Research › Search › Judgment

Punjab High Court · body

2023 DIGILAW 948 (PNJ)

Bikramjit Singh v. Renuka Devi

2023-03-02

LISA GILL, RITU TAGORE

body2023
JUDGMENT Ritu Tagore, J. The instant appeal is directed against the judgment of Principal Judge, Family Court Gurdaspur (hereinafter referred to as the 'Guardian Judge'), dated 10.10.2022, who dismissed the petition filed by the appellant-father Bikramjit Singh, through his real sister Poonam wife of Parshotam Kumar, under section 25 of the Guardians And Wards Act, 1890 (hereinafter referred to as 'the Act') on the ground of lack of territorial jurisdiction. 2. Brief facts of the case are that appellant Bikramjit Singh, filed a petition for custody of his minor daughter 'Mkaur' (her name has been screened) through his real sister Poonam wife of Parshotam Kumar while pleading insanity. Parties to the petition, it is stated, were married on 08.05.2012 at Gurudwara Baba Tehal Singh, Tibri road, Gurdaspur as per Sikh rites and rituals in a simple function of marriage. The couple was blessed with two daughters namely 'Skaur' bom on 18.02.2014 and 'Mkaur' bom on 19.07.2016. It is stated that minor daughter, 'Mkaur' is residing with the respondent at Kangra. 3. As per allegations of the appellant, behaviour of the respondent became very harsh, intolerable and cruel towards him after the birth of their second child; the respondent started levelling false allegations against his character and even expressed her dislike for him by alleging him to be an unsuitable match for her and was forced to marry him by her parents. The appellant also alleged undue interference of parents of the respondent in their matrimonial affairs. It is alleged that eventually, the respondent withdrew from his company without any reasonable and sufficient cause and of her own will and refused to join his company, despite several efforts made by him to bring the respondent back along with the minor child. The appellant claimed that respondent left the matrimonial home in October 2017 in his absence and took the minor child 'Mkaur' along with her by leaving the elder daughter in the matrimonial home. 4. According to the appellant, he is ready and willing to live with the respondent and his daughters and wants to maintain his family but mother of the respondent misguides her and wants to extract money from him for sending respondent and the child to matrimonial home. 5. 4. According to the appellant, he is ready and willing to live with the respondent and his daughters and wants to maintain his family but mother of the respondent misguides her and wants to extract money from him for sending respondent and the child to matrimonial home. 5. Further, as per the appellant, the minor daughter 'Mkaur' is residing with the respondent and he (appellant) was not allowed to meet his daughter, whenever he tried to visit and meet her. It is alleged that respondent is not properly bringing up the minor daughter. She is not giving any education or other basic necessities of life to the child. The respondent is not concerned about the welfare and future of the minor daughter and is forcing the minor daughter to beg for alms. On the above material assertions and allegations, appellant seeks custody of the minor daughter to be handed over to him for her better future as he has sufficient wherewithal for providing good education and all necessities of life to the child. He requested the respondent to deliver custody of the minor daughter to him but she refused, which necessitated filing of the petition for custody. 6. Upon notice, the respondent did not appear and was proceeded ex parte before the Guardian Judge. 7. In ex parte evidence, the petitioner examined four witnesses and also tendered documentary evidence. However, the Guardian Judge dismissed the petition on the ground of lack of jurisdiction by observing that minor daughter 'Mkaur'is residing with her mother in district Kangra, therefore, the Court at Gurdaspur has no territorial jurisdiction to try the matter. It was also observed that the petitioner did not take prior permission from the Court to prosecute the petition through legal guardian/next friend. 8. Learned counsel for the appellant has vehemently argued that judgment dated 10.10.2022 passed by the Guardian Judge is patently illegal as the minor daughter was removed from custody of the petitioner in his absence by the respondent, therefore, the Court at Gurdaspur has territorial jurisdiction to try and entertain the petition and not the Court at Kangra as the child was 'ordinarily residing' at Gurdaspur before she was taken to Kangra by the respondent. 9. 9. It is further contended that elder daughter of the parties is residing with the petitioner and respondent is not providing any access to him and the elder daughter to meet the minor daughter as such the respondent is snapping the bond between the father and the daughter as well as between the sisters. Both the sisters are missing the affection and bond between siblings. The respondent is not taking care of the minor daughter at all. On these material facts and circumstances, learned counsel contended that seeking welfare of the child, petition was filed by the petitioner-father under Section 25 of the Act for the custody of the minor daughter 'Mkaur'. The Guardian Judge failed to appreciate the facts pleaded and proved by the appellant by leading cogent evidence that indeed remained un-controverted on record as the respondent did not prefer to contest the petition and remained ex parte. 10. Learned counsel stated that the Guardian Judge dismissed the petition on account of want of jurisdiction to entertain the petition and that no prior permission was taken by the petitioner for representing him through legal guardian/next friend. In view thereof, Guardian Judge should have asked the petitioner to correct the defect or directed him to present the petition before appropriate forum but should not have dismissed the petition. Learned Counsel, thus, submitted that appeal be accepted by setting aside the impugned judgment and necessary permission be given to the petitioner to present the petition through next friend/legal guardian to pursue the same, or matter be sent to the appropriate Court, having jurisdiction and meanwhile visitation rights be granted to him in the larger interest of the welfare of the minor. 11. We have heard learned counsel for the appellant and have gone through the impugned judgment and the paper book. 12. Petition filed by the appellant has been held not maintainable for lack of jurisdiction and for having been filed through appellant's sister without permission of Court. At this stage, it is relevant to refer to Section 8 and 9 of the Act. 13. Section 8 of the Act makes provision with regard to persons entitled to apply for an order under Section 7 of the Act. Section 9 speaks about the jurisdiction of the Court to entertain an application. At this stage, it is relevant to refer to Section 8 and 9 of the Act. 13. Section 8 of the Act makes provision with regard to persons entitled to apply for an order under Section 7 of the Act. Section 9 speaks about the jurisdiction of the Court to entertain an application. The relevant provisions of Section 8 and section 9 of the Guardians And Wards Act, 1890 are extracted below:- Section 8. Persons entitled to apply for order.