Allowed

Sri L.Gangadhara Pratap v. Ms. L.Neelima

Telangana HC14 Jun 2013FCA/201/2012

Case brief

AI extract

What is this about?

The appellate court set aside an ex parte decree passed in a custody proceeding. The High Court held that passing a decree on the same day the mother filed to set aside an ex parte order was unjustified. No evidence or findings were recorded by the trial court, warranting a remand.

What did the court decide?

Set aside ex parte decree dated 02.05.2012 and remand matter to trial court for fresh consideration with G.P.A. included.

Sri L.Gangadhara Pratap Vs Ms. L.Neelima — Child Custody and Guardianship | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE S.V.BHATT

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F.C.A.No.201 of 2012

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JUDGMENT: (Per LNR,J)

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The appellant is the husband of the respondent. They were married in the year 2004 and they were also blessed with a male child, by name Jatin Praneel. Both of them lived in United States for a considerable time and even now, the appellant is residing at that place. Differences have arisen between them and the respondent filed F.C.O.P.No.1107 of 2011 under Section 7 of the Guardian and Wards Act for custody of the minor child. The appellant was set ex parte on 10.01.2011. On coming to know that, he filed I.A.No.72 of 2011 under Rule 7 of Order 9 C.P.C., through G.P.A., with a prayer to set aside the said order. The trial Court dismissed I.A.No.72 of 2011 on 02.05.2012 on the ground that it was filed by the G.P.A. On the same day, the trial Court passed an ex parte decree in F.C.O.P.No.1107 of 2011. This appeal under Section 19 of the Family Courts Act is filed against the said decree.

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Sri D.Prakash Reddy, learned senior counsel appearing for the appellant submits that the endeavour made by the appellant to get the order dated 10.01.2011 set aside through the G.P.A. was not permitted by the trial Court and on the same day, the ex parte decree was passed. He submits that being a resident of United States, it is difficult for the appellant to be physically present in the Court in India and permission ought to have

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been accorded to the G.P.A. to pursue the matter, even while reserving the right of the trial Court to insist on his appearance at any given point of time. Learned counsel further submits that even if the order setting the appellant ex parte remained in force, the trial Court was under obligation to record a finding on the basis of evidence and no such effort was made in the instant case.

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Smt. Venkateswari, learned counsel for the respondent on the other hand submits that the appellant remained ex parte before the trial Court and the application filed under Rule 7 of Order 9 C.P.C. was totally untenable in law. She contends that once the application filed under Rule 7 of Order 9 C.P.C. was dismissed, the trial Court has no option except to decree the O.P.

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The relationship between the parties is not disputed and it is an unfortunate case, where the mother is denied the custody of the child. This is not the time and occasion for this Court to deal with the circumstances that led the parties to live separately or the minor child being in U.S.A.

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The respondent filed the O.P. for the custody of the child. Being the mother of the child, she has every right to insist on the custody. Even from the cause title in the O.P., it is evident that the appellant is in United States. Obviously because he was not before the trial Court, he was set ex parte on 10.01.2011. Much before any substantial progress has taken place in the O.P., the appellant has filed I.A.No.72 of 2011 under Rule 7 Order 9 C.P.C. through his G.P.A. Instead of ensuring the presence of the sole respondent before it for effective adjudication of the matter, the trial Court has proceeded

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on hyper technicalities and dismissed the I.A. The curious part of it is that on the same day, ex parte decree was passed that too without recording any evidence and without recording any finding.

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In case, the trial Court was not inclined to permit the G.P.A. to represent the appellant herein, it ought to have given an opportunity to him to take alternative steps. There was no justification for the trial Court in passing the decree in the O.P. on the same day. Further, assuming that the appellant remained ex parte, the trial Court was under obligation to record findings as to the claim made by the respondent on the basis of the evidence. Not a single witness was examined, much less any documents were taken on record.

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Hence, we allow the appeal and set aside the ex parte decree, dated 02.05.2012 passed in F.C.O.P.No.1107 of 2011. The matter is remanded to the trial Court for fresh consideration and disposal. I.A.No.72 of 2011 shall be taken up afresh duly giving an opportunity to the appellant herein to get the G.P.A. made part of record. It is also directed that within four weeks from the date of first hearing, the trial Court shall either pass a final order, if the other steps are complied with, or pass an interim order, if any I.A. is filed by the respondent herein. if not already filed.

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The miscellaneous petition filed in this appeal shall also stand disposed of. There shall be no order as to costs.

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L.NARASIMHA REDDY, J

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S.V.BHATT, J Date: 14.06.2013 JSU

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE S.V.BHATT

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F.C.A.No.201 of 2012

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Date: 14.06.2013

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JSU

Sri L.Gangadhara Pratap v. Ms. L.Neelima

Case brief

What is this about?

What did the court decide?

Sri L.Gangadhara Pratap v. Ms. L.Neelima

Case brief

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What did the court decide?

What the court decided

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