Case Note & Summary
The appellant, Jayshri Gajendra Mahajan, wife of the respondent Gajendra Pandit Mahajan, filed an appeal against the judgment and order dated 16th June 2017 passed by the District Judge-5, Jalgaon, in Miscellaneous Civil Application No. 85 of 2016 under Section 25 of the Guardians and Wards Act, 1890. The trial court had ordered the custody of a minor girl aged 7 years to be handed over to the father. The appellant's grievance was that there was no proper service of notice upon her, yet the trial judge proceeded ex-parte. The High Court perused the record and found that notice dated 07-03-2017 was issued in the name of the appellant and her minor daughter. The bailiff visited her house on 18-03-2017, but the appellant and her daughter were out of station, and the appellant's father refused to accept the notice. Earlier, notice sent by Registered Post Acknowledgment Deed (RPAD) was returned unserved with an endorsement that an intimation was given but the noticee did not visit the post office. The trial court merely observed that notice remained unserved and proceeded ex-parte. The High Court held that the trial court erred in proceeding ex-parte without ensuring proper service. The court set aside the impugned order and remanded the matter back to the trial court for fresh hearing after giving proper notice to the appellant. The court directed the trial court to decide the matter afresh in accordance with law, without being influenced by the earlier order. The appeal was allowed and the civil application was disposed of.
Headnote
A) Family Law - Child Custody - Proper Service of Notice - Guardians and Wards Act, 1890, Section 25 - The appeal challenged an ex-parte order granting custody of a minor girl to the father. The High Court held that the trial court erred in proceeding ex-parte as the notice was not properly served on the mother; the bailiff's report indicated the noticee was out of station and the father refused to accept, and RPAD was returned unserved. The court set aside the order and remanded the matter for fresh hearing after proper service. (Paras 2-5)
Issue of Consideration
Whether the trial court could proceed ex-parte against the appellant-wife when notice was not properly served, and whether the custody order should be set aside.
Final Decision
The appeal is allowed. The impugned judgment and order dated 16-06-2017 passed by the District Judge-5, Jalgaon, in Miscellaneous Civil Application No. 85 of 2016 is set aside. The matter is remanded back to the trial court for fresh hearing after giving proper notice to the appellant. The trial court shall decide the matter afresh in accordance with law, without being influenced by the earlier order. The civil application is disposed of accordingly.
Law Points
- Natural justice
- proper service of notice
- ex-parte proceedings
- child custody
- welfare of minor
