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2011 DIGILAW 1135 (RAJ)

Hariom v. Sunil

2011-05-25

VINEET KOTHARI

body2011
Hon'ble KOTHARI, J.—This revision petition is directed against the order dtd. 30.11.2010 whereby the learned Court below rejected the application of the defendant-petitioner under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. and Section 9 of the Guardians and Wards Act, 1890 in which the present petitioner defendant-inaternal grandfather claimed that since the minor Prateek was ordinarily residing with him at Gurgaon (Haryana), the application filed by father Sunil under Section 9 of the Guardians and Wards Act, 1989 for claiming the custody of the said minor could not lie at Nohar within the State of Rajasthan. 2. The learned counsel for the petitioner-defendant Mr. Pankaj Sharma, relying upon the judgment of Gujarat High Court in the case of Shah Harichand Ratanchand vs. Virbhal reported in AIR 1975 Gujarat 150 and Smt. Laxmi Devi vs. Kunwar Pal reported in AIR 2006 Allahabad 281 submitted that in view of language of Section 9(1) of the said Act, the application would lie to the Dist. Judge in whose jurisdiction the minor ordinarily resides. He submitted that marriage between the applicant Sunil and his wife Tamanna, daughter of the present petitioner Hariom took place on 13.5.2006 at Gurgaon and the minor Prateek was born on 12.9.2007 at Gurgaon. The said lady Tamana, wife of the present applicant expired on 6.6.2009 when minor Prateek was about 2 year and few months of age. He submitted that an FIR was lodged against the applicant-husband since death of Tamanna took place in mysterious circumstances. However, the investigating officer gave negative final report in the matter and upon protest petition, the matter is still under investigation and after the death of mother of minor, Smt. Tamanna, the custody of the child is with the present petitioner-maternal grandfather and therefore, the application under Section 9 of the said Act could be brought only at Gurgaon where the child is ordinarily residing. 3. On the other hand, Mr. 3. On the other hand, Mr. Suresh Shrimali, learned counsel for the respondent father Sunil submitted that at the stage of Order 7 Rule 11 CPC, the averments in the application/plaint only have to be seen and since admittedly, the residence of child in question prior to the death of wife of the applicant on 6.6.2009 was at Nohar within the State of Rajasthan only, therefore, upon removal of his custody after the death of Smt. Tamanna on 6.6.2009, it cannot be said that ordinary place of residence of minor is at Guragon within the State of Haryana and the cause of action for claiming custody has arisen only because the present petitioner maternal grandfather took away the custody of the child in question forcibly. He submitted that the application under Order 7 Rule 11 CPC has rightly been rejected by the learned court below on the basis of averments made in the plaint/application. Therefore, no interference is called for in the present revision petition. He relied upon the judgment of this Court in the case of Wazid Ali vs. Smt. Rubina Bano and Ors. reported in AIR 2008 Rajasthan 49 and the decision of Punjab and Haryana High Court reported in the case of 1981 All India Hindu Law Reporter 34 Tikka Prittam Singh Sodhi vs. S. Kashmir Singh. 4. Having heard the learned counsels, this Court is of the opinion that there is no force in the present revision petition field by petitioner-defendant. The coordinate Bench of this Court in the case of Wazid Ali (supra) held that where the child was in the custody of grandmother because the mother of the child got remarried, the place of residence of grandmother cannot be said to be ordinary residence of the child and despite re-marriage, the mother could claim custody being natural guardian. The expression "the place where minor ordinarily resides" employed in Section 9(1) of the Act have to be construed to mean the place where minor generally resides and would be expected to reside, but for the special circumstances. This Court in para 19 of the aforesaid judgment held that child was in custody of the maternal grandmother because of compelling circumstances. This Court in para 19 of the aforesaid judgment held that child was in custody of the maternal grandmother because of compelling circumstances. However, for the welfare of the child, the custody of the child can be taken by the person who is interested in the welfare of the child and therefore, the Court held that place of ordinary residence of minor means residence of his natural guardian and thus, it was held that the Dist. Court Jhunjhunu from where the child was taken by the mother from the custody of natural guardian has jurisdiction to entertain the application as Jhunjhunu is the ordinary residence of the child. 5. Similarly, Punjab and Haryana High Court in the case of Tikka Prittam Singh Sodhi vs. S. Kashmir Singh (supra) has held that it is no ground to deprive the father of custody of the minor even where he had re-married and it was alleged against him that the step-mother would not keep the child properly. In para 8 of the judgment, the Court held that minor son was with the father in Dist. Gurdaspur within the State of Punjab where the grand-parents of the child came to attend the Kirya ceremony and took her away. In these circumstances the Court held that Court at Gurdaspur alone has jurisdiction to try the suit for giving custody to the father. 6. As against this, Allahabad High Court in the case of Smt. Laxmi Devi vs. Kunwar Pal reported in AIR 2006 Allahabad 281 held that before the Court decides the question of jurisdiction as to where the child ordinarily resides, it is necessary that there should have some evidence in the shape of affidavits or documents to be able to come to some conclusion and in these circumstances, the matter was remanded back to the trial Court for deciding the question upon evidence. 7. In the case of Shah Harichand Ratanchand vs. Virbhal (supra), the Division Bench of Gujarat High Court in para 3 held as under:- "3. Section 25(1), however, has categorically used the expression "the Court" which has been statutorily defined in Section 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Section 25(1), however, has categorically used the expression "the Court" which has been statutorily defined in Section 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under Section 9(1) if the application is with respect to the 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. Therefore, the legislature has statutorily defined the Court for the purpose of Section 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody. If the application is made immediately after the removal from the father's custody, the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly, if there are two places where it could be held that the minor was ordinarily residing the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumption, legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor. This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances." 8. With respect to the judgments relied upon by the learned counsel for the petitioner, they are of little help to him inasmuch as Gujarat High Court has rightly held that it is the ordinary place of residence prior to removal of custody of the father, that would decide the place of ordinary residence of minor rather than the present place of residence, which might be temporary or under the compelling circumstances like remarriage or pendency of criminal proceedings pending against the applicant like in the present case. 9. 9. It is not the place where the minor is presently residing when application seeking custody is filed under Section 9 of the Act, which would be determinative of deciding the jurisdiction of the Court under Section 9 of the said Act, but it is factually as well as constructive custody prior to arising of cause of action for claiming such custody again, which could decide the jurisdiction of the Court under Section 9 of the Act. Merely because in the circumstances that upon death of mother of the child, the child was removed from the custody of the father who is the natural guardian of the minor and was taken away by the maternal grandfather and was therefore, living away at different place at Gurgaon, that would not take away the jurisdiction of the Court at Nohar, where the father-natural guardian ordinarily resides and prior to death of the mother of the child, the child with his mother also used to live. 10. In these circumstances, in the present case after having filed the application under Section 9 of the Act for claiming custody of the child at Nohar, even though the child was removed from custody and was taken away by maternal grandfather to Gurgaon, Court at Nohar cannot be said to be lacking jurisdiction in the matter and therefore, the application under Order 11 Rule 7 CPC filed by maternal grandfather was rightly rejected by the learned Court below. 9. Accordingly, this Court finds no force in the present revision petition and the same is accordingly dismissed. No order as to costs.