Chattisgarh High Court
Dr. Prajjwal Pradeep Soni vs Dr. Gurpreet Kaur on 9 July, 2026
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CGHC010343152023 2026:CGHC:28788
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 797 of 2023
Dr. Prajjwal Pradeep Soni S/o Shri Pradeep Soni Aged About 43 Years At-
Soni Multi Sepecialty Hospital, Abhanpur, P/s Abhanpur, District : Raipur,
Chhattisgarh
... Petitioner
versus
Dr. Gurpreet Kaur W/o Dr. Prajwal Pradeep Soni Aged About 42 Years D/o
Lt. Maninder Pal Singh, At- 61, Moti Lal Nehru Nagar, Bhilai, District : Durg,
Chhattisgarh
---Respondent
(Cause title taken from Case Information System)
Petitioner in person : Dr. Prajjwal Pradeep Soni
For Respondent : Mr. Ankur Agrawal, Advocate
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
09/07/2026
1. The present writ petition under Article 227 of the Constitution of India
filed by the petitioner against the impugned order dated 16.08.2023
Digitally
signed by
(Annexure P/1) passed by learned 1st Additional Principal Judge,
VED
VED PRAKASH
PRAKASH DEWANGAN
Family Court, Raipur, in Case No. 91 of 2022, whereby the
DEWANGAN Date:
2026.07.13
19:49:13
+0530application under Order 7 Rule 11 of CPC filed by the petitioner has
2been rejected and the maintainability of the application was kept
pending for its adjudication after recording evidence of the parties.
2. The petitioner in person would submit that the respondent is his wife.
Their marriage was solemnized in the year 2012 and out of their
wedlock, their son is born. Subsequently, the matrimonial dispute
arose between the parties, which is continued. With the allegation
that on 28.06.2022, the petitioner forcefully took her son from her
custody, she filed an application under Section 26 of the Hindu
Marriage Act, 1955 before the learned Family Court, Raipur. The
respondent-wife has also filed a WP(HC) No. 14 of 2022 before this
Court, in which the parties were directed to appear before the
learned Family Court and then the learned Family Court, after
hearing the parties, passed an order and grant interim custody of the
child with the respondent-wife. Since the application under Section
26 of the Hindu Marriage Act, 1955 is an interim application, it cannot
be independently registered in the proceeding and no order can be
passed for interim custody of the child. He filed an application on
26.11.2022 under Order 7 Rule 11 of CPC regarding maintainability
of the application filed by the respondent-wife and rejection of the
same. He would further submit that with respect to custody of child,
the respondent-wife is required to file her application under Section
25 of the Guardians and Wards Act, 1890 and the application under
Section 26 of the Hindu Marriage Act, 1955 is not maintainable. The
learned Family Court rejected the application on the ground that the
maintainability of the application is to be decided after recording
evidence of the parties. When the application itself is not
maintainable, all the subsequent proceedings is void ab initio and
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there is no need to record evidence of the parties, therefore, the
impugned order may be set aside and the application filed by the
respondent-wife may be dismissed.
******* He would rely upon the judgment of Hemlata Sahu v. Chetan
Das Sahu, 2015 (1) CGLJ 587, judgment dated 24.02.2026, passed
by coordinate bench of this Court in WP(227) No. 808 of 2025 (Dr.
Gurpreet Kaur v . Dr. Prajjwal Pradeep Soni) and Rajshri Agrawal
@ Ramshri Agrawal and another v. Sudheer Mohan and others,
2022 LiveLaw SC 864.
3. On the other hand, learned counsel appearing for the respondent,
opposes the submissions made by the petitioner-in-person and
would submit that, the present writ petition filed by the petitioner is
not maintainable, as he has a remedy to file an appeal under Section
19 of the Family Courts Act, 1984 or Civil Revision under Section 115
of the CPC. When the statutory alternative remedy is available to the
petitioner, the writ petition for exercising supervisory jurisdiction
under Article 227 of the Constitution of India cannot be invoked. He
would further submit that in reply to the application, the respondent-
wife has made prayer that the application filed by her may be
considered to be the application under Section 25 of the Guardians
and Wards Act, 1890. Merely by quoting wrong provision of law, by
itself is not sufficient to reject the application filed by the respondent-
wife, particularly when she filed an application in person, who may be
unaware about the correct provision of law. The reliefs and contents
of the application are relevant for its consideration. The respondent-
wife claimed custody of her minor son and in view of the welfare of
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minor son and nature of application, the learned Family Court rightly
registered the case as a separate application and has passed interim
order of interim custody of the child of the respondent-wife. He would
further submit that keeping in view the welfare of the child, the
learned Family Court also granted the visitation right in favour of the
petitioner-husband and has rightly rejected the application observing
that the maintainability of the application is to be decided after
recording evidence of the parties. He would further submit that no
prejudice is being caused to the petitioner-husband and he has a
right to defend either in the application under Section 26 of the Hindu
Marriage Act, 1955 or under Section 25 of the Guardians and Wards
Act, therefore, rejection of the application of the petitioner-husband is
justified and his writ petition is liable to be dismissed.
