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2016 DIGILAW 1082 (CAL)

Avneet Kaur Chopra v. Karan Pal Singh Chopra

2016-12-23

HARISH TANDON

body2016
JUDGMENT : HARISH TANDON, J. 1. This revisional application is directed against Order No. 17 dated 28th November, 2016 passed by learned Additional District Judge, 1st Court, Alipore in Act VIII Case No. 45 of 2016 by which an application under Order 7 Rule 11 of the Code of Civil Procedure is rejected. The undisputed facts as would appear from the record are that the parties were married as per their ritual and customs and started living in the matrimonial home in Kolkata. The marriage was solemnized on 5th May, 2007 and a female child was born on 19th March, 2008. The parties do not find compatible to each other and it would not be wrong to state that there was a matrimonial discord. The husband/opposite party filed the Matrimonial Suit No. 2803 of 2015 seeking decree for divorce before the learned District Judge, Alipore, which is renumbered as Matrimonial Suit No. 119 of 2015 after its transfer to the Additional District Judge, 8th Court, Alipore. 2. Subsequently, an application under Section 25 of The Guardians and Wards Act giving rise to Act 8 Case No. 45 of 2016 is filed by the husband/opposite party for a decree for guardianship and custody of the minor daughter namely Jassica Chopra. It is alleged therein that the minor daughter was admitted in Modern High School for Girls and pursued her study till Class 3 till the date when she was stealthily taken away by the wife to her parental house. It is alleged in the said application that the wife without informing the opposite party as well as the parents took away the minor daughter on 27th March, 2016 without leaving any information as to their whereabouts. A complaint was lodged with the local police station about the missing of the petitioner as well as the minor daughter and subsequently, it came to the knowledge that the petitioner and the daughter are residing at Ghaziabad. 3. The wife after receiving the summon issued upon her filed an application before the Additional District Judge, 1st Court, Alipore seeking dismissal of an application under Section 25 of the Guardians and Wards Act on the ground of jurisdiction. It is averred therein that the minor daughter ordinarily resides at Ghaziabad and in view of Section 9 of the said Act the application can only be filed before the District Judge at Ghaziabad. 4. It is averred therein that the minor daughter ordinarily resides at Ghaziabad and in view of Section 9 of the said Act the application can only be filed before the District Judge at Ghaziabad. 4. The Trial Court passed an interim order in the said proceeding directing the concerned police station to take custody of the minor daughter and produce her before him on the returnable date. The said order was challenged in C.O 3046 of 2016 before this Court. This Court found that taking custody of the minor child by a police authority and production before the Court is not conducive to the minor child and may lead to a negative impact in her mind. The order was modified setting aside the aforesaid portion of the said order with further direction upon the Trial Court to decide the application filed by the petitioner raising question over the jurisdiction of the Court. the Trial Court rejected the said application holding that since the daughter was residing at Kolkata from birth till 27th March, 2016 when she was taken away by the wife the expression ‘ordinarily resides’ cannot be interpreted in the manner which would frustrate the legislative intent. 5. The learned Advocate for the petitioner proceeded to argue the instant revisional application on the basis of the facts already pleaded in an application under Section 25 of the said Act and sought to contend that in view of the provision contains Section 9 of the Act since the daughter was admittedly residing at Ghaziabad at the time of institution of the proceeding, the Court, before which such application has been filed lacks inherent jurisdiction. It is further contended that Sub-Section 1 of Section 9 of the said Act provides that an application to guardianship of a person of a minor can only be filed before the District Court having jurisdiction in the place where the minor ordinarily resides. To elaborate, it is submitted that since the minor is residing at Ghaziabad and is studying in the school thereat at the time of filing the said proceeding, it is hit by such provision. To elaborate, it is submitted that since the minor is residing at Ghaziabad and is studying in the school thereat at the time of filing the said proceeding, it is hit by such provision. According to the learned Advocate, the expression “ordinarily resides” came up for consideration before the Supreme Court in case of Ruchi Majoo –Vs- Sanjeev Majoo reported in (2011) 6 SCC 479 wherein it is held the word ‘reside’ though means dwell, stay but the word ‘ordinarily’ preceding it connotes regular, usual or normal place of residence and in view of the undisputed facts that the girl was residing at Ghaziabad at the time of filing the said proceeding, the Trial Court lacks jurisdiction. 6. The reliance is further placed upon a judgment of the Supreme Court in case of Pooja Bahadur –Vs- Uday Bahadur reported in (1999) 4 SCC 348 to buttress the submission that if the minor child is found to be residing with the mother an application under the aforesaid provision is required to be filed before the District Judge who has the jurisdiction on the place of such residence. 