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2013 DIGILAW 1346 (MP)

Deedar Singh Dhillan v. Preetpal Singh Chadda

2013-11-11

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi, J.:- This revision is directed against the order dated 11-10-2012 passed in M.J.C. No. 2/2012 by the XIV Additional District Judge, Bhopal whereby the application submitted by the applicants under section 9 of the Guardians and Wards Act, 1890 (herein after referred to as 1890 Act') read with Order 7, Rule 11 of the Code of Civil Procedure has been dismissed. It is contended that the applicants are the maternal-grand parents of the minors, who are in their custody. The respondent has moved an application under section 25 of the 1890 Act seeking custody of the minor children against the applicants before the District Court at Bhopal. Such an application is not maintainable before the District Court in terms of the provisions of section 7(1)(g) of the Family Courts Act, 1984 (hereinafter referred to as 1984 Act') and since there is no scope of interference in respect of the custody of the minor children, as such application is also not maintainable in view of the provisions of section 9 of the 1890 Act, such an application of the respondent was liable to be dismissed but instead the application submitted by the applicants has been rejected, therefore, the revision is required to be filed. Brief facts giving rise to filing of this revision are that the respondent was married to the daughter of the applicants, namely Amardeep Kaur. Their marriage was solemnized on 26-11-2008. Out of the wedlock, late Amardeep Kaur gave birth to triplet sons on 31-3-2011. However, because of the post-delivery problem, she succumbed to death and the respondent was keeping the minor children with him. As contended in the application, the minors are residing at Nagpur and thus an application was made by the applicants for grant of custody of the minor children to them under the provisions of 1890 Act. However they were served with a notice of application submitted under section 25 of the 1890 Act filed by the respondent in the Court of District Judge, Bhopal. However they were served with a notice of application submitted under section 25 of the 1890 Act filed by the respondent in the Court of District Judge, Bhopal. Upon service of the notice, they submitted an objection with respect to the maintainability of the application in the District Court at Bhopal on the ground that the minor children were living at Nagpur and since the territorial jurisdiction of the Court where the minor children are ordinarily residing would be attracted in case of grant of custody of the minors, such an application submitted by the respondent before the District Court at Bhopal was not maintainable. However, this objection has been rejected in cryptic manner without looking to the law laid-down by the Apex Court in appropriate manner, therefore, this revision is required to be filed. 2. This revision was entertained, interim stay was granted and notice was served. Heard learned Counsel for the parties at length and perused the record. 3. Undisputedly the respondent is the natural father of the minors and is entitled to claim the custody of the minors. Section 25 of the 1890 Act specifically prescribes title of guardian to custody of ward. Provisions of section 25 are materially important, therefore, they are quoted hereinbelow: 25. Title of guardian to custody of ward. -- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it 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. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882). (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. The only restriction put by the 1890 Act in respect of jurisdiction of the Court is prescribed in section 9 of 1890 Act, which reads thus: 9. Court having jurisdiction to entertain application. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. The only restriction put by the 1890 Act in respect of jurisdiction of the Court is prescribed in section 9 of 1890 Act, which reads thus: 9. Court having jurisdiction to entertain application. -- (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. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. 4. It is contended by learned Counsel for the applicants that in the case of Abraham C. Karimpanal and others vs. Nil, AIR 2004 Karnataka 321, the Division Bench of Karnataka High Court has taken note of the word 'ordinarily resides' and in paragraphs 11, 12, 13 and 14 interpretation has been done, which reads thus: 11. For our purpose, sub-section (1) of section 9 is material. As per sub-section (1) of section 9, where the application is in respect to the guardianship of a person of the minor, it is to be filed at the Court under whose territorial jurisdiction the minor ordinarily resides. In order to give the Court jurisdiction for the purpose of appointment of guardian under sub-section (1) of section 9 and for passing orders under section 25 of the Act, the minor must ordinarily be resident within the local limits of the Court's jurisdiction. If the minor does not ordinarily reside within the territorial jurisdiction of the District Court concerned, such District Court will have no jurisdiction to proceed under the Act. If the minor does not ordinarily reside within the territorial jurisdiction of the District Court concerned, such District Court will have no jurisdiction to proceed under the Act. It is true, the mere fact that a minor is found actually residing at a place at a time when an application for guardianship is made under section 7 of the Act does not determine the jurisdiction of the Court. It must be proved whether the minor ordinarily resides as laid down in sub-section (1) of section 9. It is the ordinary place of residence of the minor which determines the jurisdiction of the particular District Court to entertain application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the petition under section 7 of the Act. The words "ordinarily resident" have a different meaning than 'residence at the time of the application'. Both may be identical or may be different. That would depend on the facts of each particular case. To interpret the words "where the minor ordinarily resides" to