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2017 DIGILAW 610 (JHR)

Roshan Aara v. Jahir Alam

2017-04-03

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : 1. Heard learned counsel for the appellant and learned counsel for the respondent. Lower Court Record has been received in this case. 2. The appellant is aggrieved by the ex-parte Judgment dated 30.8.2014 passed by the learned Principal Judge, Family Court, Hazaribag, in Guardianship Case No. 04 of 2008, whereby, the Court below has held the respondent herein to be the natural guardian of the minor son of the parties. 3. The Lower Court Record shows that the suit was filed by the husband, Jahir Alam, in the Court below, claiming to be the guardian of the minor son, Ahmad Raja, and also praying that the opposite party wife may be directed to hand over the minor Ahmad Raja to the husband applicant. 4. The impugned Judgment shows that according to the applicant's case, the minor Ahmad Raja was born on 26.4.2006, out of the wedlock between the parties and the minor son was living with his mother at New Colony, Chakia Road, Deoria, in the State of Uttar Pradesh. The applicant husband filed the suit in the Court below, claiming himself to be the natural guardian as also the custody of his minor son. 5. It appears from the impugned Judgment that upon notice, the appellant wife appeared in the Court below and she filed show-cause on 27.9.2008, in which, the maintainability of the suit was challenged on the ground of territorial jurisdiction and it was claimed that throughout the minor son was living at Deoria, in the State of Utter Pradesh and as such, the Court below had no territorial jurisdiction to try the suit. 6. It further appears from the impugned Judgment that three witnesses were examined on behalf of the applicant respondent in the Court below, who were AW-1, Maksud Alam, the brother of the applicant, AW-2, Sahid Hassan, the father of the applicant and AW-3, Jahir Alam, the applicant himself. These witnesses were neither cross-examined by the opposite party wife, nor the opposite party wife adduced any evidence in the matter. However, from the evidence of the witnesses examined on behalf of the applicant himself, it is apparent that the marriage had taken place between the parties on 27.3.2005 at Deoria, in the State of Uttar Pradesh and thereafter, the wife came to her matrimonial home at Religarha, in the District of Hazaribag and lived there only for six months. However, from the evidence of the witnesses examined on behalf of the applicant himself, it is apparent that the marriage had taken place between the parties on 27.3.2005 at Deoria, in the State of Uttar Pradesh and thereafter, the wife came to her matrimonial home at Religarha, in the District of Hazaribag and lived there only for six months. The son was born to her after thirteen months of marriage, on 26.4.2006 at Deoria, and it is claimed that the expenses of the birth of son were incurred by the respondent husband. It is again apparent from the evidence on record, that after three months of the birth of the son, the wife and child came and they lived at Religarha, in the District of Hazaribag and only after about three months, she went back to her parents' place at Deoria in the State of Uttar Pradesh, and she never came thereafter. Accordingly, it is apparent from the evidence of the witnesses examined by the applicant himself, that the child has been living with his mother throughout at Deoria, in the State of Uttar Pradesh. 7. Section 9 (1) of the Guardian and Wards Act, 1890, lays down 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." Thus, a plain reading of this provision clearly shows that any application with respect to the guardianship of the person of the minor had to be filed in the Court having jurisdiction in the place where the minor ordinarily resides. 8. Learned counsel for the appellant wife submitted that admittedly, minor son is residing with his mother at Deoria, in the State of Uttar Pradesh and accordingly, the Court below had no jurisdiction to entertain the suit and on this score alone, the impugned Judgment cannot be sustained in the eyes of law. 9. Learned counsel for the respondent husband, on the other hand, submitted that after the marriage, the ordinary residence of the wife shall be the matrimonial home, which is in the District of Hazaribag, and accordingly, for all practical purposes, the ordinary residence of the minor shall be treated at Hazaribag, irrespective of the fact that the child is actually living at Deoria along with his mother. 10. We are not in a position to accept the contention of the learned counsel for the respondent. Admittedly, according to the witnesses examined by the respondent himself in the Court below, the birth of the child had taken place on 26.4.2006 at Deoria, in the State of Uttar Pradesh. After three months of the birth of the child, the child came with his mother to Hazaribag, and they lived there only for about three months and thereafter, the child was taken back by his mother to Deoria, where she is living along-with her parents. 11. It is an admitted position between the parties that during the pendency of this appeal, there has been Talaque between the parties. 12. We are of the considered view that even though, the respondent is the father of the child born out of the wedlock, but the fact remains that the suit filed by the respondent husband was not at all maintainable in the Court below, as the Court below had no territorial jurisdiction to entertain the suit. The evidence on record clearly shows that the child is ordinarily residing with his mother at Deoria in the State of Uttar Pradesh. 13. In view of the aforementioned discussions, we are of the considered view that the impugned Judgment dated 30.8.2014 passed by the learned Principal Judge, Family Court, Hazaribag, in Guardianship Case No. 4 of 2008 cannot be sustained in the eyes of law, due to lack of jurisdiction. The impugned Judgment is accordingly, set aside. 14. It goes without saying that the respondent shall be at liberty to file the suit before the competent Court having jurisdiction to try the suit. 15. This appeal is accordingly, allowed with the observation as above. Let the Lower Court Record be sent back forthwith to the Court concerned, along-with a copy of this Judgment.