Full Judgment
T.P.S. Mann, J.
1. Parties to the appeal got married on 1.5.2001. From this wedlock, twins, namely Hardik alias Hari Om and Harshit alias Shiva were bora on 31.12.2001. The matrimonial ties between the parties, however, worsened, resulting in the respondent getting a criminal case initiated against the appellant and his family members under Sections 406 and 498-A I.P.C. From 18.8.2006, the respondent started living at her parental house at Jalandhar along with one of her minor son Hardik alias Hari Om while the appellant continued to live with his other minor son Harshit alias Shiva at Hoshiarpur.
2. The appellant filed a petition under the Guardian and Wards Act, hereinafter referred to as 'the Act', at Hoshiarpur so as to obtain the custody of his minor son Hardik alias Hari Om, who according to him, was removed by the respondent from his custody in an unlawful and illegal manner. The petition was opposed by the respondent by pleading that the Guardian Judge at Hoshiarpur had no jurisdiction to try and decide the same as she along with her minor son Hardik alias Hari Om was ordinarily residing at Jalandhar.
3. From the pleadings of the parties, learned trial Court framed the following issues:
1. Whether the petitioner is entitled for custody of the minor son as prayed for? OPP
2. Whether the Guardian Judge at Hoshiarpur has no jurisdiction to try and entertain the present petition? OPR
3. Relief.
4. An application was thereafter moved by the respondent for treating and deciding issue No. 2 as a preliminary one. This application was opposed by the appellant. After hearing learned Counsel for the parties, learned Guardian Judge, Hoshiarpur came to a conclusion that the Civil Court at Hoshiarpur had no jurisdiction as the ordinary, place of residence of the minor in question was Jalandhar where he was residing at that time with his mother and, therefore, the Guardian Judge, Jalandhar had the jurisdiction to try and entertain the petition. Accordingly, the petition was ordered to be returned to the appellant for presenting it before the Court of competent jurisdiction. Aggrieved of the same, the appellant has filed the present appeal under Section 47 of the Act.
5. I have heard learned Counsel for the parties and perused the impugned order.
6. The issue in the present appeal relates to jurisdiction of the Guardian Judge at Hoshiarpur. Admittedly, the respondent along with her minor son Hardik alias Hari Om is residing at Jalandhar at her parents house. It is also a fact on account of certain differences with the appellant, the respondent left the matrimonial home at Hoshiarpur on 18.8.2006 and while proceeding to her parental house at Jalandhar, she took her minor son, namely, Hardik alias Hari Om with her.
7. Section 9 of the Act provides that any application with regard to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides in unmistakable terms that the mother as against the father is entitled to the custody of the child upto the age of five years. In such a situation, the ordinary place of residence of a minor below the age of five years would be the one where his/her mother resides. It is an admitted fact that Hardik alias Hari Om was born on 31.12.2001. It was on 18.8.2006 when Hardik alias Hari Om was less than five years of age that the respondent left the matrimonial home so as to stay at her parental house and while doing so she took Hardik alias Hari Om along with her. It cannot be, thus, said that Hardik alias Hari Om had been removed by the respondent to Jalandhar or that Jalandhar was not his ordinary place of residence. Whether the respondent was forced to leave the matrimonial home at Hoshiarpur or she left that place without any sufficient cause would be a matter to be adjudicated upon by the competent court in appropriate proceedings but it cannot be said that the respondent was staying at Jalandhar with the sole motive of denying jurisdiction to the Guardian Judge/Court at Hoshiarpur to try and entertain the petition filed by the appellant for seeking the custody of the minor son, namely, Harik alias Hari Om. Jalandhar is the place where her parents reside and this fact is not disputed. If she had taken the minor son to some other place which was neither connected with her nor with her husband, the appellant would have been justified in saying that the minor son had been knowingly removed so as to deny the right of adjudication by the Guardian Court at Hoshiarpur.
8. In Sarbjit v. Piara Lal and Ors. , it was held that the expression 'where the minor ordinarily resides', has to be interpreted to mean the residence of the mother. In other words, the residence of the minor would follow the residence of the mother. In Lekha v. P. Anil Kumar : 2006(12)SCALE163 , the Hon'ble Apex Court held that only guardian of a minor child after the age of six years is the father. In other words, before the child attained the age of six years, no objection could be raised regarding his residence with the mother.
9. In Smt. Anju Bala v. Vipin Oberio , the Court while dealing with a matter under Section 9 of the Act, held that the courts at Jagadhri did not have any jurisdiction to entertain the petition filed by the respondent-father and such a petition for custody of the minor was maintainable only with the Courts at Faridabad where the minor was residing with his mother.
10. Learned Counsel for the appellant has placed reliance on Amal Saha v. Smt. Basana Saha A.I.R. 1988 Gau 22 and Konduparthi Venkateswarlu and Ors. v. Ramavarapu Viroja Nandan and Ors. : AIR1989 Ori151 , to contend that a temporary residence at a particular place or residence by compulsion at a place, however long, could not be treated as the place of ordinary residence. As the parties had been ordinarily residing at Hoshiarpur, therefore, the Guardian judge at Hoshiarpur had the jurisdiction to entertain and try the suit, but the respondent had wrongly pleaded that only the Court at Jalandhar had the jurisdiction. In both the aforementioned judgments, it was held that the minor had been stealthily removed to a distant place and, therefore, the application for the custody of the minor could be filed within the jurisdiction of the District Court from where he had been removed, or, in other words, the place where the minor would have continued to remain, but for his removal. However, in the present case, the respondent had not stealthily removed the minor to Jalandhar. She had started living at Jalandhar in her parental house since 18.8.2006. While leaving the matrimonial home at Hoshiarpur, she took her minor son, namely, Hardik alias Hari Om with her. Accordingly, the District Court at Jalandhar would have the jurisdiction.
In view of the above, there is no merit in the present appeal which is, accordingly dismissed.