son was born to them, on 4-11-2002. Differences arose between the son of the petitioner and the respondent No.1. A Talaknama was entered into by them on 18-5-2004, by mutual consent. On the same day, a Memorandum of Understanding was also entered into between them. Respondent No.1, thereafter, married respondent No.2. According to the Memorandum of Understanding, the custody of the minor son of respondent No.1 was to remain with her until the minor attained the age of seven years, meaning thereby, that till the year 2009, as per the Memorandum of Understanding, the custody of the minor son was to remain with respondent No.1. The son of the petitioner, was serving in the Central Reserved Police Force, Battalion No.172 Central Group, Billaspur, Chattisgadh. On 1-8-2006 he lost his life, during the call of duty. As per Rules, the Central Government was to release the pensionary benefits of the petitioner's son to the nominee of the deceased. The respondent No.1 filed an application before the Family Court, being Civil Misc. Application No.127 of 2006 for grant of Guardianship Certificate, in respect of the minor. This application was allowed by the Family Court by order dated 7-2-2007. According to the petitioner, she came to know that respondent No.1 has preferred an application before the competent authority to add the minor son as nominee of the deceased. The petitioner preferred Family Suit No.1185 of 2007 inter alia with a prayer to cancel the Guardianship Certificate issued to respondent No.1 and to join the petitioner as applicant No.2 in Civil Misc. Application No.127 of 2006. Both Civil Misc. Application No.127 of 2006 filed by the respondent No.1, and Family Suit No.1185 filed by the petitioner, are pending before the Family Court. The petitioner is aggrieved by order dated 2-12-2008 passed in Family Suit No.1185 of 2007, hence the present petition.

(3.) Mr.Ashish B.Desai, learned counsel for the petitioner has submitted that the impugned order is illegal and unsustainable in the eyes of law as it is beyond the scope of the Suit. By the said order, the Court below has travelled beyond the prayers made in the Suit. It is further submitted that while passing the impugned order, the Court below has failed to consider the contents of the Talaknama and Memorandum of Understanding dated 18-5-2004, signed by the deceased and respondent No.1. It is further submitted by the learned counsel for the petitioner that the Family Court ordered to pay 40% of the pension to the petitioner, and has opined that the custody of the minor child cannot be given to the petitioner, therefore, the said order deserves to be quashed and set aside. No other point has been urged before this court by the learned counsel for the petitioner.