Usha Devi Sharma v. Rajendra Kumar Kalia — 1991 DIGILAW 88 (PAT)

Judgment Sachchidanand Jha, J. 1. These two revision applications are being disposed of by a common judgment since they arise out of the same order in proceeding under Sec. 25 of the Guardians and Wards Act, 1990 (hereinafter referred to as the Act). While Civil Revision 401 of 1989 has been filed by Smt. Usha Devi Sharma, the applicant in the said proceeding in the Court below against the order refusing her petition for interim custody of the child under Sec. 12 of the Act, Civil Revision No. 144 of 1989 has been filed by the opposite party against the order disallowing their objection as to jurisdiction of the Court. The principal contestants are the two sisters, with their respective husbands arrayed on the sides of their wives. 2. The relevant facts of the case are that a male child called Amit @ Sharad was born to Smt. Usha Devi Sharma (hereinafter referred to as the petitioner) on 1-11-1982 at Bhagalpur. The child being the third issue of the parents, the elder sister of the petitioner (Smt. Shakuntala Devi Kalia) (hereinafter referred to as the opposite party), who was issueless, expressed a desire to the child in adoption and on 26-11-1982 some kind of agreement is also said to have been executed in that regard. According to the opposite party thereafter on 5-3-1983 the formal adoption of the child by her took place and the child ever since has been living with her as adoptive mother at Daltonganj where the family resides. According to the petitioner, however, although initially she and her husband in order to keep good relation with her sister had agreed to give the child in adoption, later they gave up that idea. According to the petitioner, however, although initially she and her husband in order to keep good relation with her sister had agreed to give the child in adoption, later they gave up that idea. According to her further, the opposite party come to Bhagalpur in January, 1985 to invite the petitioner and her husband to attend some marriage ceremony in her family at Daltonganj to be held in February, 1985 and again proposed to take the child in adoption and on refusal by the petitioner, the opposite party took the child with them saying that they would like to keep the child for sometime out of love and affection and assuring the petitioner that he would be returned to her when she would come over to Daltonganj to attend the marriage ceremony, According the petitioner, the child was not returned even after the marriage ceremony was over, initially with the request to allow the child to remain with them for some further period of three to four months, and later they refused to return the child on the plea that the child was their adopted son. In the circumstances, the aforementioned application under Sec. 25 of the Act giving rise to Guardianship Case No. 49 of 1986 in the Court of District Judge, Bhagalpur, was filed for a direction to the opposite party to restore the aforesaid Amit to the custody of the petitioner. During the pendency of the case an application under Sec. 12 of the Act for Interim custody of the child was filed on behalf of the petitioner on 10-6-1987. While the case was in the stage of examination of witnesses, an application challenging the jurisdiction of the Court was filed on behalf of the opposite party on 21-4-1988. The aforesaid two petitions have been rejected by the impugned order in the manner stated above and hence these revisions. 3. I will take up the question of jurisdiction of the Court which is the subject matter of Civil Revision No. 144 of 1989. Mr. The aforesaid two petitions have been rejected by the impugned order in the manner stated above and hence these revisions. 3. I will take up the question of jurisdiction of the Court which is the subject matter of Civil Revision No. 144 of 1989. Mr. Sukumar Sinha submitted that an application in respect of the custody of the child or the minor can be filed only in a Court within whose local jurisdiction the minor ordinarily resides and since admittedly on the date of application the child was residing at Daltonganj with his adoptive parents, the Court of District Judge of Palamau at Daltonganj alone will have jurisdiction in terms of Sec. 9 of the Act. He further submitted that even on the own case of the petitioner, the child had been taken to Daltonganj with the consent of the petitioner and her husband and, therefore, it will amount to removal within the meaning of Sec. 25 So as to confer jurisdiction upon the Court to try the case thereunder. Mr. S.C. Ghose, appearing on behalf of the petitioner, on the other hand, submitted that the question of jurisdiction in terms of Sec. 9 of the Act is relevant only in a case where the dispute is with respect to the guardianship of the minor between the parties and not in a proceeding under Sec. 25 where the Court has only to see as to whether the minor has left or is removed from custody of his guardian from that place and it will be for the welfare of the minor to restore (he custody or not. 4. It is true that Sec. 9 in terms, refers to applications with respect to the guardianship of the person or property of the minor. It is also true that the question of guardianship is not directly in issue in the instant proceeding. However, it is not necessary for me to make a detailed examination of the contention in this regard since on the facts of the case. I am satisfied that whether it is on the ground of ordinary residence of the child concerned or on the ground of acrrual of action, the application in the Court of District Judge, Bhagalpur, is maintainable. Sub-sec. (1) of Sec. 25 of the Act reads as follows : "25. I am satisfied that whether it is on the ground of ordinary residence of the child concerned or on the ground of acrrual of action, the application in the Court of District Judge, Bhagalpur, is maintainable. Sub-sec. (1) of Sec. 25 of the Act reads as follows : "25. Title of guardian to custody of ward.