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2008 DIGILAW 328 (JK)

Mukhtar Ahmed Bhat v. Nighat Parveen

2008-09-03

MOHAMMAD YAQOOB MIR

body2008
1. Ordinary residence of the minor so as to confer jurisdiction under the Guardian and Wards Act (for short the Act) is the core question to be addressed for which precise factual background is to be noticed. 2. Parties were married to each other from the wedlock one child Zahid Ahmed Lone has born. Marital relationship came to an end due to divorce regarding which an agreement is admitted to have been drawn and signed by the parties. Pursuant to the agreement, ward has to remain under the care and custody of mother till he attains age of 8 years. It further stipulates that, if father wishes, he can take the minor to his house once in a month. Ward has been taken by the petitioner (father) who retained his custody and is alleged to have admitted him in the School at Anantnag. Petitioner (father) is the resident of Anantnag whereas, the respondent (mother) is the resident of District Pulwama, When the ward remained with the father, respondent filed petition under Section 25 and also an application under Section 12 of the Act before the court of District Judge, Pulwama. 3. The petition has been resisted by the petitioner (non-applicant therein) on two counts first that the court has no jurisdiction to entertain the petition, second that the petition is not maintainable as having not been framed in accordance with section 10 (2) & (3) of the Act. Learned District Judge has decided both these issues in favour of the respondent (applicant therein). Aggrieved thereof instant revision petition has been filed. 4. Section 25 of the Act is applicable when the ward leaves or is removed from the custody of the Guardian. Question as to whether mother is the guardian within the meaning of Section 25 of the Act, is to be answered in affirmative, in view of the clear meaning given to the word `guardian under Section 4 (2) of the Act which reads as under:- `Guardian means a person having the care of person of a minor or of his property, or of both his person and property 5. The agreement as admitted evidences the fact of divorce, also indicate that the child will remain in the custody and care of mother; when it is so, she is the guardian within the meaning of Section 4 (2) of the Act. The agreement as admitted evidences the fact of divorce, also indicate that the child will remain in the custody and care of mother; when it is so, she is the guardian within the meaning of Section 4 (2) of the Act. When the child is removed from her custody, she has every right to file application under Section 25 of the Act. In addition, court has to frame opinion about the welfare of the ward. There can be no substitute to the cozy lap of a mother, however, other questions relating to welfare of the ward have to be looked into by the trial court after recording the evidence. 6. Whether the Ordinary residence of the ward is at Anantnag where his father resides and has taken him or is at Pulwama, where his mother resides. If present residence with father is treated as ordinary residence of the minor, same shall have absurd impact. Child can be removed from one place to another place, that will not change the position of his ordinary residence. Ordinary residence of the minor has to be decided on the facts and features of each case. Ordinary residence has the meaning i.e., where the minor is expected to reside unless there are special circumstances to the contrary. 7. Agreement apart even otherwise mother has right of hizanat as guaranteed under personal law to which the minor is subject. In case of male it is up to 7 years in case of female it is up to the attainment of puberty, in that eventuality mother has the custody and care of the person of minor, so minor is expected to reside with the mother. Under such situation ordinary residence has to be taken where the mother of the ward resides. 8. The expression `Where the minor ordinarily resides as embodied in Section 9 of the Act has legislative intent so as to avoid conflict vis-a-vis residence of the minor and to clearly indicate the jurisdiction of the District Court to entertain the application vis-a-vis the guardianship or petition for return of the ward to the custody of his guardian. The object is to safeguard the interests of the ward. The object is to safeguard the interests of the ward. Ordinary residence does not take into its sweep, custody of the ward taken, removed or stealthily taken, if ordinary residence is assigned the meaning of residence at the time of filing of the application irrespective of its nature then uncertainty will be beyond proportions so as to complicate the jurisdiction of the district Court, in other words when the minor is in the care and custody of a particular person in the capacity of guardian/appointed guardian, or natural guardian the ordinary residence is to be treated with the person who by law has the custody and care of the ward, so the jurisdiction for entertaining the application for guardianship/return of the custody of the ward lies with the District Court, where the person, in whose custody and care ward remains by law, dependent upon the features of the particular case. 9. The meaning assigned to the ordinary residence of the ward has only one meaning i.e., the residence of the person in whose care and custody ward is expected to have remained, removal thereof from one District to another District will not oust the jurisdiction of the district Court where the person in whose custody and care ward is expected to reside. 10. In the instant case, admittedly both pursuant to agreement and in view of the right of Hizanat ward is under the care and custody of the mother, who lives within the territorial jurisdiction of district Court Pulwama. It hardly matters that at the time of filing the application ward has been in the custody of the father (natural guardian) because father admittedly has been given right pursuant to agreement to take ward once a month, if, thereafter, wards is retained by the father, mother has right to file the application for return of the custody, which will definitely lie in the district Court, Pulwama. The contention questioning jurisdiction of district Court Pulwama is to be answered in negative as has been done by the trial court. 11. In this context, learned trial court has rightly placed reliance on the judgment reported in AIR 1989 Orrisa 151 and AIR 1978 AP page 13. 12. The question no. The contention questioning jurisdiction of district Court Pulwama is to be answered in negative as has been done by the trial court. 11. In this context, learned trial court has rightly placed reliance on the judgment reported in AIR 1989 Orrisa 151 and AIR 1978 AP page 13. 12. The question no. 2 is as to whether Under Section 25 of the Act, petition was required to be prepared as per format prescribed under Section 10 of the Act the same has been correctly appreciated by the trial court as the application has not been filed under Section 7 of the Act which requires the petition to be prepared in accordance with section 10. When the petition is under Section 25, such format is not required to be adopted, so there is no question of non-compliance of Section 10 of the Act. 13. The only conclusion which can be drawn is that the trial court has passed well reasoned order, does not call for any interference, as such, is up held. 14. It shall be open for the petitioner to agitate before the court below the questions relating to real welfare of the ward; as is the basic object of the Act. 15. Petition dismissed. Copy of the order be sent to trial court for information.