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2025 DIGILAW 766 (JHR)

Avanish Kant Agnihotri v. Shilpi

2025-03-04

SANJAY KUMAR DWIVEDI

body2025
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Mr. Mukesh Kumar Sinha, learned counsel for the petitioner submits that reply to the counter affidavit and I.A. filed by the sole opposite party is ready, however, the same has not been submitted in the Registry as the matter was on board. 2. In view of his such submission, the said reply has been taken on record. 3. Heard Mr. Mukesh Kumar Sinha, learned counsel appearing for the petitioner and Mr. Shubham Mishra, learned counsel appearing for the sole opposite party. 4. This petition has been filed under Article 227 of the Constitution of India praying therein to quash the order dated 01.06.2024 passed in Original Suit No.274 of 2023 by the learned Additional Principal Judge, Family Court-I, Ranchi, whereby, the petition filed by the petitioner under Order VII Rule 11(d) of the CPC regarding jurisdiction and maintainability of the suit has been rejected by the learned Court. 5. Mr. Mukesh Kumar Sinha, learned counsel for the petitioner submits that the petitioner and the sole opposite party are legally wedded husband and wife whose marriage was solemnized on 06.06.2010 at Lucknow and out of the said wedlock, a male child was born on 19.07.2012. He further submits that after the marriage, both the parties with their minor child had been residing at Delhi where the minor was receiving education in one of the school. He then submits that the opposite party has voluntarily left the husband’s place at Delhi in first week of July, 2020 leaving minor son aged 7 years at Delhi in the custody of the petitioner-husband with an intention not to return to her matrimonial home ever because she has left the matrimonial home with all belongings, jewelries and testimonials. He also submits that during the COVID times, while the petitioner was suffering from COVID, the opposite party on 11.04.2021 forcibly took the child to Ranchi from Lucknow. He submits that the opposite party could not keep the minor child along with her in Ranchi and the child in a short stay of two months was assaulted and ill treated many times which the minor informed to the petitioner and minor insisted the petitioner to take him back to Lucknow. He submits that the opposite party could not keep the minor child along with her in Ranchi and the child in a short stay of two months was assaulted and ill treated many times which the minor informed to the petitioner and minor insisted the petitioner to take him back to Lucknow. The petitioner then reached Ranchi on 20.06.2021 and the opposite party and his brother arranged e-pass for travel during Corona left Ranchi along with the child on 21.06.2021 and reached Lucknow the same day along with the minor son and since then the son is residing at Lucknow. He further submits that the sole opposite party who had left the matrimonial home as per her choice, moved a petition in the month of March, 2023 under Section 7 and 25 of the Guardians and Wards Act, 1890 (hereinafter to be referred to as “the Act, 1890”) and the said petition has been numbered as Original Suit No.274 of 2023. He submits that the learned Principal Judge, Family Court-I, Ranchi in terms of the order dated 25.03.2023 posted the suit for hearing and admission for 27.03.2023 and the said suit was admitted vide order dated 10.04.2023, contained in Annexure-2. He also submits that an application under Order VII Rule 11 of the CPC read with Section 9 of the Act, 1890 was filed by the petitioner before the learned Court, which was decided by the impugned order. By way of referring Section 9 of the Act, 1890, he submits that the Court is having jurisdiction to entertain application in the place where the minor ordinarily resides. According to him, the child is residing in Lucknow and in view of that, the learned Court has wrongly passed the said order, which may kindly be set aside on the point of jurisdiction. On these grounds, he submits that this petition may kindly be allowed. 6. Mr. Shubham Mishra, learned counsel appearing for the sole opposite party submits that there is mixed question of fact and law in the case and that will be proved in the trial. He submits that this petition itself is not maintainable at this stage in absence of any evidence and there is no illegality in the impugned order and, as such, this petition may kindly be dismissed. 7. He submits that this petition itself is not maintainable at this stage in absence of any evidence and there is no illegality in the impugned order and, as such, this petition may kindly be dismissed. 7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the records and finds that it is an admitted position that the petitioner and the sole opposite party are husband and wife respectively and out of wedlock, a male child has born on 19.07.2012. Initially, the child was residing along with father and mother, however, due to matrimonial dispute, the wife has shifted to Ranchi. It has been alleged that the child was not being taken care of by the mother-opposite party and in view of that, the father-petitioner has taken child from Ranchi to Lucknow and till date, the child is residing at Lucknow. 8. For better appreciation of the case, Section 9 of the Act, 1890 reproduced hereinbelow: “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.” 9. From a bare reading of Section 9 of the Act, 1890, it is evident that sub-section (1) of Section 9 identifies the court competent to pass an order for the custody of the minor. Sub-sections (2) and (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. 10. For determining the territorial jurisdiction of the court under Section 9 of the Act, 1890, the expression “where the minor ordinarily resides” is the pivotal point for consideration. Sub-sections (2) and (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. 10. For determining the territorial jurisdiction of the court under Section 9 of the Act, 1890, the expression “where the minor ordinarily resides” is the pivotal point for consideration. The said expression has been used in different contexts and has often come up for interpretation before the courts of law. While reading the said expression “where the minor ordinarily resides”, it is imperative to see whether the minor is ordinarily residing at a given place? This 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 jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without any enquiry into the factual aspects of the controversy. 