7. Per contra, the learned Advocate appearing for the husband submits that the expression “ordinarily resides” appearing in Section 9(1) of the Act cannot be interpreted to mean the temporary residence. It is, further contended that the minor daughter was residing in Kolkata since the date of her birth till 27th March, 2016 when she was stealthily taken away by the wife and therefore the proceeding is competent within the jurisdiction of the District Judge, Alipore. It is, further contended that in the facts and circumstances of the case the Trial Court have not committed any error in rejecting an application for dismissal of the suit. 8. The undisputed fact, which appear from the respective stands of the parties before all the Court are that the minor daughter resided at her parental house till 27th March, 2016. There is no unanimity on the assertion whether the daughter was stealthily taken away by the wife / petitioner or she was forced to leave her matrimonial house with the minor girl because of the torture and rude behaviour to which she was subjected to. It is also undisputed that the custody petition came to be filed immediately upon coming to know of the present address of the wife / petitioner and the child at Ghaziabad. 9. It is also undisputed that the custody petition came to be filed immediately upon coming to know of the present address of the wife / petitioner and the child at Ghaziabad. 9. Before proceeding to deal with the points agitated before this Court, it would be profitable to quote Section 9(1) of the Guardians and Wards Act, which runs 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.” 10. Both the parties have relied upon the judgment of the Supreme Court rendered in case of Ruchi Majoo (Supra) and placed their own interpretation, which they perceive thereform. In the said report the custody was sought of the minor son who was born in America and admittedly the parties therein resided at America. A proceeding was initiated before the American Court for divorce and custody of the minor son and an order was passed by the Superior Court of California, County of Ventura in America, which led to the issue of a red corner notice based on the allegation of child abduction leveled against the mother. The mother filed a proceeding under the Guardians and Wards Act seeking interim custody of the minor to her and an interim order was passed by the Additional District Court at Delhi in her favour. The father challenged the said order before the High Court under Article 227 of the Constitution of India, which was allowed and the said order was further assailed before the Supreme Court. One of the questions framed by the Supreme Court relates to the jurisdiction of the Court in which the application for custody to the said Act is competent. The expression “ordinarily resides” came up for consideration before the Supreme Court wherein not only the ordinary and grammatical meaning of the aforesaid words were taken into but also the other judgments of the Court. It is held therein that the word “resides” implied something more than the flying visit or the casual stay and therefore depends upon the facts of the each case. The Apex Court further noticed the coining of two words namely ‘ordinarily resides’ and held that it may not be relatable only to duration but also to purpose. 11. It is held therein that the word “resides” implied something more than the flying visit or the casual stay and therefore depends upon the facts of the each case. The Apex Court further noticed the coining of two words namely ‘ordinarily resides’ and held that it may not be relatable only to duration but also to purpose. 11. In Ruchi Majoo (Supra) the Apex Court noticed the earlier judgment rendered in case of Kuldeep Nayar –Vs- Union of India reported in (2006) 7 SCC 1 wherein the aforesaid expressions were construed as not to require that the person should be one who is always the resident in the particular place and is not determinant on duration. In Ruchi Majoo (Supra) several judgment of the other High Courts were also noticed and it is held that the question whether a person is the ordinary resident of a given place is essentially a question of fact and the intention. It would be relevant to quote the paragraph which runs thus:- “31. Reference may be made to Bhaghyalakshmi v. K. Narayana Rao, Aparna Banerjee v. Tapan Banerjee, Ram Sarup v. Chimman Lal, Vimla Devi v. Maya Devi and Giovanni Marco Muzzu (Dr.), In re, in which the High Courts have dealt with the meaning and purport of the expressions like “ordinary resident” and “ordinarily resides” and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place one’s ordinary abode.” 