Case Note & Summary
The present appeal arises from a judgment and order dated 28.5.2013 passed by the Judge, Family Court No. 7, Bandra, Mumbai, in Petition No. D-75 of 2012. The respondent (Preetimala Sinha) had filed the petition under Sections 6 and 7 of the Guardian and Wards Act, 1890, seeking custody of a minor child. The appellant (Reena Vivek Sinha) was the respondent in that petition. The Family Court passed the impugned order ex parte on the premise that the appellant, though served with summons, did not appear. The appellant challenged this order before the Bombay High Court. The High Court, after hearing rival arguments, noted that the impugned order was passed without proper service of summons on the appellant. The court observed that the factual position required examination to determine whether the order should be set aside and the matter remanded. The High Court found that the Family Court had not ensured effective service, and thus the ex parte order was unsustainable. Consequently, the High Court set aside the impugned judgment and order and remanded the matter back to the Family Court for hearing in accordance with law. The court directed the Family Court to give an opportunity of hearing to both parties and decide the matter afresh.
Headnote
A) Family Law - Custody of Minor Child - Ex Parte Order - Sections 6, 7 of Guardian and Wards Act, 1890 - The Family Court passed an ex parte order granting custody of the minor child to the petitioner without ensuring that the respondent mother was properly served with summons. The High Court held that the impugned order was passed without proper service and in violation of principles of natural justice, and set aside the order, remanding the matter for fresh hearing. (Paras 1-3)
Issue of Consideration
Whether the impugned ex parte judgment and order granting custody of the minor child to the petitioner was passed after proper service of summons on the respondent and whether it should be set aside and remanded for fresh hearing.
Final Decision
The High Court set aside the impugned judgment and order dated 28.5.2013 passed by the Family Court No. 7, Bandra, Mumbai in Petition No. D-75 of 2012 and remanded the matter back to the Family Court for hearing in accordance with law, directing the Family Court to give an opportunity of hearing to both parties and decide the matter afresh.
Law Points
- Ex parte decree can be set aside if service is not proper
- Natural justice requires opportunity of hearing
- Remand is appropriate when trial court fails to ensure proper service