mean "where the minor actually resides at the time of the application" may in some cases amount to rendering nugatory of the provisions of the Act. We say this because, if persons who have absolutely no right may remove a minor forcibly from his ordinary place of residence and keep him at a distant place where the application is made, objection can be taken that the application is not entertainable. The residence of a child does not and cannot depend upon the machinations of recalcitrant persons who apply for guardianship and/or custody of a minor. The latter residence, whether for a long period or for a short period, will also not make the residence of the minor the ordinary place of residence. All relevant attendant circumstances, the intention with which the minor had been removed, the person with whom the minor has been living and other relevant factors have to be taken into consideration. The words 'ordinarily resides' obviously mean more than temporary residence, even though such residence is spread over a long period. 12. All relevant attendant circumstances, the intention with which the minor had been removed, the person with whom the minor has been living and other relevant factors have to be taken into consideration. The words 'ordinarily resides' obviously mean more than temporary residence, even though such residence is spread over a long period. 12. The term 'residence' is an elastic word of which an exhaustive definition cannot be given; it is differently construed according to the purpose for which enquiry is made into the meaning of the term; the sense in which it should be used is controlled by reference to the object. 'Residence' means dwelling in a place for some continuous time. The words 'ordinarily resides' in sub-section (1) of section 9 of the Act mean more than a temporary residence even though the period of such temporary residence may be considerable. Residence may be transitory or permanent. The former is residence simpliciter or casual residence. The latter connotes the place where for the practical purposes a person is expected to be ordinarily found. That is the place where he is said to ordinarily reside. Generally speaking, residence is a matter of fact, and not a matter of presumption. 13. The words 'ordinarily resides' fell for interpretation of the Apex Court and High Courts in large number of cases under various statutes. In Smt. Jeewanti Pandey's case, AIR 1982 SC 3 (supra), the Supreme Court, dealing with a situation where jurisdiction of a Court was based on 'the ground of residence' has observed in paragraph-12 as under: 12. In order to give jurisdiction on the ground of 'residence', something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the Court in which the respondent is sued, is his natural forum. The word 'reside' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent character. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time', and words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides. 14. Having construed the word 'residence' in paragraph-12, the Apex Court proceeded to hold further in paragraph-13 thus: It is plain in the context of Clause (ii) of section 19 of the Hindu Marriage Act, 1955 that the word 'resides' must mean the actual place of residence and not a legal or constructive residence, it certainly does not connote the place of origin. The word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora had jurisdiction or not. 5. Relying on the case of Dr. It follows that it was the actual residence of the appellant at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora had jurisdiction or not. 5. Relying on the case of Dr. Vinay Samuel Arawattigi vs. Principal Judge, Family Court, Kanpur Nagar and another, AIR 2007 Allahabad 13, again it is contended that the word 'ordinarily resides' has been interpreted and it has been held that in view of the specific pleadings it has to be held that the Court where at the time of commencement of the proceedings the minor was residing, will have the jurisdiction to entertain such an application. In the case of Himanshu Mahajan vs. Rashu Mahajan and others, AIR 2008 Himachal Pradesh 38, referring to certain paragraphs of the report it is contended by learned Counsel for the applicants that in view of the specific averments made in the application submitted by the respondent it is clear that the minors were not residing at Bhopal on the date when application was filed and the proceedings were commenced for seeking their custody, therefore, as per the provisions of section 9 of the 1890 Act, such an application would not be maintainable. Referring to the law laid-down by the Apex Court in the case of Smt. Anjali Kapoor vs. Rajiv Baijal, 2010(1) MPLJ (S.C.) 60 : AIR 2009 SC 2821 , it is contended by learned Counsel for the applicants that since the minors were residing at Nagpur along with the applicants, any application seeking their guardianship should have been filed before the appropriate Court at Nagpur and not otherwise. Further placing reliance in the case of Ruchi Majoo vs. Sanjeev Majoo, 2011(3) MPLJ 642, learned Counsel for the applicants would contend that the ordinary residence of the minors was at Nagpur and such an application of the respondent was not maintainable before the Court at Bhopal and these aspects if are taken into consideration, the order passed by the Court below is liable to be set aside. Yet another ground is raised by learned Counsel for the applicants that Parliament has enacted the Family Courts Act, 1984 wherein specific provisions are made for exclusion of jurisdiction in Chapter III of the 1984 Act. Yet another ground is raised by learned Counsel for the applicants that Parliament has enacted the Family Courts Act, 1984 wherein specific provisions are made for exclusion of jurisdiction in Chapter III of the 1984 Act. It is contended that as per section 7 of the 1984 Act, the application submitted by the respondent before the District Court was not maintainable as a suit or proceeding in relation to guardianship of the person or the custody or access to, any minor, was required to be filed only before the Family Court at Bhopal. The 1984 Act being special Act, will have the overriding effect over the general law of jurisdiction of the Court and even otherwise the same being a subsequent enactment of Parliament with specific provisions, the same would have the overriding effect on the provisions of 1890 Act. It is, thus, contended that at any rate the application submitted by the respondent before the District Court at Bhopal was not maintainable and was thus liable to be rejected. However, this aspect is also not considered by the Court below and the application submitted by the applicants has been rejected erroneously. 