12. The similar point arose before the Co-ordinate Bench in case of Subhadip Laskar –Vs- Sanjukta Laskar reported in 2011(3) CHN (Cal) 575. Though the judgment rendered in case of Ruchi Majoo (Supra) was not cited yet the same view is expressed therein. The relevant portion of the said judgment is quoted as under:- “43. The legislature in its wisdom having used the words “where the minor ordinarily resides” and not where he actually or presently resides on the date of the application, Mr. Banerjee is right in his contention that the residence of the minor immediately prior to the application under the Act being filed by itself cannot be the determining factor. The legislature in its wisdom having used the words “where the minor ordinarily resides” and not where he actually or presently resides on the date of the application, Mr. Banerjee is right in his contention that the residence of the minor immediately prior to the application under the Act being filed by itself cannot be the determining factor. However, one cannot lose sight of the fact that the place of residence where the spouses lived together as husband and wife with the minor cannot also be the determining factor in deciding the jurisdiction of the Curt but could be considered as one of the circumstances in determining the ordinary place of residence of the minor by drawing a presumption. If indeed the residence of the natural guardian would have to be construed as the determining factor, section 9(1) would have been worded differently to authorize the District Court having jurisdiction in the place where the natural guardian ordinarily resides to receive the application in respect of guardianship. Also whether or not a minor child has been stealthily or forcefully removed from the residence where he had been residing from birth must be established free from all doubts before an objection that the District Court trying the application filed under the Act, in terms of provisions contained in section 9 thereof, has no jurisdiction could be sustained. In such circumstances, in my view, the rough and ready workable test that is required to be applied is, whether shifting of the child from his father’s residence to somewhere else where his mother takes him is occasioned in the normal run of events or by design to create jurisdiction in any particular District Court of her choice or not. Applying this test to the facts at hand, it appears that the minor child has been residing at Dhakuria, at his maternal grandfather’s place as the normal outcome of marital discord between the parties. There is no material, at least at this stage, to return a finding that Master Soham was stealthily removed. Applying this test to the facts at hand, it appears that the minor child has been residing at Dhakuria, at his maternal grandfather’s place as the normal outcome of marital discord between the parties. There is no material, at least at this stage, to return a finding that Master Soham was stealthily removed. also, considering the circumstance that a wife leaving her matrimonial home on account of marital discord and taking shelter in her father’s house with her child is not a rare feature of present day society, there can be no two opinions that factum of Master Soham residing at his maternal grandfather’s residence with his mother is not one which could be construed as a result of compulsion so as to negate the jurisdiction of the District Court of South 24 Parganas to entertain the application for guardianship filed by the opposite party.” 13. There is a parity in facts with Subhadip Laskar (Supra). It is a categorical statement of the opposite party that the minor daughter has been stealthily and forcibly removed from the residence where she was residing since birth and therefore such being the situation it is a matter of evidence to be laid thereupon before dismissing the proceeding at the nebulous stage. The aforesaid expression primarily connotes the intention and therefore cannot be decided in segregation thereof. The application taken out by the wife/petitioner simply proceeds that as on the date of the initiation of the proceeding under Section 25 of the Act the girl was admittedly residing at Ghaziabad and therefore is hit by Section 9(1) of the Act. In view of the enunciation of law as stated above such question is basically a question relating to intention and therefore should not be decided on the said simple fact indicated in the application by the wife / petitioner. 14. Before concluding I would be failing in my duty if I do not refer my judgment rendered in case of Dr. Avijit Ghosh @ Abhijit Ghosh –Vs- Dr. Jayita Ghosh (Nee Chatterjee) reported in 2015(3) CHN (Cal) 487 wherein it is held:- “11. The intention is essentially a question of facts, which sometime assumes the character of mixed question of facts and law. The intention is required to be gathered not only from the pleadings but also from the evidence produced before the Court, both orally and documentary. Jayita Ghosh (Nee Chatterjee) reported in 2015(3) CHN (Cal) 487 wherein it is held:- “11. The intention is essentially a question of facts, which sometime assumes the character of mixed question of facts and law. The intention is required to be gathered not only from the pleadings but also from the evidence produced before the Court, both orally and documentary. What is apparent may not be real. Though sometimes the thing as it exists suggests something superficial, but may not be real when the intention of the parties are unearthed before the Court. 12. This Court, therefore, does not think it fit that at the nascent stage of proceeding and solely relying upon certain averments, the entire proceeding is to be nipped in the bud without affording an opportunity to the parties to adduce evidence in order to gather the intention.” 15. This Court, therefore, does not find any infirmity and/or illegality in the impugned order. 16. The revisional application is therefore dismissed. 17. However, there shall be no order as to costs.