Bhagwati vs Pyarelal

P.V. Dixit, C.J.—This is an appeal under the Letters Patent from an order of Sen J., confirming an order made by the Additional District Judge, Datia, by which it was directed that the appellants should hand over the minor Om Prakash to the custody of his father, the respondent in this appeal.

The material facts are that the appellant Mst. Bhagwati is the second wife of the respondent Pyarelal. The other appellant is the father of Mst. Bhagwati. Mst. Bhagwati has two children, both boys, one aged 1 1/2 years and another of about six years of age. The respondent Pyarelal is a school teacher residing in Datia. It appears that for some time the respondent, his two wives and the two children from Mst. Bhagwati all lived together in Datia. According to the appellant Mst. Bhagwati, the respondent married her without disclosing to her the fact of his first marriage; that his first wife was ill-treating her and her children; and that, therefore, she left the respondent''s house and went to live with her father in Lalitpur. On 19th December 1957 the respondent Pyarelal made an application in the Court of the Additional District Judge, Datia, under Sections 8 and 9 of the Guardians and Wards Act for his appointment as the guardian of the person of the minors. On that application the Additional District Judge found after enquiry that it would be in the interest of the elder son Om Prakash that he should return to his father and that the interest of the younger son would be served if he was allowed to remain with his mother. Accordingly he made a direction for handing over the custody of Om Prakash to the respondent Pyarelal.

The learned Single Judge agreed with the conclusion and the reasoning of the Additional District Judge, Datia. He rejected the contention advanced on behalf of the mother that the Court of the Additional District Judge, Datia, had no jurisdiction to make any order for the return of Om Prakash to her husband as the minor was ordinarily residing with her in Lalitpur and that it was the Court of the Additional District Judge, Lalitpur, waich had jurisdiction to entertain an application u/s 9 or 25 of the Act- The learned Single Judge, following the decision of this Court in Vimlabai vs. Baburao AIR 1951 Nag. 179, held that the ordinary place of residence of the minor was Datia where his father resided.

In this appeal the only question raised is as to the jurisdiction of the Datia Court to entertain and adjudicate upon the respondent''s application under Sections 8 and 9 of the Act and to give him relief u/s 25. The appellants urged that as the minor children were living with them for nearly a year before the filing of the application by the respondent, they were ordinarily residing at Lalitpur and not at Datia.

In our opinion this contention must be given effect to. u/s 25 the Court which can make an order for the return of the ward to the custody of the guardian is the Court as defined in Section 4 (5) (a) of the Act. The Court, according to this provision, means the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian. Now, Section 9 of the Act says that an application with respect to the guardianship of the person of a minor should be made to the District Court having jurisdiction in the place where the minor ordinarily resides. It is thus clear that the Court competent to make an order u/s 25 or u/s 9 is the Court within whose limits the minor ordinarily resides. The question of the ordinary residence of the minor has to the determined as a fact in each case having regard to the concept and import of the term "ordinarily resides". It is not possible to give an exhaustive definition of the expression "oridnarily resides", but it is clear that it means more than a temporary residence. Ordinary residence is not determined solely by the consideration of the length of residence. The ordinary residence of a minor would be the place where he generally resides and is expected to reside but for a special circumstance or contigency For the purposes of Sections 9 and 25, what is material is the place of ordinary residence of the minor and not the place where he is actually residing at the time of making the application. Ordinary residence of a minor thus is a matter of fact and not a matter of presumstion or of any fiction. These principles are well settled by numerous decisions. (See Chimanlal vs. Rajaram ILR 1937 Bom. 348 ; Lakshman Morshet Mapuskar Vs. Gangaram Narayan Gudekar, , Lalita vs. Paramatma Prasad ILR 1940 All. 269. In the matter of Lovejoy Patell ILR 1943 (2) Cal. 554 and Vimlabai vs. Baburao, supra). We were referred to other cases by learned counsel for the parties. It is not necessary to refer to them as all of them are distinguisable on facts; but they all proceed on the footing that in order to give jurisdiction to the Court u/s 9 or 25, the minor must be ordinarily resident within the local limits of the Court''s jurisdiction and that the question of ordinary residence of a minor is a question of fact.

In the present case, the respondent himself stated in his deposition that the appellant Bhagwati and the minor children were residing in Lalitpur with Bhagwati''s father Brindabanlal for nearly a year They were no doubt originally living at Datia with the respondent Pyarelal. The fact that the minor Om Prakash was residing at Lalitpur with her mother for nearly a year before the filing of the petition by Pyarelal was not disputed before us. It is also in evidence that when the appellant Bhagwati came to her father''s house with the minor children she had no intention of returning to her husband. The ordinary residence of the minor Om Prakash was thus clearly at Lalitpur.

In coming to the conclusion that the minor was ordinarily residing at Datia, both the Additional District Judge and the learned Single Judge were overpressed by the observation in Vimlabai vs. Baburao (supra) that under the Hindu law the father is the natural guardian of his children and his children must be deemed to reside where he resides. A close and careful reading of the decision in Vimlabai vs. Baburao (supra) will show that in that case the minor''s ordinary residence was determined as a fact and not inferred on the principle that as the father is the natural guardian of his children, therefore they must be deemed to reside where he resides. This is clear from the discussion in the judgment about the meaning of ''residence'' and the evidence that was led in that case about the minor''s residence at Nagpur and Amravati. Mudholkar J. no doubt observed in that case that under the Hindu law the father is the natural guardian of his children and his children must be deemed to reside where he resided; but the decision in that case that the minor girl resided with her father at Amravati turned not on this principle but on the fact that she had been living in Amravati continuously for over a year with her father immediately before the making of an application by her mother u/s 10 of the Act. In that case it was also observed that while the minor stayed at Nagpur with her mother, the stay in charge of the mother would be deemed to be on behalf of the father who was her natural guardian. We do not read the decision in Vimja bai vs. Baburao (supra) as laying down the proposition that the question of ordinary residence of the minor or his custody under the Act should be determined with reference to the propositions that under the Hindu Law the father is the natural guardian of his children and, therefore, his children must be deemed to reside where he resides; and that if the mother is in charge of the children, then her custody must be regarded as on behalf of the father. On the language of Section 9 it is the place where the minor ordinarily resides and not the place where he is deemed to be ordinarily residing that is material. The father as the natural guardian is no doubt the legal custodian of his child, but u/s 25 the child is deemed within the meaning of the Section to be removed from his legal custody, if the person in whose actual possession the child is, repudiates to the father''s knowledge the right of the father to the actual or legal custody of the minor. It is easy to see that if the minor children were to be regarded as always residing with their natural guadian, the father, and the father were to be treated as always having the custody of the children, then there would be no occasion for adjudicating on any dispute as between husband and wife in regard to the ordinary residence of the minor or his custody.

In our view, in this case the minor Om Prakash had his ordinary residence within the jurisdiction of Lalitpur Court. That being so, the respondent''s application under Sections 8 and 9 of the Guardians and Wards Act in the Court of the Additional District Judge, Datia, was incompetent. The decisions of the learned Single Judge and of the Additional District Judge, Datia, are therefore, set aside. The trial Court shall return to the respondent his application for presentation to the proper Court- Parties will bear their own costs throughout.