Dandu Sridhar Vs. Pothamashetty Padma Priya and ors. - Court Judgment

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family - jurisdiction of court - sections 9 (1) and 25 of guardian and wards act, 1890 - petitioner applying for custody of minor against wife in district court from his place of stay - section 9 (1) stipulates application of guardianship to be made in district court where 'minor ordinarily resides' - jurisdiction of court to be decided by application of statutory test of original residence of minor - held, no illegality in impugned order returning plaint directing presentation of petition before appropriate court. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 19. evidently, to invoke the provision of section 25, two limbs must be satisfied. 20. apart from that, section 6 of the hindu minority and guardianship act, 1956 mandates that the natural guardian of a hindu minor in respect of the minor's person as well as in respect of the minor's property, in the case of a boy or an unmarried girl, the father and after him, the mother;e. dharma rao, j. 1. aggrieved of the order dated 17.10.2003 passed in i.a. no. 414 of 2003 in o.p. no. 2 of 2003 by the judge, family court, hyderabad, filed under section 9(1) of the guardians and wards act, 1890 read with section 151 of the code of civil procedure for dismissing the op for want of jurisdiction to the petitioner - husband to file the o.p., the original petition filed by the husband -petitioner herein under section 6 of the hindu minority and guardianship act, 1956 read with section 25 of the guardians and wards act for the custody of the minor, was returned to him for presentation before the proper court, the husband petitioner preferred this civil miscellaneous appeal contending that the court below has erred in entertaining the application under section 9(1) of the guardians and wards act filed by the respondents herein i.e., mother and maternal grand parents of the minor particularly when the original petition was filed under section 25 of the guardian and wards act, that the court below has erred in returning the application when since none of the circumstances enumerated under section 9(1) of the guardians and wards act is fulfilled.2. the factual matrix in a narrow compass is that the petitioner herein filed op no. 2 of 2003 under section 6 of the hindu minority and guardianship act read with section 25 of the guardian and wards act seeking the custody of the minor against the wife - first respondent herein and his in-laws respondents 2 and 3 herein. while the matter was thus pending, the first respondent - wife filed petition in ia no. 414 of 2003 with a prayer to dismiss the main petition for want of jurisdiction to the petitioner -husband to file the petition at hyderabad.3. the said petition was resisted by the petitioner herein.4. admittedly, the wife filed op no. 136 of 2002 before the court below under section 13(1)(ia) and (b) of the hindu marriage act against her husband, which was referred to lok adalath and an award was passed on 7.10.2002 granting divorce between the parties imposing certain conditions with regard to the intermittent custody of the minor. subsequently, the lok adalath modified the award by order dated 15.11.2002 regarding the intermittent custody of the minor.5. it is the contention of the first respondent herein that as contemplated under section 9(1) of the guardians and wards act, the relief claimed in the main petition has to be agitated in such court within which jurisdiction such minor ordinarily resides and therefore, the court below had no jurisdiction.6. the court below after hearing both the sides observed that viewed from any angle, it had no jurisdiction to entertain the petition filed for custody of the minor and, therefore, ordered to return the main o.p. to the petitioner herein for presentation before the proper court, vide impugned order.7. it is this finding of the court below, which is under challenge in this appeal.8. mr. s. surender rao, the learned counsel appearing on behalf of the appellant - husband/father of the minor attacked the impugned order on the ground that the return of op no. 2 of 2003 is contrary to law, facts and weight of evidence, the court below erred in entertaining the application filed under section 9(1) of the guardian and wards act, that the court below ought to have seen that the petition was filed under section 25 of the guardian and wards act and section 9 of the said act has no application to the facts of the case, that under section 9(1) of the act no family court has the jurisdiction to entertain the application and the return of the petition was contemplated only under the circumstances enumerated under section 9(3) of the act, that the court below ought to have seen that the appellant being natural guardian is entitled to file an application at hyderabad to which place he belongs and that the proceedings for divorce were instituted in the family court at hyderabad and, therefore, the impugned order is illegal and liable to be set aside.9. as can be gathered from the material placed on record before this court, op no. 2 of 2003 was filed seeking a direction to the respondents 1 to 3 herein to deliver the custody of the minor child deeksha, to the appellant herein, in view of her welfare. the facts leading to the filing of the said op in narrow compass are that the marriage between the appellant - husband and the first respondent wife was solemnized on 18.9.1996 at chittoor in accordance with the hindu rites and customs, thereafter, the couple lived together at hyderabad for about two months. thereafter, the first respondent left for bangalore to her parents house i.e., respondents 2 and 3 herein. during the stay at hyderabad, the