Gautam Menon vs Sucharitha Gautam

Lakshmanan, J.—This petition is filed by the husband against his wife, the respondent herein, under Sections 3 and 25 of Guardians and

Wards Act, 1890 and Order 21, Rules 1 and 2 of Original Side Rules, read with Cl. 17 of Letters Patent, 1865 to direct the respondent to deliver

the minor children to the custody of the petitioner and for other reliefs. This petition was filed in this Court on 19.7.1990.

The respondent has filed a counter stating that this Court may not have jurisdiction to entertain this petition inasmuch as the children whose

custody is sought by the petitioner, are permanently residing at Coimbatore outside the ordinary original civil jurisdiction of this Court.

When the matter was taken up for hearing on the earlier occasion the Counsel for the respondent raised the very same objection and submitted

that this petition filed in this Court is not maintainable. According to the learned Counsel, the wife is permanently stationed at Coimbatore and she

was working in some firm and would find it very difficult to take leave from her employer, that the children are also studying at Coimbatore for the

last six years. Hence on the question of inconvenience of parties this Court may not have jurisdiction to entertain this petition.

Per Contra Mr. Kothandaraman, learned Counsel appearing for the petitioner submitted that this Court alone has jurisdiction to try the matters

like this and in support to his contention, learned Counsel for the petitioner placed before me the following decisions reported in.

Rajah of Vizianagaram v. Secretary of State AIR 1937 Mad 51

In re, Tarunchandra Ghosh, AIR 1930 Calcutta 598.

In re, Lovejoy Patell, AIR (31) 1944 Calcutta 433.

In re, Mahade Krishna Rupji AIR 1937 Bombay, 98.

Pamela Williams Vs. Patrick Cyril Martin, .

In Rajah of Vizlanagarm v. Secy, of State (1937) 44 L.W. 904 : AIR 1937 Madras 51 the Division Bench of this Court has held as follows :

Under Cl. 32 Letters Patent of 1800, the jurisdiction of High Court in regard to infants is plenary and is not subject to limitations as to person or

place. So the High Court can have jurisdiction over an infant though not of British birth and though residing outside limits of Presidency Town. But

supposing that the jurisdiction of the Supreme Court over infants was confined to British subjects of British descent, the moment direct control was

assumed by the Crown, every native of British India became ipso facto a British subject from that time onwards nothing could hinder the Supreme

Court from exercising jurisdiction over native Indian infants in the mofussil.

Clause 17 does not impose a condition the residence of the infant for the exercise of the jurisdiction thereunder. So a resident of Madras can

invoke the jurisdiction of the High Court for the protection of his parental rights and it is immaterial where the children are residing so long as they

are within the Presidency.

In Re: Tarunchandra Ghosh, learned single Judge of the Calcutta High Court has held as follows :

There is no restriction in the powers granted to either the Supreme Court or the High Court which limits the exercise of guardianship jurisdiction to

the town or to European British subjects, and even if any such limitation exists, it does not apply where person who is outside the limits of ordinary

original jurisdiction or who is not a European British subject desires to avail himself of the jurisdiction of the Court and there is no opposition

thereto.

In Re: Mahadeo Krishna Rupji, Re Manital Hurgovan, a minor, Manchand ILR 25 Bom.353 the Bombay High Court has held that the High

Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu Family and where the minor''s property is an

undivided share in the family property apart from the Guardians and Wards Act. It is further held that the Court has jurisdiction to sanction an

alienation by the father or the manager of a joint family where the Court was satisfied that the transaction was for the benefit of the minor. On the

general jurisdiction, and apart from the Guardians and Wards Act, the Bombay High Court following the Full Bench decision reported in 25

Bombay 353 held that the High Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu Family and

where the minor''s property is an undivided share in the family property, and the Court has jurisdiction to sanction an alienation by the father or the

manager of a joint family where the Court was satisfied that the transaction was for the benefit of the minor. In re Lovejoy Patell, AIR (31) 1944

Cal 433 a learned single Judge of the Calcutta High Court has held as follows :

The jurisdiction of the Calcutta High Court to appoint guardian of the persons and estates of minors is not limited to minors residing within its

ordinary original civil jurisdiction but extends to minors residing outside it but within the Bengal Division of the Presidency provided they are British

Subjects. In exercising the jurisdiction under Cl. 17 in the matter of appointment of a guardian of the person and estate of minor, the High Court

should follow the principles adopted by the Court of Chancery in England. This jurisdiction of the High Court has been expressly preserved by

Section 3, Guardians and Wards Act. This does not, however, mean that the High Court ignores the principles embodied in that Act. The

provisions of that Act in effect adopt the cardinal principles upon which the Court of Chancery in England used to act. Where the Act is silent or

the provisions thereof are contrary to or inconsistent with the principles of the Court of Chancery, the High Court in appropriate cases will act on

the principles on which the Court of Chancery in England would act in similar circumstances.

In Pamela Williams Vs. Patrick Cyril Martin, Division Bench of this Court by considering Clause 17 of the Letters Patent held as follows :

The jurisdiction of the Court is all embracing and wide under Clause 17 of the Letters Patent and it is not controlled by the restrictions imposed

and on the Court exercising jurisdiction under the Guardians and Wards Act.

The argument advanced by the learned Counsel for the respondent that hardship would be caused to his clients if they are asked to appear

before this Court and to contest the proceedings, cannot have any basis when the question of jurisdiction is involved in this case. As stated above

Clause 17 of the Letters Patent confers jurisdiction on this Court. When the question of jurisdiction is involved the question of convenience as

alleged by the respondent does not arise at all for any consideration. Hence I reject the arguments advanced by the learned Counsel for the

respondent and accept the arguments for the petitioner with regard to the jurisdiction. In my opinion all the decisions referred to above are directly

applicable to the facts and circumstances of this case. Respectfully following the above decisions I hold, that this Court has jurisdiction to try the

O.P. filed by the husband in this Court, for the custody of the minor children.