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2010 DIGILAW 5085 (MAD)

Sandhiya v. D. Gunasekaran

2010-11-19

R.S.RAMANATHAN

body2010
Judgment :- 1. This Transfer Civil Miscellaneous Petition has been filed by the petitioner/wife. The respondent/husband filed a petition in G.O.P.No.136 of 2010 on the file of the Principal District Judge, Cuddalore, for appointing him as a guardian for all his three minor children and for their custody. It is stated in the said petition filed by the respondent/husband that the petitioner/wife herein had taken away the children with her without the knowledge of the respondent/husband and already the respondent/husband filed a petition in H.M.O.P.No.26 of 2009 on the file of the Subordinate Court, Panruti, for restitution of conjugal rights and that petition was ordered on 12.2.2010. Even thereafter, the wife/petitioner herein did not obey the order of the Court. Therefore, the petition in G.O.P.No.136 of 2010, was filed to appoint the respondent/husband as the guardian of the minors. 2. Mr. T.Dhayakumar, the learned counsel appearing for the petitioner submitted that as per the Guardian and Wards Act, 1890 the Court, where the majors are residing will have the jurisdiction and admittedly, the minors are residing with the mother at Villupuram, and therefore, the District Court, Cuddalore, has no jurisdiction. 3. The learned counsel appearing for the respondent submitted that as per the judgment reported in A.I.R. 1983 Madras 9 = (1982) 95 L.W. 391 in the matter of (Bhagyalakshmi and another v. Narayana Rao), this Court has interpreted the word ‘ordinary resides’ and held that ordinary residence of the minors was that of father’s place of residence and even though the minors are temporarily residing with the mother, it cannot be stated that they are not ordinarily residing with the father and hence, the District Court, Cuddalore, has got jurisdiction. 4. It is seen from the affidavit filed in this Transfer Petition that this petition was filed only on the ground of lack of jurisdiction in the District Court, Cuddalore. It is admitted that till 1.2.2009, the respondent/husband and petitioner/wife were residing together at Panruti and thereafter, the disputes arose between them and the wife left the matrimonial home with the minor children. It is also admitted that the children are residing at Villupuram, with their mother. In the above judgment referred to above, it has been held as follows: “The words ‘ordinary resides’ are in–capable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. It is also admitted that the children are residing at Villupuram, with their mother. In the above judgment referred to above, it has been held as follows: “The words ‘ordinary resides’ are in–capable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. The intention of not reverting back to the formal place of residence would normally be relevant. But in case of minors, it is difficult to impute any such intention to them. Furthermore, it has also to be borne in mind that 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 residence of the minors with their mother at her maternal home, though for some years had necessarily to be regarded as a temporary one or under compulsion or force of circumstances and could not therefore be regarded as their ordinary place or residence, which connotes the idea of a settled home which in the instant case was the father’s place of residence.” 5. In this case also, the minors are taken from the father’s place and therefore, as per judgment of this Court, the place of residence of the minors with the mother cannot be taken as a permanent residence. Therefore, as per Section 9 of the Guardian and Wards Act, 1890 it must be presumed that the minors ordinarily resided with the father at Panruti and therefore, the District Court, Cuddalore, has got jurisdiction. 6. Hence, I am not included to allow the Transfer Civil Miscellaneous Petition and it is dismissed accordingly. Consequently, connected Miscellaneous Petition are closed. No costs.