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Madhya Pradesh High Court · body

2012 DIGILAW 22 (MP)

Adesh Gupta v. Sadhana Gupta

2012-01-05

ALOK ARADHE

body2012
ORDER 1. In this writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the validity of the order dated 5.5.2011 passed by the trial Court by which the application preferred by the petitioners under Order 7, Rule 11 of the Code of Civil Procedure has been rejected. In order to appreciate the petitioner’s challenge to the impugned order, few facts need mention, which are stated infra. 2. The marriage of petitioner No. 1 and the respondent was solemnised on 28.6.1998. From the wedlock, a son and a daughter, respectively were born. The respondent filed a petition under section 9 of the Guardian and Wards Act, 1890 (hereinafter referred to as ‘the Act’) at Chhatarpur on 18.2.2011 for appointment of respondent as guardian of the minor children and for obtaining custody of the children. The petitioners on receipt of notice of the proceeding, filed an application under Order 7, Rule 11 of the Code of Civil Procedure (hereinafter referred to ‘CPC’) on the ground that the children are not residing within the territorial jurisdiction of the Court at Chhatarpur and are studying in boarding school in Chandigarh, therefore, the Court has no territorial jurisdiction to deal with the petition. The respondent filed reply to the aforesaid application and opposed the prayer made in the application. It was averred in the reply that the children were taken out from Chhatarpur without her consent. 3. The trial Court vide order dated 5.5.2011 inter alia held that respondent-wife is residing at Chhatarpur and in case there would not have been dispute between petitioner No. 1 and the respondent, the children would have remained at Chhatarpur and, therefore, the children shall be deemed to be the ordinary residents of Chhatarpur and the Court therefore has the territorial jurisdiction to deal with the petition. 4. Shri Ashok Lalwani, learned counsel for the petitioner submitted that the averments made in the petition filed by respondent No. 1 clearly show that children are not residing within the territorial jurisdiction of the Court at Chhatarpur, and the children are living in a boarding school at Chandigarh and are prosecuting their studies at Chandigarh and, therefore, the Court has no territorial jurisdiction to try the petition. It was further submitted that either the Court at Gwalior or the Court at Chandigarh has territorial jurisdiction to deal with the petition and, therefore, the plaint should be returned for presentation to the Court of competent jurisdiction. In support of his submission, learned counsel for the petitioners has placed reliance on the decisions in the cases of Harihar Prasad Jaiswal v. Suresh Jaiswal and others, AIR 1978 AP 13 , Shah Harishchand Ratanchand v. Virbbal and others, AIR 1975 Guj. 150 , Amal Saha v. Smt. Basana Saha, AIR 1988 Gauhati 22 and decision of the Supreme Court in Ruchi Majoo v. Sanjee Majoo, ¼2011½ 6 SCC 479. 5. On the other hand, leanred counsel for the respondent while opposing the submissions made by learned counsel for the petitioners submitted that infact against the impugned order, the petitioners ought to have filed a civil revision and the writ petititon against the impugned order is not maintainable. It was further submitted that the order passed by the trial Court is perferctly just and legal. It was also submitted that the respondent was deprived of the custody of the minor children by shifting them from the territorial limits of the Court at Chhattarput without her consent, therefore, the Court at Chhatarpur has territorial jurisdiction to deal with the petition. In support of his submissions, learned counsel for the respondent has placed reliance on Vinayak Rao Jadhav and others v. Shweta Vinayak Rao Jadhav, 1997 (1) MPLJ 27 and Johra Bi and others v. Jageshwar and others, 2010 (I) MPLJ 98 . 6. I have considered the submissions made on both sides. Section 9 (1) of the Act provides that application with regard to guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor “ordinarily resides.” The residence is a mere physical fact. It means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. When this physical fact is accompanied by the required state of mind, neither its charactor nor its duration is in any way material See : Kedar Pandey v. Narain Bikram Sah, AIR 1966 SC 160 . In Yogeshj Bhardwaj v. State of U.P. and others, (1990) 3 SCC 355 , it has been held that residence is a physical fact and no volition is needed to establish it. In Yogeshj Bhardwaj v. State of U.P. and others, (1990) 3 SCC 355 , it has been held that residence is a physical fact and no volition is needed to establish it. Any period of physical presence, however short, may constitute residence provided it is not transitory, fleeing or casual. It has further been held that residence must be voluntary. 