ARUNA KUMARI Vs. AMBRISH KUMAR SENGAR

JUDGEMENT

(1.) APPELLANT-ARUNA Kumari was married to respondent-Dr. Ambrish Kumar Sengar on 14-2-1993. A child named Shashank was born within the wedlock on 26-9-1994. On account of some matrimonial dispute, appellant was living with her parents at Vasco-de-Gama, Goa along with her son. Ex parte decree for divorce was passed in favour of the respondent by the Court at Udaipur in the State of Rajasthan. Respondent claimed that the Court at Udaipur has found that the husband and wife had last resided at Udaipur in the year 1998. After the said ex parte decree, respondent entered into second marriage. Respondent then submitted an application under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act for custody of the child Shashank in the Court of VIIth Additional District Judge. Gwalior. The then Seventh Additional District Judge. Gwalior passed an ex parte order dated 27-4-2002 and allowed the application under Section 25 of the Guardian and Wards Act in favour of the respondent directing delivery of custody of the son to the respondent. Having learnt that said ex parte decree has been passed, appellant filed an application under Order IX, Rule 13, C. P. C. for writing aside the ex parte decree on 4 9-2002 before the Court of VIIth Additional District Judge, Gwalior. Said application was returned to the appellant for presentation before the Family Court on 7-10-2002. Then application was filed before the Family Court setting out the grounds for setting aside the ex parte decree specifically alleging that notices were not served upon the appellant. Said application has been dismissed by the Family Court on the ground that the provisions of Order 9, Rule 13, C. P. C. are not applicable to the proceedings under Guardians and Wards Act. After rejection of the application, appellant has preferred this appeal before this Court under Section 19 of the Family Courts Act praying therein that the application under Order IX, Rule 13, C. P. C. before the Family Court was maintainable and order passed by the Family Court deserves to be set aside.

(2.) OBJECTIONS were raised by the respondent that the order passed under Section 25 of the Guardian and Wards Act is appealable under Section 47 of the Guardian and Wards Act and since the order is not a decree, therefore, application under Order IX, Rule 13, C. P. C. is not maintainable. Family Court dismissed the application holding therein that since no decree is passed, therefore, application under Order IX, Rule 13, C. P. C. is riot maintainable.

(3.) QUESTION involved in this case is when an ex parte order under the provisions of Guardian and Wards Act, whether provisions of Order IX, Rule 13 of the Code of Civil Procedure are applicable?