Mst. Firoza Begum vs Akhtaruddln Laskar

C.S. Nayudu, J.—This reference is made by the District Judge, Cachar at Silchar, before whom the guardianship proceedings were instituted and are pending. The learned District Judge points out that the Petitioner before him in the petition which was filed u/s 10 of the Guardians and Wards Act (Act'' 8 of 1890), hereinafter referred to as ''the Act'', is the mother of the two minor children. The petition was opposed before the learned District Judge, Silchar, by the father of the minors. It would appear from the reference that Misc. Case No. 29 of 1961 was before the Additional District Judge''s Court, Lower Assam Districts, at Gauhati, for the same relief, namely the appointment of a guardian of the person of the minors. This reference was accordingly mode u/s 14 of the Act.

Mr. Ghose, the learned Counsel for the father of the minors, the Petitioner before the District Judge at Gauhati, points out that as the proceedings were instituted by the father earlier, namely 21-3-1960, whereas the proceedings by the mother, in the District Judge''s Court at Silchar, were Instituted only on 11-12-1961 and that as the proceedings in the District Judge''s Court at Gauhati were instituted much earlier, that Court alone should be allowed to proceed with the matter.

He also points out that the Additional District Judge''s Court at Gauhati, recorded evidence in the case and had made some progress in the matter and that the request of the mother of the minors for having the proceedings transferred to the District Judge''s Court at Silchar was rejected by the District Judge, Gauhati.

The only point that requires to be considered in this reference is whether the proceedings should be allowed to continue in the District Judge''s Court at Silchar or in the Additional District Judge''s Court, Gauhati. In this connection, reference is required to be made to Section 9 of the Act, the relevant portion whereof is as follows:

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.

it is contended by Mr. Ghose that the expression "ordinarily resides does not mean casual or factual resi dence of the minors at the time of the application bein? made, and that normally the residence of the minor should be taken as the place where the legal guardian is residing. He placed reliance in the cases of Jhala Harpalsinh v. Bai Arunkunvar, AIR 1954 Sau 13; Chandra Kishore v. Smt. Hem lata Gupta, (S) All 1955 All 611 and Sarada Nayar Vs. Vayankara Amma and Others,

In AIR 1954 Sau 13, it is held that mere factual residence at a place at the time of the proceeding is not sufficient to give jurisdiction to the Court where such residence happens to be, and that the word ''ordinarily'' has been intentionally used to bring in considerations other than that of mere factual residence.

In Chandra Kishore and Another Vs. Smt. Hemlata Gupta, it was held that the words "ordinarily resides" obviously mean more than temporary residence, even though such residence is spread over a long period.

Again, in Sarada Nayar Vs. Vayankara Amma and Others, it was held 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 Hie presentation of the application u/s 25 of the Act, and that the emphasis is undoubtedly on the minor''s ordinary place of residence....

In the instant case, it is not disputed that the minors left with their mother to Siichar in the year 1957, and that the minus had been living with their mother ever since in Silchar. The application filed by the father in the Dislrict Court at Gauhati was only made on 21-3-1960, as already pointed out. It Is, therefore, clear that the minors had been residing at Silchar for a period of about three years prior to the making of the application. In the circumstances, we feel that the requirement of Section 9 of ordinary residence is satisfied in the case of Silchar, and it can be held without any difficulty that the minors had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. It is not the case of the father of the minors that the minors were taken away to Silchar for the purpose of avoiding the jurisdiction of the District Court at Gauhati, because the application in the District Court at Gauhati was made, as already pointed out, about three years after the minors had left for Silchar. In the circumstances, we feel that the only Court which could be said to have jurisdiction according to the language of Section 9 of the Act is the District Court at Silchar. We, therefore, consider that both under law and also in the interests of the minors, the proceedings for the- appointment of a guardian of their person should go on in the- District Court at Silchar, and the proceedings at District Court, Gauhati, should be transferred to the District Court, Silchar, for the further progress and disposal of the matter.

The reference is accordingly accepted, but there will be no order as to costs.