OM BIHARI MALHOTRA Vs. NISHA MALHOTRA

JUDGEMENT

(1.) The present appeal under Section 47 (b) of Guardians and Wards Act, 1890 read with Section 19 (1) of the Family Courts Act has been filed against the order dated 15.7.99, passed by the, Family court, rejecting the objection filed under Section 9 of the Guardians and Wards Act (hereinafter referred to as the Act) to the proceeding under Section 10 of the Act initiated by the mother of the minor child.

(2.) The fact of the case are that Smt. Nisha Malhotra filed an application under Section 10 of the Act for the custody of the minor child, namely. Km. Swati Malhotra, her daughter from the wed-lock with the deceased Depak Malhotra, who died on 20.6.95. It has been alleged that the property situated at Staff House compound Mallital, Nainital belonged to the deceased and they were residing at Nainital. Till the time of death of Deepak Malhotra, the minor child was with them at Nainital, but after the death of Deepak Malhotra, they had to go to Delhi for performance of 13th day of the last rites and at that time, the minor child was detained by the grand-parents.

(3.) The present application was filed in the year 1997, claiming the custody of the minor child. The proceedings remained pending for two years and the appellants despite service of the notice did not file any written statement. It was in July, 1999, that the appellant filed objection under Section 9 of the Act alleging that the proceedings initiated at Nainital are not maintainable. The case set up by the appellant was that after the birth of the child, the minor was residing at Delhi with her grand parents and she was studying there in a school. In support of this allegation, they have filed the progress report of the minor child at the institution, namely. St. Anthony Girls Senior Secondary School. Paharganj, New Delhi of U.K.G. for the year 1995-96 and class 1B for the year 1996-97. An identity card for the year 1996-97 has been placed on the record by the appellants. The birth certificate issued by the hospital where Km. Swati Malhotra was born and the certificate dated 6.1.92 issued by the Lok Nayak Jai Prakash Narain Hospital, Delhi has also been placed on record indicating that she was given triple antigens vaccination.