-V a ward leaves or is removed from the custody of a guardian of his person, the Court, if is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. On a plain reading to the Section it would appear that where a ward has left or is removed from the custody of his guardian, and the Court is of the opinion that it will be in the interest or welfare of the ward to direct restoration of his custody to the guardian, it may make an appropriate order in that regard. There is no dispute that in terms of Sec. 4(5) of the Act the term Court means the District Court. The only dispute is, so, far territorial jurisdiction is concerned, whether the District Judge of Palamau of Bhagalpur has got the jurisdiction. It is an admitted position that the child concerned was born at Bhagalpur where his natural parents reside. The only dispute between the parties is with regard to the manner and/or the time of taking him away from Bhagalpur to Daltonganj. According to the petitioner, the child has been taken deceitfully by playing fraud while, according to the opposite party, he was taken with the consent of the petitioner and her husband as she is his adoptive mother. It would thus, appear that the manner of his removal from Bhagalpur from the custody of the natural parents is itself an issue and has to be decided in the proceeding. The fact. however, remains that for the said removal, the child would have remained in the custody of the petitioner and her husband being his natural parents, at Bhagalpur. Therefore, whether the practising fraud or deceit or with the consent of the petitioner, the removal took. place from Bhagalpur. The fact. however, remains that for the said removal, the child would have remained in the custody of the petitioner and her husband being his natural parents, at Bhagalpur. Therefore, whether the practising fraud or deceit or with the consent of the petitioner, the removal took. place from Bhagalpur. It can, therefore, be said that at least part of cause of action did arise at Bhagalpur. Mr. Sukumar Sinha in this connection tried to distinguish Sec. 20 of the Code of Civil Procedure, which according to him, in terms, applies to only suits and not to other proceedings like the instant one. I am afraid, the distinction is devoid of any substance. The term, cause of action which has been judicially denned as a bundle of facts is a comprehensive term not confined to only suits under the Code of Civil Procedure strictu sensu but would also cover other proceeding as well. I have no doubt in my mind that having regard to the language of Sec. 25, the act of removal does constitute a cause of action far making application and since on the facts of the case the removal has taken place from Bhagalpur the Court of District Judge at Bhagalpur undoubtedly has jurisdiction. 5. I now proceed to examine the contention of Mr. Sukumar Sinha that in view of the admitted actual residence of the child at Daltonganj, the Court of District Judge at Bhagalpur in view of the provisions of Sec. 9 has got no jurisdiction. Sub-sec. (1) of Sec. 9 of the Act, which deals with the under Sub-sections (2) and (3) reads as follows : "2. Court having jurisdiction to entertain application.-(I) If the application is with respect to guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides." The term "ordinarily resides" has not been defined in the Act. In the case of Bhola Nath V/s. Sharda Devi, AIR 1954 Patna 489 the child concerned, while living with his mother at Buxar, was away stealthily by the father to Banaras on the date of application. In the case of Bhola Nath V/s. Sharda Devi, AIR 1954 Patna 489 the child concerned, while living with his mother at Buxar, was away stealthily by the father to Banaras on the date of application. A Bench of this Court, while considering the aforesaid provisions stated as follows : "The expression the place where the minor ordinarily resides, in my opinion, means the place where the minor generally reside and would be expected to reside but for a special circumstance. In the present case, according to the case of the other, which has been accepted by the Court below from which I see no reason to differ, the child, during the short period of his life, lived mostly at Buxar within the jurisdiction of the District .Court within the jurisdiction of the District Court of Sahabad; and, if the child had not been stealthily taken away by the father, he was expected to reside with the mother at Buxar. In this view of the matter, the contention of the appellant in regard to the want of jurisdiction of the District Court of Shahabad must be repelled......" In the case of S. Abhoy Naidu and Ors. V/s. R. Sundra Rajan, AIR 1989 Madras 129 it was held as follows : "... ...even if the child was entrusted by the guardian with another person and the guardian demanded