-An order shall not be made under the last foregoing section except on the application of- (a) the person desirous of being, or claiming to be, the guardian of the minor, or (b) any relative or friend of the minor, or (c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or (d) the Collector having authority with respect to the class to which the minor belongs. Section 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. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. 14. Sub-section (1) of Section 9 of the Act clearly provides that if the application is with respect to guardianship of the minor, it shall be filed before the District Court (Family Court) having jurisdiction in the place where the minor ordinarily resides. The provision manifests that the Court within whose jurisdiction the minor 'ordinarily resides' will have territorial jurisdiction to entertain application for guardianship of the minor. The provision manifests that the Court within whose jurisdiction the minor 'ordinarily resides' will have territorial jurisdiction to entertain application for guardianship of the minor. Hon'ble the Supreme Court in the case of 'Ruchi Maioo v. Sanieev Mmoo' (2011)6 SCC 479 held that solitary test for determining jurisdiction of the Court under Section 9 of the Act is the ordinary residence of the minor. Ordinary residence means where the minor ordinarily resides. The use of the word 'resides' implies something more than a flying visit to, or casual stay at a particular place. The test for determining jurisdiction is the place of ordinary residence of minor and intention to make that place one's ordinarily abode. In this regard, it is pertinent to extract observations made by the Supreme Court in the said decision which are as below: "24. It is evident from a bare reading of the above that solitary test for determining the jurisdiction of the Court under Section 9 of the Act is the 'ordinary residence' of the minor. The expression used is 'where the minor ordinarily resides'. Now whether 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 any enquiry into factual aspects of the controversy. " 15. Reverting to the facts in hand, it is averred by the appellant-petitioner that in the month of October 2017, respondent-wife in his absence, left the matrimonial home and while leaving home she also took away their minor daughter (Mkaur). Impugned judgment reveals that petition was filed by the appellant on 11.01.2021 i.e. after more than 3 years of the alleged leaving of the house by the respondent with her minor daughter. 16. The solitary test for determining jurisdiction of the Court under Section 9 of the Act is the place of 'ordinary residence' of the minor. Section 8 (c) of the Act also speaks of ordinary residence of the minor or in which he or she has property. Section 9 of the Act manifests that Court within whose jurisdiction minor ordinarily resides will have territorial jurisdiction to entertain the application for guardianship of the minor. Section 8 (c) of the Act also speaks of ordinary residence of the minor or in which he or she has property. Section 9 of the Act manifests that Court within whose jurisdiction minor ordinarily resides will have territorial jurisdiction to entertain the application for guardianship of the minor. The Guardian Judge after evaluating the evidence came to a definite finding that ordinary residence of minor child is where she is residing with her mother at Kangra and not at Gurdaspur where the petitioner has filed the petition. 17. A ruling of Division Bench of Kerala High Court in case 'Salini v. Umasankaran' 2017 (2) RCR (Civil) 397 held that 'there cannot be any straitjacket formula that could be adopted by the Courts dealing with issues of territorial jurisdiction in matters relating to custody of children or appointment of guardian for them. On the contrary, the guiding factors for the Court should be the facts and circumstances of the case on its hand. 'It was further observed that 'the meaning of word 'ordinarily resides' signifies dwelling in a place continuously for a certain period. Therefore, 'ordinary residence is something more than a temporary residence and it can be ordinary residence of the parties in case of themselves residing together or of either the parents as well in a situation when both parents are living apart. The expression 'ordinary residence' connotes a regularly settled home and not a place of stay where the children are obliged to dwell by force of circumstances or compulsion of parent's employment. But a minor can always retain the place of residence of his or her mother. In case of the spouse living apart, or are no more, the person with whom child shares his residence for a considerable long period should be given preference by the Court while dealing with custody applications.' 18. Admittedly, the minor daughter is residing with her mother-respondent at Kangra for more than three years before filing of the petition for custody. In the given facts, ordinary place of residence of minor is where the child is living for long with her mother i.e. at Kangra. The Guardian Judge thus, has rightly held that it has no jurisdiction to entertain the petition in view of the provisions of Section 9 of the Act. 19. In the given facts, ordinary place of residence of minor is where the child is living for long with her mother i.e. at Kangra. The Guardian Judge thus, has rightly held that it has no jurisdiction to entertain the petition in view of the provisions of Section 9 of the Act. 19. In view of the facts of the present case as discussed above, we are of the view that there is no illegality in the findings recorded by the Guardian Judge in the impugned judgment dated 10.10.2022 and calls for no interference. Furthermore, the same is not an impediment for the appellant to file a petition before the Guardian Judge, Family Court, Kangra for custody of the minor daughter (M kaur) if so advised in accordance with law. 20. Insofar as the pleas that the respondent is not looking after the best interest and welfare of the minor child and visitation rights be granted to him, are concerned, the appellant can agitate the same before the appropriate forum/Court. The other plea that Guardian Judge did not ask him to correct his application for seeking permission to prosecute through next friend/legal guardian, is not required to be dealt here within this appeal as the appellant can always move appropriate application before the appropriate forum/court. 21. As upshot of the aforesaid deliberations, the appeal stands dismissed with no order as to cost. Pending miscellaneous applications, if any,is/are accordingly disposed of.