1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 66 of 2010 WITH CIVIL APPLICATION NO. 140 of 2010 Pooja Ranjit Bhagchandani Bhopal 462 001. .....Appellant Vs. Ranjit Harish Bhagchandani Ahmedabad ....Respondent Mr. R.T. Lalwani with Smt. S.I. Jayakar(Lalwani), advocate for the appellant. Mr. P.K. Dhakephallkar, Sr. Advocate with Mr. Ramchandra Yadav, advocate for the respondent. CORAM:- A.M.KHANWILKAR AND A.A..SAYED, JJ DATED:- JULY 06, 2010 P.C. Heard Counsel for the parties. 2. This appeal arises from the order passed by the Family Court at Mumbai dated 3rd April, 2010 below Exhibit 21 in Petition No. D-44/2009. The main Petition is filed by the husband for custody of the minor child born out of the 2 wedlock between the parties. The Petition was originally presented in the Court at Ahmedabad. The Appellant-wife filed Transfer Petition under Section 25 of the Code of Civil Procedure before the Apex Court being Transfer Petition (Civil) No. 350/2007 praying that the proceedings be transferred to the Court at Bhopal where she was now residing alongwith her minor son since 23rd December, 2006. The said Transfer Petition was disposed of by the Apex Court by transferring the proceedings from Family Court at Ahmedabad to Family Court in Mumbai. This order was passed after hearing both sides. On the basis of the said order the proceedings commenced before the Family Court at Mumbai. 3. The Appellant thereafter took out Application before the Family Court at Mumbai being Exhibit 21, praying that the Family Court where the original proceedings were filed at Ahmedabad, had no jurisdiction to try and entertain the proceedings and for which reason that issue be decided as preliminary issue and the Petition be dismissed on that count. This Application was opposed by the Respondent-husband. The Family Court by the impugned Judgment and order has rejected the said Application. The Family Court has essentially found that the matter before the Family Court at Mumbai has been transferred by the Apex Court and for which reason it is not open to the Appellant-wife to now contend 3 to the contrary. This decision is the subject matter of challenge in the present Appeal. 4. The first argument of the Appellant, is that, the fact that the proceedings before the Family Court at Mumbai are the outcome of the order passed by the Supreme Court can be no ground to discard the issue of jurisdiction of the Court at Ahmedabad which goes to the root of the matter. That contention is still available to the Appellant considering the expansive provision contained in Section 25 in particular sub-section (5) thereof. According to the Appellant, the proceedings before the Family Court at Mumbai will have to be decided on the basis of the law as was applicable to the Court at Ahmedabad. It is then contended that the original Petition filed by the Respondent-husband was under provisions of Hindu Minority & Guardianship Act, 1956. Section 2 of the said Act plainly provides that the provisions of the said Act are supplementary to the Act VIII of 1890 (i.e. Gaurdians & Wards Act). Section 9 of the Act VIII of 1890 stipulates that the Petition for custody such as the present one is required to be filed where the minor ordinarily resides. According to the Appellant, on the date of institution of the Petition in the Court at Ahmedabad on 26th December, 2006, the minor was ordinarily residing at Bhopal. In this view of the matter, the Court at Ahmedabad would have no jurisdiction to try and 4 entertain the said Petition. As aforesaid, the Family Court at Mumbai has rejected the preliminary objection raised by the Appellant primarily on the finding that the matter has been registered to be tried and decided before the Family Court at Mumbai consequent to the order passed by the Apex Court in the Transfer Petition filed by the Appellant-wife herself. 5. Per contra, Counsel for the Respondent contends that the Application filed by the Appellant is completely misplaced. According to the Respondent, if the the said contention was to be entertained, it would result in a situation where the decision of the Apex court would be nullified. More so, when the said decision of the Apex Court was the product of the Petition filed by the Appellant-wife. Further, the objection regarding the territorial jurisdiction of the Ahmedabad Court in the first place ought to have been raised before the Ahmedabad Court itself and in any case in the Transfer Petition which was filed before the Apex Court. That plea has not been raised in either of these proceedings. Instead, it is now resorted to when the matter stood transferred on account of the order of the Apex Court on the Petition filed by the Appellant-wife herself. Besides, it is contended that from the averments in the Petition filed by the Respondent- husband it is evident that the Appellant was staying alongwith the Respondent at the matrimonial home until 23rd December, 2006. She removed herself from 5 her matrimonial house and went alongwith the minor son to Bhopal on 23rd December, 2006. It is in this background the Respondent filed Petition before the Family Court at Ahmedabad on 26th December, 2006 for relief of custody of the minor son. According to the Respondent, the proximity of time within which the Petition was instituted in the Family Court at Ahmedabad, presupposes that the minor son was ordinarily residing at Ahmedabad at the relevant point of time. According to the Respondent, even on this count no interference is warranted at the instance of the Appellant. 6. Having considered the rival submissions, we have no hesitation in taking the view that the challenge to the impugned decision is without any substance. The Appellant having resorted to remedy of Transfer Petition before the Apex Court and as there is nothing on record to indicate that the Appellant reserved her right to raise the plea of jurisdiction of the Ahmedabad Court before the Court where the proceedings were to be transferred, it is too late in the day for the Appellant to now contend to the contrary. The order of the Apex Court is binding on the Appellant. Until the said order is to be set aside and/or modified, the question of entertaining the grievance of the Appellant regarding territorial jurisdiction of the Family Court at Ahmedabad does not arise. Significantly, it is not the plea of the Appellant that the Family court at Ahmedabad lacked inherent 6 jurisdiction to try and decide the dispute. If the argument of the Appellant were to be accepted in the form in which it is presented in the Application Exhibit 21, it would naturally result in nullifying the direction issued in the Apex Court directing the Family Court at Mumbai to register and try and decide the Petition which has been transferred from Family Court at Ahmedabad. The said decision is not only binding on the parties but also the Family Court at Mumbai which is obliged to decide the said proceedings on merits of the controversy in accordance with law. 7. The argument of the Appellant that by virtue of sub-Section (5) of Section 25 of the Civil Procedure Code, the question regarding territorial jurisdiction of the Family Court at Ahmedabad was open to challenge cannot be countenanced. That was possible only if the Appellant were to take permission of the Apex Court to urge that contention at the appropriate stage. We are in agreement with the argument of the Respondent that inspite of the purport of Section 25(5) of Civil Procedure Code, in the fact situation of the present case the matter will have to be decided on merits of the controversy between the parties and not in the context of territorial jurisdiction of the Ahmedabad Court as per the provisions of Act of 1956 and/or of 1890 or any other legal provisions as the case may be. It is not necessary for us to delve into the last contention raised 7 on behalf of the Respondent that in any case the Ahmedabad Court would have had jurisdiction to decide the proceedings instituted by the Respondent-husband as at the relevant time the minor son was ordinarily residing at Ahmedabad. In that, he was pursuing his studies in IIIrd standard in St. Xavier’s School at Ahmedabad in December 2006 and staying alongwith his parents at Ahmedabad. 8. Taking any view of the matter, in our opinion, the issue regarding territorial jurisdiction of the Family Court at Ahmedabad raised on behalf of the Appellant is devoid of merits. Accordingly, this Appeal fails. The same is dismissed. 9. In view of dismissal of the Appeal, nothing survives for consideration in the accompanying Civil Application for interim-relief. The same is also dismissed. (A.A.SAYED, J) (A.M.KHANWILKAR, J)