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2013 DIGILAW 1920 (RAJ)

Madhav Singh v. Basanti

2013-11-06

ARUN BHANSALI

body2013
JUDGMENT 1. - This revision petition under Section 115 CPC is directed against the order passed by the trial court dated 6.3.2009, whereby the application filed by the petitioners under Order 7, Rule 10 CPC has been rejected. 2. Brief facts of the case may be noticed thus : the respondent- Smt. Basanti filed an application under Section 25 of the Guardians and Wards Act, 1890 ('the Act') against the petitioners, who are her father-in-law and mother-in-law seeking custody of her minor son Raja @ Jeet Singh. It was inter-alia claimed in the application that the child was born at Udaipur and his father Niranjan Singh died at Udaipur and the applicant ordinarily resided at Udaipur. It was alleged that her son has been forcibly detained by her-in-laws. 3. An application under Order 7, Rule 10 CPC was filed by the petitioners inter-alia with the averments that on the date of filing application, the minor Raja @ Jeet Singh was not residing at Udaipur, but he was in custody of the petitioners at Kankroli and therefore, only the Courts at Rajsamand has the jurisdiction to deal with the said application. 4. The application was opposed by the respondent herein. It was inter-alia submitted that the applicant was residing with her husband and child at Udaipur when on 22.10.2007 her husband committed suicide and whereon, the family members came from Kankroli to Udaipur and took the dead body and the child forcibly to Kankroli. She stayed at Kankroli for 12 days and when she returned back to Udaipur, she was not permitted to bring the child with her and therefore, a registered notice dated 23.11.2007 was issued by her counsel and proceedings were lodged with A.D.M., Udaipur for custody of the child and ultimately, a revision was filed before the District Court, Udaipur on 5.1.2008. Thereafter, the present proceedings were lodged by her. 5. The trial court, after hearing the parties, came to the conclusion that the applicant Smt. Basanti was natural guardian being mother of minor Raja @ Jeet Singh and is resident of Udaipur, who is applicant in the matter and therefore, the courts at Udaipur had the territorial jurisdiction to hear and decide the matter and rejected the application filed by the petitioner under Order 7, Rule 10 CPC. 6. 6. It is submitted by learned counsel for the petitioners that the learned trial court fell in error in rejecting the application filed by the petitioners. It was submitted that admittedly, on the date of filing the application, minor Raja @ Jeet Singh was residing at Kankroli and therefore, it is only the courts at Rajsamand, who had the jurisdiction to deal with the matter in terms of the provisions of Section 9 of the act. 7. Reliance was placed on the judgment of this Court in the case of Sanjay Agarwal v. Smt. Krishna Agarwal, 2008(2) DNJ (Raj.) 967 . 8. Learned counsel for the respondent, on the other hand, emphasised that the requirement of provisions of Section 9(1) of the Act is ordinary residence of the minor and not the residence at the time of filing application and in view of the admitted facts, the minor Raja was ordinarily residing at Udaipur and therefore, the application filed by the respondent herein under Section 25 of the Act was maintainable at Udaipur. 9. Reliance was placed on the judgment of this Court in Wazid Ali v. Smt. Rubina Bano & Ors., AIR 2008 RAJ. 49 and Hariom v. Sunil, S.B. Civil Revision Petition No. 243/2010, decided on 25.5.2011 . 10. I have considered the rival submissions. 11. Though the factual allegations made in the petition regarding forcible removal of the child has been disputed by learned counsel appearing for the petitioners. However, for the decision of application under Section 9 of the Act, the said fact is immaterial, inasmuch as, it is not disputed that till at the time of death of Niranjan Singh - father of the child, the child was staying with his parents and it is after the suicide committed by said Niranjan Singh that the child was brought to Kankroli and was staying with the grand parents. 12. The provisions of Section 9 of the Act deals with the territorial jurisdiction. The relevant part whereof 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." 13. The relevant part whereof 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." 13. A bare reading of the provision would reveal that the requirement of the said provision is that the District Court where the minor ordinarily resides shall have jurisdiction to entertain application under the provisions of the Act in respect to the guardianship of the person of the minor. 14. The undisputed facts in the present case are that minor Raja was born on 30.4.2005 and his father Niranjan Singh committed suicide on 22.10.2007 and thereafter, he was taken to Kankroli from Udaipur. From the date of birth till the date, after death of his father, when he was taken to Kankroli, the said child was residing / staying with his parents i.e. Niranjan Singh - his father and applicant - Smt. Basanti - his mother. This is also not in dispute that when the application was filed by Smt. Basanti under Section 25 of the Act, the minor was residing at Kankroli, which in fact, gave her the cause of action to approach the District Court at Udaipur under Section 25 of the Act. 15. In the present case, from 30.4.2005 to about 22.10.2007, minor Raja was residing with his parents at Udaipur and thereafter he was taken to Kankroli. The temporary shift of residence immediately prior to filing of application under Section 25 of the Act cannot be termed as ordinary residence of the person of the child. The term 'ordinarily resides' connotes that but for intervening circumstance whereby the child might be staying at some other place, the place where he is ordinarily expected to be residing or was residing is the place of his ordinary residence. The said provision dealing with territorial jurisdiction has to be distinguished with the provisions in other enactments which give jurisdiction to the Court with reference to the place of last residence and both cannot be equated for the purpose of territorial jurisdiction. 16. In view thereof, the order passed by the trial court does not call for any interference. 17. The said provision dealing with territorial jurisdiction has to be distinguished with the provisions in other enactments which give jurisdiction to the Court with reference to the place of last residence and both cannot be equated for the purpose of territorial jurisdiction. 16. In view thereof, the order passed by the trial court does not call for any interference. 17. So far as the judgment of this Court in the case of Sanjay Agarwal (supra) is concerned, this Court was dealing with a order passed by the trial court which assumed the residence of the minor child based on the residence of the natural guardian and therefore, in the said judgment this Court held that the petition for custody of child would lie at the place where the child was actually residing and not based on assumption and/or the place of residence of the natural guardian. In the present case, the admitted position is that the child was ordinarily residing at Udaipur and was moved to Kankroli and was staying at Kankroli when the petition was filed, which residence at Kankroli cannot be termed as his ordinary residence. 18. In the case of Wazid Ali (supra), which was followed by this Court in Hariom (supra) it was held that it is not the place where the minor resides at the time of filing application seeking custody which determines the territorial jurisdiction of the Court, but it is factually as well as constructive custody prior to arising of cause of action which decide the jurisdiction of the Court under Section 9 of the Act and merely because on death of mother of the child, the child was removed from the custody of father and was taken away by maternal grand father living away at different place, the same would not take away the jurisdiction of the Court where prior to death of the mother of the child along with his mother used to live. The judgment of this Court in the case of Hariom (supra) applies on all fours to the present case. 19. In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed. 20. It goes without saying that any observations made herein- before would not prejudice the case of respective parties before the trial court.Revision dismissed. *******