TEJWATI Vs. JEET RAM

JUDGEMENT

(1.) By way of the instant appeal, the appellant has challenged the order dated 5.4.2014 passed by the District Judge, Family Court, Gurgaon whereby the application filed by her for setting aside the ex-parte judgment and decree dated 10.2.2011 passed in a petition under Section 25 of the Guardian and Wards Act, 1890 (in short "the Act") read with Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, was dismissed. Put shortly, the facts necessary for adjudication of the present appeal as narrated therein may be noticed. The marriage of the respondent with Smt. Sunita (since deceased) was solemnized on 22.1.1999 as per Hindu rites and ceremonies. Out of the said wedlock, minor son, Gaurav was born on 19.10.1999. However, on 11.4.2000, Smt. Sunita set ablazed herself and as a result thereof, she died due to burn injuries. The FIR was registered against the respondent. However, he was acquitted by the trial court. Thereafter, the appellant along with his son came to the house of the respondent and requested him to send the minor son with her. The minor was sent with the appellant in the year 2002 and since then he was in the custody of the appellant. However, the respondent visited the house of the appellant to see his child and to take him back but he was not allowed to take the child with him. He also deposited Rs. 3 lacs in the shape of FDR in the name of the minor and was also providing funds to the appellant to look after the minor. The appellant was an old lady aged 68 years and had no source of income. Accordingly, the respondent filed a petition for custody of the minor, namely, Gaurav. The appellant did not appear despite service to contest the petition and was, therefore, proceeded against ex-parte. The trial court vide ex-parte judgment and decree dated 10.2.2011 allowed the petition and the respondent was declared as guardian of the person and" property of the minor child Gaurav. The appellant was directed to hand over me custody of the minor within three months from the date of passing of the judgment and decree. Feeling aggrieved, the appellant filed an application for setting aside the ex-parte judgment and decree dated 10.2.2011. The trial court vide order dated 5.4.2014 dismissed the said application. Hence, the present appeal.

(2.) Learned counsel for the appellant, inter alia, submitted that in view of Section 9 of the Act, the jurisdiction was of Delhi courts as the child and the appellant were residing at Delhi. It was also urged that the marriage was solemnized in the year 1999 whereas the petition for custody was filed in 2009. It was further contended that the trial court was in error in initiating ex-parte proceedings against the appellant. According to the learned counsel, the appellant had never refused to receive summons and in fact the respondent had given the incomplete address of the appellant at Delhi. Even the address given on me envelope for service through registered post was incomplete and the postal authorities reported that without address of house number, mohalla etc., the registered envelope could not be delivered.

(3.) On the other hand, learned counsel for the respondent supported the order dated 5.4.2014 as well as the ex-parte judgment and decree dated 10.2.2011 passed by the trial court. Learned counsel further submitted the appellant was properly served but she did not appear.