6. Per contra it is contended by learned Counsel appearing for the respondent that if an application is submitted raising objection for dismissal of the application filed by the respondent, it has to be treated to be one under Order 7 Rule 11 of the Code of Civil Procedure. Even if certain provisions are quoted, since the provisions of Code of Civil Procedure are applicable in the proceedings under the 1890 Act, the application of the applicants was required to be considered under the provisions of the Code of Civil Procedure only. It was rightly considered by the Court that the respondent was the natural father, as was demonstrated by him in his application, illegally the applicants have taken the minors mischievously with an intention to retain them in their custody to Nagpur and, therefore, it has to be held that the ordinary residence of the minors was at Bhopal where the application has rightly been made by the respondent for grant of custody of minors. It was not necessary for the respondent, natural guardian, to rush to the Courts at Nagpur to seek custody of his sons. It was not necessary for the respondent, natural guardian, to rush to the Courts at Nagpur to seek custody of his sons. The applicants are aged persons and since the paramount consideration is the welfare of the minors, it is required to be seen by the Court at Bhopal whether the applicants would be in a position to look after and take care of minors in adequate manner or not. This being so, it is contended that hard and fast interpretation of the rules is not permissible. Further placing reliance in the case of Amal Saha vs. Smt. Basana Saha, AIR 1988 Gauhati 22, it is contended by learned Counsel for the respondent that if illegally the minors are removed from the ordinary residence, it cannot be said that Bhopal Court will have no jurisdiction to entertain application for restoration of custody of minors to natural guardian. It is contended that similar law is reiterated by the Orissa High Court in the case of Konduparthi Venkateswarlu and others vs. Ramavarapu Viroja Nandan and others, AIR 1989 Orissa 151, wherein considering such aspects the Court has held that the ordinary residence of minors would be at the place where their legal guardian is residing legally. It is contended that one son is already with the respondent and, thus, removal of two sons from his custody illegally by the applicants has compelled him to move the application for grant of custody of his minor sons. It is contended that since application submitted by the applicants for dismissal of the application is required to be considered under Order 7, Rule 11 of the Code of Civil Procedure, only the pleadings made in the application submitted by the respondent before the Bhopal Court are required to be seen. Further, no defence has been put by the applicants by filing any reply to such an application and, therefore, their application for dismissal of the application of the respondent was rightly rejected by the Court below. Further, no defence has been put by the applicants by filing any reply to such an application and, therefore, their application for dismissal of the application of the respondent was rightly rejected by the Court below. Taking this Court to the pleadings made in the application under section 25 of the 1890 Act, learned Counsel for the respondent has contended that these facts have not been denied by filing any reply by the applicants before the Court below and, therefore, if such pleadings of the respondent are accepted to be correct prima facie and the Court has rejected the application of the applicants for dismissal of the application of the respondent, no wrong is committed by the Court below. It is lastly contended that in case it is held that application under section 25 of the 1890 Act was not maintainable in District Court at Bhopal, the same can be transferred to the Family Court having jurisdiction to try such application in view of provisions of sub-section (3) of section 9 of 1890 Act. 7. After considering the rival submissions of learned Counsel for the parties, one thing is clear that under 1984 Act the District Court at Bhopal was having no jurisdiction to try the application submitted by the respondent under section 25 of 1890 Act. Such an application ought to have been filed before the Family Court at Bhopal if at all the respondent was of the view that the said Court would have the jurisdiction to try the application. There is a clear bar of jurisdiction created under section 7 of the 1984 Act, which prescribes that if a Family Court is constituted under the Act aforesaid in a particular place, the Family Court only will exercise the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation. Explanation (g) of section 7 of 1984 Act specifically contains that a suit or proceeding in relation to the guardianship of the person or custody of, access to, any minor would be tried by a Family Court if constituted. Explanation (g) of section 7 of 1984 Act specifically contains that a suit or proceeding in relation to the guardianship of the person or custody of, access to, any minor would be tried by a Family Court if constituted. Therefore, if a bar is created under the Act, with respect to the jurisdiction, and specific cases are conferred within the jurisdiction of the Family Court, the District Court at Bhopal was having no jurisdiction to entertain the application submitted by the respondent under section 25 of the 1890 Act. 8. Now the question is whether the Court at Bhopal will have the jurisdiction to entertain any such application made under section 25 of the 1890 Act or not. The provisions of section 9 of the 1890 Act are clear. There is no doubt that the ordinary residence of the minors