7. It is well settled in law that while dealing with the application under Order 7, Rule 11 of the Civil Procedure Code, only the averments made in the plaint alone are to be seen See : Saleem Bhai and others v. State of Maharashtra and others 2003 (1) Vidhi Bhaswar 67 = (2003) 1 SCC 557 . In the case of Ruchi Majoo, supra, the Supreme Court while considering section 9 (1) of the Act has held that solitary test for determining the jurisdiction of the Court under section 9 is ordinary residence of the minor. The expression used in section 9 (1) of the Act is “where the minor ordinarily resides.” Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be mixed question of law and fact. It has further been held that unless jurisdictional facts are admitted, it can never be pure question of law capable of being answered without an enquiry into the factual aspects of the controversy. 8. Thus, from the aforesaid enunciation of law by the Supreme Court, it is apparent that the question whether the minor is ordinarily residing at a given place is primarily a question of fact which cannot be decided without an enquiry into the factual aspects. Besides that it is relevant to mention here that residence by volition or by compulsion within territorial jurisdiction of the Court cannot be treated as place of ordinary residence. Similarly, the words “ordinarily resides” are not identical and cannot have the same meaning as residence at the time of filing of the application for grant of custody. Besides that it is relevant to mention here that residence by volition or by compulsion within territorial jurisdiction of the Court cannot be treated as place of ordinary residence. Similarly, the words “ordinarily resides” are not identical and cannot have the same meaning as residence at the time of filing of the application for grant of custody. The purpose of using the expressions “where the minor ordinarily resides” is probably to avoid the mischief that minor may be forcibly removed to a distant place, but still the application for minor’s custody could be filed within the jurisdiction of the Court from whose jurisdiction he had been removed or in other words where the minor would have continued to remain but for his removal. Similar, view has been taken in Konduparthi Venkateshwarlu and others v. Ramavarapu Viroja Nandan and others, AIR 1989 Orissa 151. If the averments made by the respondent in paragraphs, 4, 11, 15 and 16 of the petition filed by her are seen, it is apparent, that the children have been removed from Chhatarpur without her consent. The jurisdictional facts are not admitted and the petition, contains the averment that the Court at Chhatarpur has the territorial jurisdiction to try the petition. The question whether the Court at Chhatarpur has territorial jurisdiction to try the petition is a mixed question of law and fact, as the same is dependent on the question whether the minors are residing within the territorial jurisdiction of the Court. The aforsaid question cannot be determined without holding enquiry intot the factual aspects of the controversy. The scope of scrutiny at the stage of consideration of an application under Order 7, Rule 11 of Civil Procedure Code is confined only to the averments made in the petition. Thus, the question whether the Court has territorial jurisdiction being mixed question of law and fact cannot be decided by way of an application under Order 7, Rule 11 of Civil Procedure Code. 9. For the aforementioned reasons, the order dated 5.5.2011 passed by the trial Court is hereby quashed. In case the petitioners take an objection in the written statement with regard to maintainability of the petition filed by the respondent under section 9 of the Act on the ground of lack of territorial jurisdiction, the trial Court shall frame an issue in this regard and shall decide the same in accordance with law. 10. In case the petitioners take an objection in the written statement with regard to maintainability of the petition filed by the respondent under section 9 of the Act on the ground of lack of territorial jurisdiction, the trial Court shall frame an issue in this regard and shall decide the same in accordance with law. 10. With the aforesaid directions, the writ petition stands disposed of.