******* He would rely upon the judgment of K. Valarmathi and others
v. Kumaresan, 2025 SCC OnLine SC 985, Virudhunagar Hindu
Nadargal Dharma Paribalana Sabai and others v. Tuticorin
Educational Society and others, 2019 (9) SCC 538 and the order
dated 21.09.2022, passed by the Hon’ble Division Bench of this
Court in FA (MAT) No. 125 of 2022 (Jitendra Kumar Dewangan v.
Smt. Neeti Dewangan and another).
4. I have heard the petitioner-in-person and learned counsel for the
respondent and perused the material annexed with the petition.
5. The respondent raised an objection regarding maintainability of the
present writ petition in view of the provision of Section 19 of the
Family Courts Act and Section 115 of the CPC. Before examining the
merits of the challenge, it is necessary to consider the maintainability
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of the present petition under Article 227 of the Constitution of India.
The impugned order has been passed by the learned Family Court in
exercise of its jurisdiction under the Family Courts Act, 1984. Section
19 of the Family Courts Act provides a statutory remedy of appeal
against judgments and orders of the Family Court, while at the same
time specifically excluding appeals against interlocutory orders.
Further, by virtue of Section 19(6) of the Family Courts Act, the
revisional jurisdiction under Section 115 of the CPC stands excluded
in respect of proceedings before the Family Court. Thus, the
legislative scheme clearly manifests that interlocutory orders passed
by the Family Court are ordinarily not intended to be subjected to
appellate or revisional jurisdiction, except in accordance with the
limited supervisory jurisdiction of this Court under Article 227 of the
Constitution. However, such supervisory jurisdiction is to be
exercised sparingly and only in cases where the subordinate court
has acted without jurisdiction, in excess of its jurisdiction, or has
committed patent perversity resulting in failure of justice. In the
present case, the impugned order merely postpones the adjudication
of the objection regarding maintainability until the evidence of the
parties is recorded and does not finally determine any substantive
right of either party. Thus, interlocutory orders are ordinarily not
intended to be subjected to appellate or revisional jurisdiction, except
under Article 227 of the Constitution of India.
6. The main grievance of the petitioner is that the respondent-wife filed
an application under Section 26 of the Hindu Marriage Act, 1955
seeking custody of the minor child though, according to him, the
appropriate remedy was under Section 25 of the Guardians and
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Wards Act, 1890, and therefore the application itself was liable to be
rejected under Order 7 Rule 11 of the CPC. From perusal of the copy
of the reply of the application of order 7 Rule 11 of the CPC, the
respondent-wife has averred that the contents of the application is to
be seen and merely quoting the wrong provision, her application
cannot be dismissed. There is no mala fide intention of the
respondent-wife to file the application by quoting wrong provision of
Section 26 of the Hindu Marriage Act, 1955 and she prayed that her
application may be considered under Section 25 of the Guardians
and Wards Act, 1890.
7. It is a settled principle of law that merely because a litigant has
quoted an incorrect provision of law or has failed to mention the
correct statutory provision, the application cannot be rejected if the
Court otherwise possesses jurisdiction and the relief sought can be
traced to an appropriate statutory provision. The Court is required to
examine the substance, pleadings and relief claimed in the
application rather than the nomenclature or the provision mentioned
therein.
8. In the case of P.K. Palanisamy v. N. Arumugham, (2009) 9 SCC
173, the Hon’ble Supreme Court has observed that:-
“27……Only because a wrong provision was
mentioned by the appellant, the same, in our
opinion, by itself would not be a ground to hold
that the application was not maintainable or that
the order passed thereon would be a nullity. It is a
well-settled principle of law that mentioning of a
wrong provision or non-mentioning of a provision
does not invalidate an order if the court and/or
7statutory authority had the requisite jurisdiction
therefore.”
xxx xxx xxx
29. In N. Mani v. Sangeetha Theatre it is stated :
(SCC p. 280, para 9)
” 9. It is well settled that if an authority has
a power under the law merely because
while exercising that power the source of
power is not specifically referred to or a
reference is made to a wrong provision of
law, that by itself does not vitiate the
exercise of power so long as the power
does exist and can be traced to a source
available in law.”