first respondent conceived and delivered a female baby on 25.10.1997 named deeksha at bangalore and the appellant was away from india on employment at dubai and came back to hyderabad, after three months and the first respondent joined him at hyderabad and stayed for some time along with the minor child and again left for bangalore. thereafter, she planned to go to usa and was trying to get visa. in order to get marriage certificate, she insisted the appellant to accompany her to usa, as it is condition precedent to get visa, the first respondent has to produce marriage certificate to go abroad. accordingly after obtaining marriage certificate she left for usa in the month of may, 1999, without even informing him. at that time the minor baby was one and half years old and thus she neglected the baby and left at the mercy of her maternal grand parents i.e., the respondents 2 and 3 herein. it is further stated that whenever, the appellant tried to see his daughter, at bangalore, the respondents 2 and 3 did not permit him. while the things stood thus, the appellant got employment in los angles in the month of february, 2000. by that time, the first respondent was planning to marry some other person. the appellant's father filed gop no. 49 of 2001 before the principal district judge, chittoor, seeking appointment of guardian for the minor child during the appellant's stay at usa, but the first respondent persuaded the appellant stating that she is interested to stay with the appellant and to withdraw the above said o.p. believing the same, the appellant wrote letter dated 14.1.2002 and his father withdrew the said op on 6.2.2002 by filing a memo. thereafter, the first respondent filed op no. 136 of 2002 seeking divorce for false and frivolous allegations through her general power of attorney i.e., father. meanwhile, she also filed a case before california court and got an order of dissolution of marital status with effect from 31.10.2002 and on 17.2.2002 on the consent given by the appellant, the matter was referred to lok adalath and an award was passed granting divorce and giving visiting rights and interim custody of the minor baby to the appellant and his parents and to spend some time with her. when these directions of the lok adalath were flouted by the respondents 2 and 3 at bangalore, the appellant, under the authority of the earlier order dated 7.10.2002, passed by the lok adalath, approached the lok adalath for modification of the order passed in op no. 136 of 2002. after considering the facts and circumstances of the case, the lok adalath modified the order on 15.7.2002 restricting the relief in the earlier order to the effect of divorce only and the petitioner was given a right to approach competent court for custody of his child under section 6 of the hindu minority and guardianship act, 1956.10. along with counter, the general power of attorney of the first respondent filed i.a. no. 414 of 2003 praying to dismiss the op on the ground of non-maintainability of the op in view of the fact that the family court at hyderabad has no jurisdiction.11. having regard to the facts and circumstances of the case the family court observed that the hindu minority and guardianship act, 1956 nowhere mentions as to where the petition relating to the controversy has to be filed. but as per section 9(1) of the guardians and wards act, 1890, the application with respect to the guardianship of the minor has to be made before the district court having jurisdiction in the place where such minor ordinarily resides. according to the version of the respondents the minor is a resident of bangalore and, therefore, under section 9(1) of the act, the petition has to be filed before the court having jurisdiction over the place where the minor has resided i.e., bangalore and not before the family court, hyderabad. observing so, the court below held that it has no jurisdiction to entertain the o.p. and thus returned the petition for presentation before appropriate court.12. originally, the father of the appellant filed g.o.p. no. 49 of 2001 before the district court, chittoor, for the custody of the minor child, which was subsequently withdrawn. further op no. 136 of 2002, filed by the first respondent for grant of divorce, was referred to lok adalath and a decree of divorce was granted with visitation rights to the appellant and his parents and when the said decree did not workout, the appellant got it modified by filing a petition before the lok adalath and on the liberty given by the lok adalath, the appellant filed op no. 2 of 2003 for the custody of the minor.13. the provisions of law covering the arena of controversy will be presently discussed. sub-section (3) of section 4 of the guardian and wards act defines ward to mean a minor for whose person or property, or both, there is a guardian. sub-section 4 hereof defines district court to mean as assigned to that expression in the code of civil procedure and includes a high court in the exercise of its ordinary original civil jurisdiction. sub-section (5) which deals with district court defines district court having jurisdiction to entertain an application under this act for an order appointing or declaring a person to be a guardian.14. section 25 of the act contemplates the title of guardian to the custody of ward. it says that if a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian.15. a look at section 9(1) of the guardian and wards act, 1890 is also relevant for the purpose of deciding the jurisdiction for filing the petition. section 9(1) deals with the court having jurisdiction to entertain the application. it mandates that 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.16. a combined reading of the provisions of sub-section (1) of section 9(1) and section 4(5)(a) and 4(5)(b)(ii) is that an application with respect to the guardianship of the person of a minor or any matter pertaining to the person of the minor for whom no guardian has been appointed, should be made to the district court having jurisdiction in the place where the minor ordinarily resides. the words ordinarily resides is not defined in the act. the oxford dictionary defines it to mean dwelling permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place. in the instant case, though the minor has not permanently resided, she resided at bangalore for considerable time along with the maternal grand parents, even as per the admission of the appellant. the kerala high court in t.j. chandy v. mary baneena, (1988) 2 hlr 436, has held that it is not the place of residence of the natural guardian that gives jurisdiction to the court under section 9(1), but it is the place of ordinary residence of the minor and the legislature has designedly used the words where the minor ordinarily resides. hence, the actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides.17. in order to give the court jurisdiction both for the purpose of appointment of a guardian under sub-section (1) of section 9 and for the purpose of an order under section 25, the minor must be ordinarily resident within the local limits of the jurisdiction of that court.18. as per section 25 of the act, the expression court which has been defined to mean the district court having jurisdiction to entertain an application under the act for an order appointing or declaring a person to be a guardian. under section 9(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. therefore, the legislature has statutorily defined the court for the purpose of section 25 as the district court having jurisdiction in the place where the minor ordinarily resides. the legislative tests of the court, which has jurisdiction in the matter is the court where the minor ordinarily resides and not the court where the father resides and with whom the minor must be deemed to have been in constructive custody. if the application is made immediately after the removal from the father's custody, the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. similarly, if there are two places where it could be held that the minor was ordinarily residing, the question would be one of convenience because the legislative test would be fulfilled and the question cannot be decided on presumptive legal or construction custody but by application of the statutory test of the ordinary residence of the minor.19. evidently, to invoke the provision of section 25, two limbs must be satisfied. firstly, either the ward should leave or is removed from the custody of the guardian of his person and secondly, the court should come to a conclusion, in the welfare of the ward to return to the custody of the guardian, it may make an order of return of the ward to his custody. admittedly, in the present case, the minor baby deeksha, was born at bangalore and for a short while, after the return of appellant from dubai, she was at hyderabad and thereafter she was taken back to bangalore, even after the first respondent left for usa in search of employment, the minor was in the custody of her maternal grand parents i.e., respondents 2 and 3 at bangalore. the fact that the father of the appellant filed op no. 49 of 2001 for the custody of the minor before the district judge, chittoor, further substantiate that the minor was never in the custody of the appellant or that she was removed from the custody of the appellant, nor did she reside at hyderabad, to invoke the jurisdiction of the family court at hyderabad, nor particularly when it is not the contention of the appellant that the minor child originally was in the custody of the appellant or that she was removed from his custody. thus, the question of the appellant invoking the jurisdiction of the family court at hyderabad does not arise.20. apart from that, section 6 of the hindu minority and guardianship act, 1956 mandates that the natural guardian of a hindu minor in respect of the minor's person as well as in respect of the minor's property, in the case of a boy or an unmarried girl, the father and after him, the mother; provided that the custody of minor who has not completed the age of five years shall ordinarily be with the mother.21. admittedly, the minor herein is unmarried girl and by the time the lis with regard to her custody started, she was aged below five years, therefore, in terms of sections 6 and 13 of the hindu minority and guardianship act, 1956, it is the welfare of the child which should be given paramount consideration while giving custody of the child. when such is the age of the minor, paramount interest of child lies in giving custody to the mother. we are fortified in this view by a judgment of the supreme court in pushpa singh v. inderjit singh.22. therefore, having regard to the facts and circumstances of the case, we hold mat section 25 of the guardian and wards act does not get attracted inasmuch as the minor was never in the custody of the appellant nor she was removed ever from his custody. we further hold that as per section 9 of the said act the district court, having the jurisdiction over the place where the minor ordinarily resides, only can entertain the application. therefore, having regard to these facts and circumstances and the provisions of law, we are of the considered view that the court below has rightly returned the petition for presentation before appropriate court. we do not see any illegality in the impugned order warranting our interference.23. consequently, the civil miscellaneous appeal fails and is accordingly dismissed. no order as to costs.