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1986 DIGILAW 50 (GAU)

Amal Saha v. Basanta Saha

1986-04-10

MANISANA

body1986
This revision petition arises from the order dated 22.2.86 passed by the District Judge, Kamrup in Misc. Case G/C 252/85. 1. The order relates to the jurisdiction of the District Judge, Kamrup under Section 9 of the Guardians and Wards Act. The learned District Judge has given a finding that he has a jurisdiction. It is stated at the bar that District Judge recor­ded the statements of the witnesses but I do not find that he has discussed the evidence of those PWs and DWs in order to evaluate the evidentiary value or the statements. 2. Under Section 9 of the Guardians and Wards Act the jurisdiction of the District Judge is confined only to the district where the minors ordinarily reside. Words 'ordinarily resides' appearing in Section 9 of the Act means more than a temporary residence even though such period may be considerable. Mere temporary residence or residence by compulsion at a place howe­ver long, cannot be equated to, or treated as the place of ordi­nary residence. The words 'ordinarily resides' are not identical and cannot have the same meaning as residence at the time of application. In AIR 1967 Assam 198 (DB) where minors were proved to have been residing with their mother at a place 'A' for one year and there was no evidence of the residence else­where, it was held that an application for guardianship could be entertained by the court at 'A' as the minors would be deemed to be residing at place 'A'. 3. In view of the above principles where the minors ordi­narily reside is to be decided on facts and circumstances of the case and not of a presumption. 4. For the foregoing reasons the petition is allowed and the impugned order is set aside. The case is sent back to the learned District Judge for his reconsideration where the minors ordinarily reside in the light of the above observations. The parties shall appear before the learned District Judge on 19.4.86 to receive directions of that court as to further proceedings in the case. 5. As regards production of the children under Section 12 of the Act, the learned District Judge shall act in accordance with law. The learned District Judge may see the case repor­ted in (7957) 1 ALL ER 379, Harden vs. Harben. 5. As regards production of the children under Section 12 of the Act, the learned District Judge shall act in accordance with law. The learned District Judge may see the case repor­ted in (7957) 1 ALL ER 379, Harden vs. Harben. Parties are given liberties to raise all just objections when the matter u/s 12 of the Act is taken up.