Raksha Devi vs Union Territory Of J&K And Another

Vinod Chatterji Koul, J

This revision petition has been filed against the order passed by the learned Principal Sessions Judge, Ramban whereby the application of the

petitioner seeking custody of her child (son) has been rejected holding that the court had no jurisdiction and such question cannot be considered in

these criminal proceedings as the civil proceedings for appointment as guardian of the minor are pending and the petitioner is pursuing the said

application under the Guardians and Wards Act, 1890 before the said court and in case this application is allowed in these proceedings, the

proceedings initiated under Section 7 of the Guardians and Wards Act shall become infructuous. This order of the trial court has been called in

question in this revision petition and the question for determination in this revision is whether this revision petition is maintainable and has any merit.

From the facts of this case, it emerges that with regard to the death of the husband of the petitioner, FIR No. 14/2016 was registered under Section

279/304-A RPC against the petitioner and in respect of the said incident, charge sheet has also been field before the Principal Sessions Judge,

Ramban.

The son of the petitioner is with respondent No.2. The respondent No.2 Isher Singh had filed an application under Section 7 of the Guardians and

Wards Act against the petitioner for appointing him as guardian of said minor to which objections have been filed by the petitioner herein and the

parties have been asked to produce evidence. The petitioner as well as respondent is being represented by their counsels. The evidence of petitioner is

going on. the petition is still pending. The trial court in the proceedings under Section 7 of the Guardians and Wards Act which is being contested by

the petitioner herein has to determine whether the respondent who is the petitioner before the trial court is entitled to be appointed as a guardian and

whether the minor could be kept in his custody. The petitioner herein is contesting the said petition and it is in those proceedings where the question of

appointment of guardian and the custody of the child can be considered and decided. While such proceedings are pending consideration, in case

application seeking custody in these proceedings is allowed and minor is ordered to be handed over to the petitioner, the proceedings under the

provisions of the Guardians and Wards Act would become infructuous. Such question cannot be as such determined in these proceedings.

Section 12 of the Guardians and Wards Act, 1890 also deals with the power of the court where the proceedings under the Act are pending to make

interlocutory order for production of minor and interim protection of person and property and as per the said section, the court can make such order

for the temporary custody and protection of the person or property of the minor as it thinks fit.

Issues have been raised in the petition by the petitioner (respondent No.2 herein) for appointing him as a guardian of the minor in exclusion of the

petitioner (herein) and as per the record on file, the petitioner herein is facing the charge for the murder of her husband regarding which mention has

been made in the order impugned also. The question of custody and appointment of guardian can be taken into consideration only in the proceedings

under the provisions of the Guardians and Wards Act and the respondent herein namely Sh. Isher Singh has rightly taken recourse to such

proceedings in the civil court and the petitioner herein has filed her objections objecting to the appointment of Sh. Isher Singh as guardian and it is in

such proceedings, these issues can be decided. The issue which is already pending determination before any civil proceedings cannot be considered

and gone into in these proceedings. The trial court has not thus in such circumstances committed any error or fault in passing the order impugned.

Order impugned is well reasoned and does not call for any interference.

This petition is accordingly dismissed.