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2017 DIGILAW 2306 (MAD)

Subbaiah v. Minor Dinesh

2017-07-31

J.NISHA BANU

body2017
ORDER : This transfer Civil Miscellaneous Petition filed under Section 24 of Civil Procedure Code to withdraw the petition in G.W.O.P. No. 25 of 2014 on the file of the District court, Sivaganga and transfer the same to the Principal District Court, Dindigul. 2. The first petitioner is the father of the minor children, who are arrayed as the respondents herein and the second and the third petitioners are the grand patents of the minor respondents herein, and the minor respondents represented through their maternal grandparents in G.W.O.P. No. 25 of 2014 pending on the file of the District Court, Sivaganga, Sivagangai District. 3. The case of the petitioners is that the marriage between the first petitioner and the daughter of the representing respondents was solemnized on 13.11.2009 and out of their wedlock, they have a daughter and son. While so, due to the difference of opinion between the first petitioner and his wife, the mother of the minor children died on 12.04.2014. Thereafter, the representing respondents claimed the custody of the minor children through G.W.O.P. 25 of 2014 pending on the file of the District Court, Sivaganga, Sivagangai District by impleading the petitioners herein as well as the minor children and also sought a declaration declaring them as natural guardian. The petitioners appeared through their counsel and filed their reply also. The minors for whom the custody was claimed by the representing respondents is now with the natural guardian, namely, the first petitioner herein and they are being educated by him. 4. The further case of the petitioner is that the first petitioner is having some extent of agricultural field and doing cultivation activities over there to meet out the requirements of the children. It is also the case of the petitioners that the representing respondents, who claims custody of the children are age old and they find it difficult to meet out even their day today needs. It is also stated that the District Court, Sivagangai is completely devoid of jurisdiction to entertain the present G.W.O.P. as per Section 9 of the Guardian and Wards Act, 1890 which clearly emphasise that the territorial jurisdiction for claiming custody of the children shall vest with the jurisdiction where the minor children ordinarily resides. 5. It is also stated that the District Court, Sivagangai is completely devoid of jurisdiction to entertain the present G.W.O.P. as per Section 9 of the Guardian and Wards Act, 1890 which clearly emphasise that the territorial jurisdiction for claiming custody of the children shall vest with the jurisdiction where the minor children ordinarily resides. 5. Further, the petitioners submit that they are under the threat by the respondents because a compliant has been lodged against them as if the mother of the minor children died due to the petitioners herein and a case has been registered in Cr.No.96 of 2014 for the charge of dowry death. Since the petitioners have life threat to attend the District Court at Sivaganga, they pray for the transfer of the above application to the Principal District Court, Dindigul. 6. The case of the respondents is that in the earlier round of litigation, H.M.O.P. (MD) No. 114 of 2011 was filed before the Sub-Court, Dindigul, wherein, at page No.15, the first petitioner in his deposition denied the parentage of the second minor daughter and due to the attitude of the petitioners, the mother of the minor children lost her life and a criminal case in Cr.No.96 of 2014 has been registered against the respondents for the charges of dowry death and therefore, prays for rejection of the transfer civil miscellaneous petition. 7. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 8. Admittedly, since the death of the mother of the minor children, namely from 2014 onwards, they are under the care and custody of the natural guardian, namely, the petitioners herein. When the matter was heard by me on 26.07.2017, this Court directed the parties to be present with the minor children and the matter was adjourned to 31.07.2017 and today, when the matter was posted before me in the Chamber, at the request of the respondents, the children were given to the respondents for some time to have a word with the children, but within a few minutes, they screamed and refused to go with the respondents which might be due to the separation of the minor children since 2014. In any event, the only question before me to find out whether the minor children resides with the natural guardian or with the respondents herein. In any event, the only question before me to find out whether the minor children resides with the natural guardian or with the respondents herein. In this connection, it is useful to refer the judgment reported in 2016 (3) MWN (Civil) 504, A. Raisa Nasrin Vs. A.S. Bilal, wherein, in paragraph No.9 it has been held as follows:- “9. The Hon'ble Supreme Court of India in paragraph No.24 has stated that 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 a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factum in the present case on hand is very clear that the petitioner and the respondent are living separately and the female child aged about 6 years is in the custody of the petitioner and further she is studying 1st Standard in ILM Public School at Ilayangudi, Sivagangai District.” 9. Apart from the above, even as per Section 9 of the Act, it is stated as follows:- “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. In the light of the afore-said judgment coupled with the Section 9 of the Act, it is clear that normally where the minor children are residing would be the place of jurisdiction for entertaining the application in the matter of guardian and wards act for claiming the custody of the minor children and therefore, I do not find any hesitation to transfer and to withdraw the petition pending in G.W.O.P. No. 25 of 2014 on the file of the District court, Sivaganga to transfer the Principal District Court, Dindigul. 11. At this juncture, the learned counsel appearing for the petitioners would submit that G.W.O.P. No. 25 of 2014 on the file of the District court, Sivaganga is transferred and renumbered as G.W.O.P.No.1 of 2017 on the file of the Family Court, Sivaganga. 12. 11. At this juncture, the learned counsel appearing for the petitioners would submit that G.W.O.P. No. 25 of 2014 on the file of the District court, Sivaganga is transferred and renumbered as G.W.O.P.No.1 of 2017 on the file of the Family Court, Sivaganga. 12. Considering the facts and circumstances of the case, this petition is allowed on the following terms:- (i) The learned Judge, District court, Sivaganga is directed to transfer all the papers relating to G.W.O.P.No.1 of 2017 (being old No.G.W.O.P.No.25 of 2014) to the Principal District Court, Dindigul, within a period of two weeks from the date of receipt of a copy of this order. (ii) On receipt of the same, the learned Principal District Court, Dindigul, is directed to dispose of the case in G.W.O.P.No.1 of 2017 (being old No.G.W.O.P.No.25 of 2014), on merits and in accordance with law, as expeditiously as possible, preferably, within a period of six months, thereafter. No costs. Consequently, connected miscellaneous petition is closed.