11. While explaining the expression “where the minor ordinarily resides”, the Allahabad High Court in the case of Jagdish Chandra Gupta v. Vimla Gupta , reported in 2003 SCC OnLine All 292 has been pleased to hold in paragraph 19 as under: “19. The expression ordinarily resides and residing at the time of the application are not synonymous and stipulate different situations which are not inter-changeable. The place where the minor ordinarily resides indicates a place where the minor is expected to reside but for the special circumstances. It excludes places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. The place has to be determined by finding out as to whether the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to different place.” 12. Further, in the case of Manish Sehgal v. Meenu Sehgal , reported in 2013 SCC OnLine Del 2838 , rendered by the High Court of Delhi and affirmed by the Hon’ble Supreme Court vide its order dated 30.01.2014 in Manish Sehgal v. Meenu Sehgal (II) , reported in 2014 SCC OnLine SC 1911 , it has been held in paragraphs 16 and 17 as follows: “16. It is settled law that the place of residence at the time of the filing of the application under the Act does not help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not. The moving of minors from one place to another and consequently from one jurisdiction to another does not help the party who raises the plea of jurisdiction. The main question i.e. whether the minors were ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. 17. In view of the abovesaid facts and circumstances as explained earlier, I am of the view that the impugned order cannot be interfered with. In view of facts stated in the petition, it is clear that the place where the children have gone to study cannot be presumed to be place of their ordinary residence.” 13. In the case of Ruchi Majoo v. Sanjeev Majoo , reported in (2011) 6 SCC 479 , the Hon’ble Supreme Court has examined the purpose of the expression “ordinarily resident” appearing in Section 9 (1) of the Act, 1890 and observed as under: “26. …… We may before doing so examine the true purpose of the expression ‘ordinarily resident’ appearing in Section 9 (1). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word ‘ordinary’ has been defined by Black's Law Dictionary as follows: ‘Ordinary (adj.).—Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterised by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual.’ The word ‘reside’ has been explained similarly as under: ‘Reside.—Live, dwell, abide, sojourn, stay, remain, lodge. Western-Knapp Engg. Co. v. Gilbank [Western-Knapp Engg. Co. Western-Knapp Engg. Co. v. Gilbank [Western-Knapp Engg. Co. v. Gilbank, 129 F 2d 135 (CCA 9th Cir 1942)], F 2d at p. 136] .) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right.” 14. The Webster's Dictionary also gives the word “reside” a similar meaning, which may be gainfully extracted as follows: “1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in.” 15. In the case of Jagir Kaur v. Jaswant Singh , reported in 1963 SCC OnLine SC 137 , the Hon’ble Supreme Court while dealing with a case under Section 488 of the CRIMINAL PROCEDURE CODE , 1973 and the question of jurisdiction of the court to entertain a petition for maintenance. The court noticed a near unanimity of opinion as to what is meant by the use of the word “resides” appearing in the said provision and held that “resides” implies something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words: “8. … Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word ‘resides’ thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case……….” 16. Further, in the case of Parshant Chanana v. Seema , reported in 2009 SCC OnLine P&H 7378 , it has been observed by the Punjab and Haryana High Court that Section 9 (1) makes it clear that it is the ordinary place of residence of the minor which determines the jurisdiction of a particular court to entertain an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the challan. 17. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the challan. 17. Thus, a bare perusal of Section 9 (1) of the Act, 1890 makes it apparent that it is the ordinary place of residence of minor which determines the jurisdiction of the court for entertaining an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the petition. The fact that the minor is found actually residing at the place when the application for the guardianship of the minor is made does not determine the jurisdiction of the court. 18. It is settled law that for invoking clause (d) of Order VII Rule 11 of the CPC, only the averments made in the plaint would be relevant and thus, for this purpose, there cannot be any addition or subtraction. The issue of merits of the matter would not be within the realm of the court as the court at that stage will not consider any evidence or enter a disputed question of fact or law. While dealing with the application under Order VII, Rule 11 of the CPC, the averments made in the plaint alone are to be seen. It is also trite that jurisdiction is a mixed question of law and fact, and a plaint should not ordinarily be rejected on the ground of jurisdiction, without framing a distinct issue and taking evidence. 19. The purpose of using the expressions “where the minor ordinarily resides” is perhaps to avoid the mischief that minor may be forcibly removed to a distant place, but still the application for minor's custody could be filed within the jurisdiction of the court from whose jurisdiction he had been removed or in other words where the minor would have continued to remain but for his removal. 20. In view of the above facts, reasons and analysis, the learned court is not required to decide the jurisdiction about the mixed question of fact and law, at this stage and that can be decided by way of framing specific issue in the question and the party has to prove it by way of leading the evidence. The Court finds that there is no illegality in the impugned order and, as such, this petition is dismissed. 21. Pending I.A., if any, is disposed of.