CR No.3990 of 2013 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3990 of 2013 (O&M) Date of Decision: August 31, 2013 Neeaj Gahlaut ..Petitioner Versus Anjali Gahlaut ..Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH 1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.Mithlesh Kumar, Advocate, for the petitioner.
Mr.Dinesh Kumar Jangra, Advocate, for the respondent.
Paramjeet Singh, J.
CM No.16529-CII of 2013 Civil Misc.
application is allowed subject to all just exceptions.
Annexures P/6 to P/8 are taken on record.
CR No.3990 of 2013 Instant revision petition has been filed under Articles 226/227 of the Constitution of India for setting aside the order dated 25.05.2013 (Annexure P/5) passed by learned Guardian Judge, Chandigarh whereby Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 2 two applications filed by the petitioner under Order 7 Rule 11 CPC have been dismissed.
Brief facts relevant for disposal of the case are that the respondent, mother of two minot children, namely, Shaurya aged about 7- 1/2 years and Achint, aged about 3-/12 yeaRs.by moving a petition under Section 25 of the Guardians and Wards Act, 1850, has claimed a declaration from the Guardian Judge, Chandigarh that she is natural guardian of the minot children and has prayed for restoration of custody of both the children, who are under the control and custody of the petitioner.
The respondent filed a criminal complaint on 10.07.2012 before Women Cell at Chandigarh under Protection of Women from Domestic Violence Act.
Another petition under Section 125 Cr.P.C.is pending before the District Judge at Chandigarh.
Vide order dated 26.10.2012, the learned Court directed the petitioner to pay Rs.13,500/- per month as an interim maintenance to the respondent.
The revision petitioner filed a divorce petition under Section 13(1)(i)(a) of Hindu Marriage Act, 1955 which is pending in a Court at Rohini, Delhi.
Thereafter, the respondent filed a transfer petition (c) No.223 of 2013 before the Hon'ble Supreme Court for transfer of divorce petition.
The respondent also lodged an FIR No.76 of 2013 under Section 498-A, 406 IPC against the petitioner and his family membeRs.The petitioner on receipt of summons to appear before the Guardian Judge, Chandigarh appeared in Court and filed written statement.
Thereafter, the petitioner filed two applications under Section 7 Rule 11 C.P.C.challenging territorial jurisdiction of the court and praying Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 3 for return of the petition to the respondent on the ground of non- compliance of mandatory provisions of Section 10(3) of the Guardians and Wards Act, 1890 (hereinafter referred to as the `Act').Vide the impugned order dated 25.05.2013, learned Guardian Judge has dismissed both the applications.
Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
In the application filed under Order 7 Rule 11 CPC, the petitioner challenged the territorial jurisdiction of the Guardian Judge at Chandigarh to entertain and decide the petition under Section 25 as the same was hit by Section 9 of the Act.
It was claimed that both the minot children are ordinarily residing and Studying in Delhi as the minot children have been left by the respondent/mother, in a very callous and indifferent manner.
The second application was moved by the petitioner under Order 7 Rule 11 CPC for return of the plaint to the respondent on the ground of non-compliance of mandatory provisions of Section 10(3) of the Act.
Thus, the question of jurisdiction and non-compliance of mandatory provisions of Section 10(3) of the Act have been raised by the petitioner before the Guardian Judge.
With regard to the point of jurisdiction in the impugned order, it has been observed that in view of the law laid down by the Hon'ble High Court, the Guardian Court has territorial jurisdiction to decide the petition.
On the second application relating to non-compliance of mandatory provisions of the Act, the trial court has observed that if some procedural defect is there in the petition Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 4 filed by the applicant, the same can be allowed to be corrected by the applicant but on this technical ground, applicant cannot be non-suited.
Learned counsel for the petitioner vehemently contended that the trial Court has no territorial jurisdiction to entertain the original petition and proceed with the matter as the respondent admits in her petition that both the children are residing at Delhi.
As per Section 9(1) of the Act, 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 minot ordinarily resides.
The learned counsel argued that the actual residence of the minors in this case is in Delhi, as such, the order passed by the Guardian Judge at Chandigarh is without jurisdiction.
In order to establish that the children are residing at Delhi, he referred to Annexures P/7 and P/8, School Certificates issued by Presidium School, Delhi Learned counsel further contended that the respondent has not complied with the mandatory provisions of Section 10(3) of the Act.
Learned counsel for the respondent has opposed the contentions raised by the learned counsel for the petitioner and submitted that the impugned order passed by the learned trial Court is legal and valid.