would be at Bhopal where their natural guardian, the father, was residing. The objection with respect to maintainability of such an application at Bhopal Court raised by the applicants is based on the interpretation of the words "ordinarily resides". In fact the entire submission made by learned Counsel for the applicants is that since the minors are residing at Nagpur along with the applicants, an application was required to be made for grant of their custody only and only in the Court at Nagpur and not otherwise. For the aforesaid purpose, analysis done by the Division Bench of the Karnataka High Court has been shown in respect of interpretation of the words "ordinarily resides". Had it not been a case that the minors are taken away by the applicants even with the consent of the respondent, they would have resided only and only with the respondent at Bhopal. If for any reason they have been shifted temporarily, even on the basis of the consent, as alleged by the applicants, it cannot be said that they be treated as ordinarily residing at the place where the applicants are residing. Such an interpretation would be against the interpretation done by the Karnataka High Court in the case of Abraham C. Karimpanal (supra) and will not be proper in the context that the Court at Nagpur alone would have jurisdiction to entertain an application under section 25 of the 1890 Act. Such an interpretation would be against the interpretation done by the Karnataka High Court in the case of Abraham C. Karimpanal (supra) and will not be proper in the context that the Court at Nagpur alone would have jurisdiction to entertain an application under section 25 of the 1890 Act. If the law laid-down by the Apex Court in the case of Ruchi Majoo (supra) is examined, it will be clear that such a question need to be decided only after recording the evidence whether the minors were taken away by the applicants with the consent of the respondent or not. The objection raised by the applicants with respect to maintainability of the proceedings at Bhopal Court cannot be looked into without specific reply of the application under section 25 of the 1890 Act. If such an objection is to be considered at preliminary stage in terms of section 9 of the 1890 Act, the same has to be decided in accordance to the provisions of Order 7, Rule 11 of the Code of Civil Procedure. It is trite that while deciding such an application under Order 7, Rule 11 of the Code of Civil Procedure, only the pleadings in the plaint or application are required to be seen. Specifically when there is no such denial of such specific pleading, it cannot be said that such allegations, as have been specifically made in the application under section 25 of the 1890 Act by the respondent, are false, frivolous, malicious or vexatious. Therefore, the submission made by learned Counsel for the applicants that only Nagpur Court would have jurisdiction to entertain application under section 25 of the 1890 Act cannot be accepted. 9. Now as has already been held, if there is a bar created by the Act with respect to the exercise of jurisdiction by particular Courts in particular case and with respect to grant of particular relief, at least the District Court at Bhopal will have no jurisdiction to entertain the application under section 25 of the 1890 Act, filed by the respondent. If that would have been examined by the Court below in appropriate manner, in fact the Court should have acted in accordance to the provisions of section 9(3) of the 1890 Act read with Order 7, Rule 10 of the Code of Civil Procedure and the application should have been returned to the respondent for its presentation before the Family Court at Bhopal. Having failed to do so, at least the District Court, Bhopal cannot be allowed to continue with the proceedings on application under section 25 of the 1890 Act made by the respondent. 10. It is pointed out by the learned Counsel for the respondent that since both the parties are represented before this Court looking to such a claim made by the respondent in his application under section 25 of the 1890 Act, it would be proper for this Court to exercise the power and to direct the District Court to return the application of the respondent to him for its presentation before the Family Court at Bhopal and further to direct both the parties represented before this Court to remain present before the said Family Court on the date when the same is required to be presented by the respondent. It is seen that the provisions of Order 7, Rule 10 of the Code of Civil Procedure are relating to return of the plaint but not fixing a date of appearance before, the Court having jurisdiction to try such a claim. However, Order 7, Rule 10-A of the Code of Civil Procedure confers such power on the Court, upon an application to be made by the plaintiff before the trial Court, for return of the plaint and to fix a date of appearance before the Court of competent jurisdiction for the purpose of presentation of claim. Therefore, it would be appropriate for this Court to fix a date of appearance before the Family Court, Bhopal by the parties for the purposes of presentation of the application of the respondent under section 25 of the 1890 Act. 11. In view of this, it is directed that the District Court, Bhopal will return the application under section 25 of the 1890 Act filed by the respondent bearing M.J.C. No. 2/2012 to the respondent for its presentation before the Family Court on 2nd December, 2013. 11. In view of this, it is directed that the District Court, Bhopal will return the application under section 25 of the 1890 Act filed by the respondent bearing M.J.C. No. 2/2012 to the respondent for its presentation before the Family Court on 2nd December, 2013. On this date, the applicants and the respondent herein will remain present before the Family Court, Bhopal. The applicants would be at liberty to file their written reply to the application of the respondent raising all such grounds which they require to raise. The Family Court, Bhopal will decide such application in the manner prescribed under the 1890 Act expeditiously. The revision is disposed of finally with the aforesaid direction. However, there shall be no order as to costs of this proceeding.