return of the child and the other person refused to hand over the child, the child would be deemed to have been removed from the custody so as to attract the provisions of Sec. 25 of Act." 6. Mr. Sukumar Sinha has placed reliance on a Bench decision of this Court in the case of Bibi Birjis Jahan V/s. Syed Jameel Ahsan and Ors., 1985 PLJR 788. The facts of the case are clearly distinguishable. In that case there was a dispute with respect to the guardianship of the boy between the husband and the wife. The boy had been taken by his farher i.e. the husband to Jamshedpur where he was residing for a considerable period. An argument was advanced on behalf of the wife that since the boy sometimes came during the holidays to Patna and stayed with his grandfather, he must be treated to be ordinarily resident of Patna also. The aforesaid contention was negatived by the Bench. An argument was advanced on behalf of the wife that since the boy sometimes came during the holidays to Patna and stayed with his grandfather, he must be treated to be ordinarily resident of Patna also. The aforesaid contention was negatived by the Bench. In the instant case, as noticed above, although the child has been living at Daltonganj since 1983 or 1985, as the case may be, his residence at Daltonganj is consequent to his removal from Bhagalpur, which according to the petitioner, was a result of a fraud played upon her. There can be no doubt that the jurisdiction of the Court is determined on the basis of the averments made in the plaint/application. Since in the present case allegations in regard to practice of fraud have been made reselting in removal of the child from the custody of the natural parents at Bhagalpur, as stated above, constitute a cause of action, in my opinion, the ratio of the judgment in the case of Bibi Birjis Jahan (supra) can be of no avail to the opposite party. Learned counsel next placed reliance on the judgment of this Court in the case of Lakshmi Devi V/s. Chandrakala Saraogi and Anr., AIR 1975 Patna 83. Therein while deciding the question of residence of the minor, the Court concerned had taken into consideration the situation of the property of the minor. Since, as noticed above, Sec. 9 of the Act is in two parts, one dealing with the guardianship of the person and the other dealing with the guardianship of his property, it was pointed out that the term ordinary residence of the minor has to be understood independent of the property of minor which may include family dwelling house etc. This situation obviously has not arisen in the present case and there is no such finding of the Court below based on the situation of the properties of the minor. In that view, the ratio of the aforesaid judgment has got no application. This situation obviously has not arisen in the present case and there is no such finding of the Court below based on the situation of the properties of the minor. In that view, the ratio of the aforesaid judgment has got no application. In my considered opinion, therefore, no only did the cause of action in terms of Sec. 25 of the Act arise at Bhagalpur because the removal took place from there, but also because the ordinary residence of the child concerned must be deemed to be at Bhagalpur, for the reason of that to, quote again the language of this Court in the case of Bhola Nath (Supra) if the child had not been stealthily taken away by the father he was expected to reside with the mother at Buxar. Making necessary substitution in the present case, had the child not been taken away by the opposite party from Bhagalpur, in the normal course, the child would have continued to reside with the mother at Bhagalpur. The case of adoption set up by the opposite party is yet to be adjudicated by a competent Court. In my opinion, therefore, on such facts it has to be held that the place of ordinary residence of the child named Amit @ Sharad in Bhagalpur for the purpose of a proceeding under the Act and, therefore, the Court of District Judge at Bhagalpur has got jurisdiction. 7. For the reasons stated above. I find no merit in Civil Revision No. 144 of 1989. 8. So far as the question of interim custody of the child under Sec. 12 of the Act, which is the subject matter of Civil Revision No. 401 of 1989, is concerned. I do not propose to decide the issue at this stage. As indicated above, the case was already at the stage of examination of witnesses and but for this intereving litigation in the Court the proceeding perhaps, by now would have been over. 1 would, therefore instead of deciding the issue, direct the District Judge, Bhagalpur, to decide the main case i.e. Guardianship case No. 49 of 1986 finally on merits in accordance with law within period of six months from the date of receipt of a copy of this order. 1 would, therefore instead of deciding the issue, direct the District Judge, Bhagalpur, to decide the main case i.e. Guardianship case No. 49 of 1986 finally on merits in accordance with law within period of six months from the date of receipt of a copy of this order. I may only point out that any delay in disposal of the case, specially as the facts in the instant case reveal, may frustrate the very purpose of such applications. 9. In the result. Civil Revision No. 144 of 1989 is dismissed but without any order as to costs and Civil Revision No. 401 of 1989 is disposed of in terms of the directions mentioned above.