The applications have been moved only to delay the proceedings of the case.
The children were taken from Chandigarh fraudulently by the petitioner.
I have considered the rival contentions raised by the learned counsel for the parties.
The short question which is required to be determined in the Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 5 present case is whether prima facie the Guardian Judge, Chandigarh, is vested with jurisdiction to decide the petition for the custody of the minot children under the Act, when controveRs.has been raised by the petitioner that the minot children, whose custody is claimed, are residing at Delhi.
As both the parties, on the basis of the documents available with them, are controverting each other regarding the existence of children at present at Delhi, it will not be prudent to pre-judge the issue of jurisdiction by giving a finding on appreciation of evidence qua residence of the children.
The rights of the parties will be prejudiced in case the issue of jurisdiction, which in the present case, seems to be an issue of fact and law is decided by this Court.
The said issue as framed, has to be determined in the peculiar facts and circumstances of the case, taking into consideration the provisions of Section 9 of the Act, 1890, in context with the relevant provisions of other procedural laws.
Section 9 of the Guardians and Wards Act, reads 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 minot ordinarily resides.
(2) If the application is with respect to the guardianship of the property of minor, it may be made either to the District Court having jurisdiction in the place where the minot 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 Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 6 property of a minot is made to a District Court other than that having jurisdiction in the place where the minot 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.”
A perusal of Section 9 indicates that it contemplates the territorial jurisdiction of the Court in the matter of Guardianship application.
Firstly, when the application is in respect of the person of a minor, it is to be filed in the Court under whose territorial jurisdiction, the minot ordinarily resides.
Secondly, if application relates to the property of the minor, there are two forums and the applicant may choose any of them, namely, the Court under whose territorial jurisdiction, the minot ordinarily resides or under whose territorial jurisdiction minot has property.
But when in property application, the applicant chooses the fiRs.forum, namely, the residence forum, the District Court of the place may return the plaint, if the Court considers that the application would be disposed of justly and conveniently by some other Court.
It is pertinent to observe here that there is nothing in the Guardians and Wards Act, forbidding the applicability of Civil Procedure Code to proceedings under this statute.
Section 4(1) of CPC reads as follows:- “4.
Savings.
- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law not in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 7 the time being in force.”
Learned counsel for both the parties agree that the question whether provisions of CPC, are applicable in proceeding under Guardians and Wards Act, is not being raised in this revision, as such, it is left open.
What is required to be determined in the present case is whether in the circumstances of this case it can be said that on account of the children being ordinarily residing at Delhi, the Guardian Court at Chandigarh, will have no jurisdiction.
Section 9(1) makes it clear that it is the ordinary place of residence of minot 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 application.
The term 'residence' is an elastic word of which an exhaustive definition cannot be given.
It is differently construed according to the purpose for which enquiry is made into meaning of the term.
The sense in which it should be used is controlled by reference to the object.
A reasonable meaning of 'residence' would mean dwelling in a place for some continuous time.
The word 'ordinarily resides' in sub Section 1 of Section 9 may include a temporary residence, if minot is residing of such therein for considerable length of time.
Word “ordinarily resides”.
would mean a regular, normal, a settled home or a regular place of abode, which can be distinguishable from a temporary or a forced stay.
If a minot child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document CR No.3990 of 2013 (O&M) 8 'ordinarily resides.' The respondent has in her petition for the custody of the children specifically mentioned and actually admitted that the children have been taken to Delhi.
She also explained the circumstances in which the younger child namely Achint was taken away by the petitioner by giving threats to the life of the respondent and her family members and not both the children are living with the petitioner against the wishes of the respondent.
In Manot Aggarwal and another versus Smt.
Sushma Aggarwal and another, AIR 200.Uttaranchal, 9, the Hon'ble Uttaranchal High Court in context of provisions of order 7 Rule 11(d) of the Code of Civil Procedure, has observed that the issue of jurisdiction is to be decided on the basis of the averments contained in the plaint etc.Similar view has been expressed by this Court in Parshant Chanana versus MRS.Seema alias Priya in C.R.No.2027 of 2009, decided on 27.07.2009.
In the present case, the petition filed by the respondent cannot be rejected under Order 7 Rule 11(d) of the Code because from the averments made in the petition, it does not prima facie appear to be barred by any law.
In view of the above, I do not find any illegality or perversity in the impugned order.
Dismissed.
August 31, 2013 [ Paramjeet Singh ].vkd Judge Kumar Virender 2013.09.06 09:11 I attest to the accuracy and integrity of this document