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2013 DIGILAW 2223 (RAJ)

Suman Vyas v. Mukesh Joshi

2013-12-10

ARUN BHANSALI

body2013
JUDGMENT 1. - This revision petition is directed against the order dated 27.8.2011 passed by the District Judge, Bhilwara, whereby the application filed by the respondent under Order Vll Rule 11 C.P.C. has been accepted and petition filed by the petitioner under Section 10 of the Guardians and Wards Act, 1890 ('the Act') has been rejected. 2. The petitioner Smt. Suman Vyas filed petition under Section 10 of the Act, Inter alia, with the averments that marriage between the parties was solemnized on 22.2.2002 and a daughter was borne on 28.3.2003. The child was minor, was born at Bhilwara and the petitioner being natural guardian was entitled to custody. It was alleged that the respondent-husband was not looking after the child properly and was shifting her from one place to another to his various relatives, which is not justified, she has been deserted and, therefore, custody of the child be handed over to her, she be declared the guardian. 3. It was also indicated in the petition that on 13.8.2006 the respondent-husband turned her out of the matrimonial home and from such time, the child was in his custody and when she received the information in April, 2010 about the child being shifted from one place to another, cause of action has arisen in her favour. Ultimately, it was prayed that the petition be decided in her favour and custody of the child be handed over to her. 4. The respondent has filed reply to the petition and disputed the averments contend therein. 5. Thereafter, an application under Order 7, Rule 11 C.P.C. was filed by the respondent, inter alia, with the averments that the petition tinder Section 10 of the Act can only be filed where the child resides and as the child is staying at Indore, the Courts at Indore only has the jurisdiction and, therefore, the petition filed by the petitioner be rejected. 6. A reply to the said application was filed by the petitioner, inter alia, claiming that as the child was born at Bhilwara, the Courts at Bhilwara has the jurisdiction. To entertain the said application so far as the residence of the child was concerned, the same was a issue of fact, which can only be decided after evidence is led by the parties, therefore, the application be rejected. 7. To entertain the said application so far as the residence of the child was concerned, the same was a issue of fact, which can only be decided after evidence is led by the parties, therefore, the application be rejected. 7. After hearing the parties, the .learned Trial Court on perusal of the averments contained in the application, reply filed by the respondent and certain documents, came to the conclusion that the Courts at Bhilwara or Chittor does not have the jurisdiction and, consequently, allowed the application under Order 7, Rule 11 C.P.C. and rejected the petition filed by the petitioner. 8. It is submitted by learned Counsel for the petitioner that the Trial Court while considering the petition under Order 7, Rule 11 C.P.C. is not entitled to look at the written statement filed by the respondent and documents and as the Trial Court has looked into the said written statement and record, the order impugned is against the settled position of law. 9. It is further submitted that the petitioner is a resident of Bhilwara and there is a specific allegation in the petition that the child is being moved from one place to another and, therefore anywhere, where the petitioner files the petition, it would be claimed that the child was not available there and, therefore, the said Court would not have jurisdiction. It was prayed that in the peculiar facts of the case and looking to the nature of jurisdiction and the fact that the welfare of the child is of paramount importance the issue of territorial jurisdiction cannot be made a basis to deny the relief to the petitioner. 10. Per contra, learned Counsel for the respondent supported the order impugned passed by the Trial Court. 11. Section 9 of the Act deals with the jurisdiction of the Court, which reads as under:- "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." 12. The said provision clearly confers jurisdiction on the District Court, where the minor ordinarily resides. 13. 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." 12. The said provision clearly confers jurisdiction on the District Court, where the minor ordinarily resides. 13. A bare look at the averments contained in the petition filed by the petitioner under Section 10 of the Act reveal that she has given out specific date i.e. 13.8.2006 when she was allegedly turned out of the matrimonial home and the child was retained back and the petition under Section 10 of the Act was filed on 3.7.2010. No where in the petition, the petitioner has made averments that the child is ordinarily residing at Bhilwara except for an averments that the child was born at Bhilwara. Admittedly, the respondent-husband is a resident of Chittor and the same appears to be the place of matrimonial home of the petitioner also. 14. From the said averments made in the petition, it is apparent that except for the birth of the child at Bhilwara, as claimed by the petitioner, there isn't any averments regarding ordinary residence of the child at Bhilwara. Further, even in reply to the application filed by the respondent under Order 7, Rule 11 C.P.C., the only averment made is that the child was born at Bhilwara and at the time of deserting the petitioner, the custody of the child was forceablly retained by the respondent. 15. From the above, it is apparent that it is neither the case of the petitioner nor the facts alleged in the petition as well as reply to the application under Order 2, Rule 11 C.P.C. reveals that the child was ordinarily residing at Bhilwara and, therefore, in no case the Court at Bhilwara had any jurisdiction to entertain the application under Section 10 of the Act. 16. So far as the plea raised by the learned Counsel for the petitioner regarding relying on the written statement and the documents Filed by the respondent while considering the application under Order 7, Rule 11 C.P.C., is concerned, even on a bare reading of the petition under Section 10 of the Act, it is apparent that the Court at Bhilwara had no jurisdiction. So far as the issue regarding the shifting of residence of the child from time B time and difficulty about ascertaining the jurisdiction of particular Court for filing petition under Section 10 of the Act is concerned, this Court in Madhav Hugh & Anr. v. Smt. Basanti, S.B. Civil Revision Petition No. 134/2009, decided in 6.11.2013 , held as under:- "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." Therefore it cannot be said that the shifting of child from one place to another poses any difficulty for the petitioner. In any case, for a petition under Section 10 of the Act, even the shifting of the child from one place to another cannot confer jurisdiction on Courts at Bhilwara on account of the residence of the mother, which fact has no bearing on the territorial jurisdiction under Section 9 of the Act. So far as the observations made by the learned Trial Court regarding the Courts at Chittor also not having any jurisdiction is concerned, the said observations are apparently beyond the pleadings and/or submissions of the parties and as the Court was only required to Rule on its own jurisdiction only. 17. Accordingly, except for the superfluous observation made regarding jurisdiction of Chittor Court, which stands set aside, the order impugned passed by the Trial Court does not call for any interference. Consequently, the revision petition as well as the stay petition are dismissed. Revision dismissed. *******