K.C. Sashidhar Vs. Roopa - Court Judgment

Excerpt:
guardian & wards act, 1890 (central act no. 8 of 1890) - section 9 - 'ordinarily resides': connotation - minor child of tender age: construed as place where mother resides before petition.; invariably, a minor child that too at the age of 10 to 11 months is expected to be with the custody of the mother. so the words 'ordinarily resides' should be construed as the place where the mother resides before the presentation of the petition. - karnataka transparency in public procurements act, 1999 (29 of 2000) section 13: [n.k. patil,j] rejection of tender - tenders invited for running canteen tender notification specifically requiring that applicants shall submit their applications in two cover system - petitioner applicant did not submit technical bid - non-compliance of basic requirement.....ordervasanatha kumar, j. 1. this petition is directed against the order dated 4-2-92 passed in g & w5/91.2. a few facts briefly to state are that the petitioner is the wife and the respondent is the husband in the court below. it is an admitted fact that the petitioner and the respondent got married at mysore and thereafter they started marital life at bombay. the petitioner came to mysore, her parental home, in the year 1990 for her confinement and the child was born at mysore. it is an admitted fact that the wife along with her child went to bombay to reside with her husband; while they were living at bombay, it is the case of the wife that while she was residing with her husband, she was driven out of the house along with her mother and the custody of the child was not given to her as.....

Judgment:
ORDER

Vasanatha Kumar, J.

1. This petition is directed against the order dated 4-2-92 passed in G & W5/91.

2. A few facts briefly to state are that the petitioner is the wife and the respondent is the husband in the Court below. It is an admitted fact that the petitioner and the respondent got married at Mysore and thereafter they started marital life at Bombay. The petitioner came to Mysore, her parental home, in the year 1990 for her confinement and the child was born at Mysore. It is an admitted fact that the wife along with her child went to Bombay to reside with her husband; while they were living at Bombay, it is the case of the wife that while she was residing with her husband, she was driven out of the house along with her mother and the custody of the child was not given to her as such the circumstances warranted her to seek the intervention of the Court for the custody of the child. A Preliminary objection has been raised regarding the maintainability of the Petition on the ground that the child was not residing at Mysore, as on the date of the presentation of the Petition.

3. It is submitted that since the child was residing with the father, the jurisdictional court would be at Bombay and not at Mysore. So, the arguments centre round about as to what is to be construed to the word 'ordinarily resides'. Section 9 of the Guardians and Wards Act, 1890 reads thus:

'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.'

in JEEWANTI v. KISHAN, 1982(1) KLJ Sh.N. 13 Item No. 35 the Supreme Court in a matter arising out of Hindu Marriage Act, has dealt regarding the scope of the word 'ordinarily resides', it is held:

'That the word 'resides' must mean the actual place of residence and not a legal or constructive residence, it certainly did not connote the place of origin. It was the actual residence of the wife at the commencement of the proceedings that had to be considered, for jurisdiction.'

4. Invariably, a minor child that too at the age of 10 to 11 months is expected to be with the custody of the mother. So the words 'ordinarily resides' should be construed as the place where the mother resides before the presentation of the Petition. It is an admitted fact that, in the instant case, the mother was residing at Mysore when she presented the Petition at Mysore seeking custody of the child. Further, it is to be noted that she has alleged in her Petition circumstances under which the child was forced to be left in the custody of the father. When such is the case, the place of residence has to be construed as the place where mother resided before presenting the Petition. In view of that, the finding given by the Court below that the Petition filed by the petitioner, namely the mother, at Mysore, having jurisdiction does not suffer from any legal infirmities. In MST. FIROZA BEGUM v. AKHTARUDDIN LASKAR, AIR 1963 Ass 193 wherein the Assam High Court observed;

'It is contended by Mr. Ghose that the expression 'ordinarily resides', does not mean casual or factual residence of the minors at the time of the application being made, and that normally the residence of the minor should be taken as the place where the legal guardian is residing.... That the expression 'where the minor ordinarily resides' appears to have been deliberately used to exclude 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, and that the phrase 'ordinarily resides' indicates ordinary residence even at the time of the presentation of the application under Section 25 of the Act, and that the emphasis is undoubtedly on the minor's ordinary place of residence.'

5. In the instant case, since the child is of tender age, the legal guardian would be the mother and the place of her residence, on the date of the presentation of the Petition, is the place where it is to be construed as the minor 'ordinarily resided' and as such the finding arrived at by the Court-below does not suffer from any legal infirmities. Hence the circumstances do not warrant interference of this Court in exercise of its power under Section 115 of the C.P.C. Accordingly, this C.R.P. is dismissed. No costs.