9. Thus, mention of a wrong provision of law or non-mention of the
correct provision is not decisive where the power otherwise exists
and the relief can be granted under law. The substance of the
pleadings and the nature of the relief are determinative, and
therefore the objection raised by the petitioner about maintainability
of the application does not merit acceptance.
10. In the present case, a perusal of the application filed by the
respondent-wife would show that the substance of the relief claimed
is for restoration of custody of her minor child. Therefore, merely
because the application referred to Section 26 of the Hindu Marriage
Act, 1955, instead of Section 25 of the Guardians and Wards Act,
1890, the same could not have been rejected at the threshold,
particularly when the respondent-wife had instituted the proceedings
in person and has also specifically prayed before the Family Court
that the application be treated as one under the appropriate
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provision. The learned Family Court was, therefore, justified in
considering the nature of the relief and the contents of the application
rather than rejecting it solely on the ground of an incorrect provision.
11. The next question relates to the maintainability of the present petition
under Article 227 of the Constitution of India. The petitioner has
challenged an interlocutory order whereby the learned Family Court
has merely declined to reject the application and has observed that
the issue regarding maintainability would be considered while
deciding the matter after recording evidence. The supervisory
jurisdiction under Article 227 is intended to keep subordinate courts
within the bounds of their authority and is not meant to correct every
interlocutory order or substitute the High Court’s view for that of the
subordinate court. In Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai (supra), the Hon’ble Supreme Court held that
where an effective statutory remedy is available, the High Court
should ordinarily decline to exercise its supervisory jurisdiction under
Article 227 except in exceptional cases involving patent lack of
jurisdiction or manifest perversity.
12. Similarly, in Shalini Shyam Shetty v. Rajendra Shankar Patil,
(2010) 8 SCC 329, the Hon’ble Supreme Court held that Article 227
cannot be exercised as an appellate or revisional jurisdiction and
interference is warranted only where there is gross failure of justice
or patent perversity.
13. In the present case, the impugned order neither finally determines
the rights of the parties nor suffers from any jurisdictional error.
Rather, the learned Family Court has only deferred the issue
9
regarding maintainability to be considered along with the evidence.
Such an approach cannot be said to be perverse or without
jurisdiction so as to warrant interference under Article 227 of the
Constitution of India.
14. Another significant aspect is that the dispute concerns the custody of
a minor child. It is trite law that in all proceedings relating to custody
or guardianship, the paramount consideration is not the legal rights of
the parents but the welfare and best interest of the child. In Gaurav
Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Hon’ble
Supreme Court observed that “the welfare of the child is the
paramount consideration and the rights of the parents are
subservient thereto”.
15. In Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, the
Hon’ble Supreme Court reiterated that custody disputes cannot be
decided on technicalities and that the welfare of the child is the sole
and dominant consideration.
16. It is also relevant to note that during the pendency of the same
Family Court proceedings, the learned Family Court had passed an
interim order granting custody of the minor child to the respondent-
wife with visitation rights to the petitioner. The said interim order was
challenged before this Court in WP(227) No. 808 of 2025 (Dr.
Gurpreet Kaur v. Dr. Prajjwal Pradeep Soni), wherein the
Coordinate Bench, by judgment dated 24.02.2026, declined to
interfere and upheld the interim arrangement and further directed the
Family Court to know the wishes of the child, as to with whom he
wants to live after entering into and effective conversation with him
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and form an opinion as to with which of the parents, his welfare
would be ensured. In these circumstances also, no useful purpose
would be served by interfering with the impugned interlocutory order
rejecting the petitioner’s application under Order 7 Rule 11 CPC.
17. In view of the aforesaid discussion, this Court is of the considered
opinion that the learned Family Court has committed no jurisdictional
error or patent illegality in rejecting the application filed by the
petitioner under Order 7 Rule 11 of the CPC. Merely because the
respondent-wife referred to an incorrect statutory provision would not
render her application non-maintainable when the substance of the
pleadings clearly discloses a claim for custody of the minor child and
the Court is competent to consider such relief under the appropriate
provision of law. The impugned order is only an interlocutory order
leaving the question regarding maintainability to be adjudicated after
evidence, and no exceptional circumstance is made out warranting
interference under Article 227 of the Constitution of India.
18. Accordingly, the writ petition, being devoid of merit, deserves to be
and is hereby dismissed.
19. No order as to costs.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
