NAMITA Vs. RAVI TANK

JUDGEMENT

(1.) This revision has been filed by the petitioners under Sec. 115 of the CPC against the order dtd. 19/9/2024, passed in MJCGW No. 75/2023 passed by Presiding Officer Family Court, Indore.

(2.) Learned counsel for the petitioners submitted that the respondent has filed application under Order 7 Rule 11 of CPC on the ground that the divorce decree passed in the year 2017 by the learned Family Court and as per terms and conditions the custody of the petitioner No. 2 was handed over to petitioner No. 1. When the divorce decree was allowed with that condition, the Family Court is not entitled to entertain an application under Sec. 11 of Guardian and Wards Act. The learned Family Court has erred in holding that under Sec. 26 of Hindu Marriage Act, variance with respect of the custody of child can be done by the Court in changed circumstances. It is also important that there is no change in circumstances and the petitioner No.1 is in the better position than the respondent for maintaining the child. Finding of learned Trial Court that the petition cannot be decided without the evidence is also incorrect in the eyes of law. In support of his arguments, he placed reliance in the judgment passed by the High Court of Jammu and Kashmir in Aisha Vs. Bashir Ahmad Haji , dtd. 5/9/1986 (First Appeal No. 39/1986) and also in the judgment passed by this High Court in Municipal Council Vs. Brajkishor Agrawal, dtd. 3/10/2024 (Second Appeal No. 525/2015).

(3.) In reply, learned counsel for the respondent by supporting the impugned order submitted that the learned Family Court, after appreciation of all the evidence and documents on record, has rightly given its finding, hence, it does not warrant any interference.In support of this arguments, he placed reliance in the judgment passed by the Hon'ble Apex Court in the case of Rosy Jacob Vs. jacob A. Chakramakkal reported as 1973 AIR SC 2090.