Bharat Vats vs Garima Vats

Valmiki J Mehta, J.

CM No. 6981/2011(exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

FAO No. 177/2011

The challenge by means of this appeal is to the impugned order dated 19.2.2011 which has dismissed the petition of the Petitioner for want of territorial jurisdiction in view of the Section 9 of the Guardian and Wards Act, 1890 as per which the petition ought to have been filed where the minor ordinarily resides, and, the minor was ordinarily found to be residing with the Respondent/mother at Noida in UP.

Minor child was born on 14.11.2008 in USA. After the parties came to India, they resided originally at the house of the Petitioner in Delhi, however subsequently, the mother on account of ill treatment was forced to leave the matrimonial home along with the minor child and has thereafter been living in Noida since 4.6.2009.

The learned Counsel for the Appellant contends that the mother has illegally taken away the child from the matrimonial home at Delhi and therefore the Court at Delhi has jurisdiction. This aspect has been dealt with by the Trial Court in the following portion of the impugned judgment:

The Respondent has been staying at her mother''s residence at Noida continuously since 4.6.2009 along with the minor child Master Kapil. The child is reported to be aged about 2 1/2 years and studying in Mother''s Pride Play School at Noida. The Respondent has stayed at her matrimonial home for less than one month due to their constrained relations. The child has been living in the company of Respondent at Noida after the parties came from U.S.A. The Petitioner filed the present petition u/s 25 of The Guardians and Wards Act for custody of minor child Kapil Vats on 15.9.2010. The Petitioner has given Respondent''s address at Noida in his petition. The petition has been filed by the Petitioner for seeking custody of the minor child after a period of more than one year from the date when the Respondent finally left her matrimonial home along with the minor child. It is an admitted case of the parties that the Respondent has been residing at her parental home since February, 2009. Thus, the ordinary place of residence of minor is Noida and not Delhi.

This is not the case of the Petitioner that the child was stealthily removed or kidnapped by the Respondent in order to oust the jurisdiction of the court. The Respondent has been forced to live at her parental home due to the constrained relationship with the Petitioner. The Respondent is also reported to be working in Noida. The child has been in the care and custody of the Respondent continuously since 4.6.2009 when the Respondent finally left matrimonial home. On analysis of the pleadings of the parties and the material brought on record shows that the ordinary place of residence of the minor child is Noida and not Delhi.

I completely agree with the observations of the Trial Court because this is not the case where the child has been stealthily removed or kidnapped by the Respondent to oust the jurisdiction of the Court. The entire object of Section 9 of the Guardians and Wards Act, 1890 is to see that welfare and convenience of the minor child is the most important aspect and therefore it is at the place where the minor ordinarily resides that a guardian petition has to be filed. I therefore do not find any illegality or perversity in the impugned order which calls for interference by this Court in this appeal on the ground that the Courts at Delhi had no territorial jurisdiction.

Learned Counsel for the Appellant then argues that earlier an application filed on similar grounds was withdrawn and therefore the Respondent could not file the similar application. At the first blush this argument may appear attractive, however, parties cannot confer jurisdiction on the Court, when the Court has none. This is all the more so in the Guardianship cases where the welfare of the minor is of prime importance and a specific statutory mandate is contained in Section 9 that a petition can only be filed where the minor ordinarily resides. The convenience to be seen is neither of the mother nor of the father but of the minor child, in view of the Section 9. In any case, there is no concept of application of res judicata or issue estoppels with respect to interim applications, more so on the issue of territorial jurisdiction.

I find that the present appeal obviously is malafide because it seeks to harass the Respondent and the minor by dragging them to Delhi although their ordinary residence is at Noida. Disputes between the parents should not result in the welfare of the minor child being affected, and which is probably attempted to be done by means of the subject petition and the present appeal.

Appeal therefore being without merits is accordingly dismissed.

In my opinion, the Trial Court instead of dismissing the petition ought to have returned the petition for presentation to the appropriate Court and therefore when I put it to the counsel for the Appellant that I propose to modify the order by directing return of the petition instead of rejection of the petition, however, counsel for the Appellant states that he is not making any prayer in this regard for modification of the order which has dismissed the petition. In view of the appeal being devoid of merits is therefore dismissed, leaving the parties to bear their own costs.

CM No. 6980/2011(for direction)

Since the main appeal has been disposed of, this CM is also disposed of having become infructuous.