R. Geetha vs A.T. Rajan

J. Ratnam, J.—The Civil Revision Petition is directed against the order of the learned District Judge, Ramanathapuram at Madurai in I.A

No. 36 of 1989 in O.P. No. 5 of 1987, holding that that court has jurisdic-tion to entertain O.P.No. 5 of 1987 filed by the respondent herein u/s

25(1) of the Guardian and Wards Act, VIII of 1890 (hereinafter referred to as ''the Act'').The petitioner and the respondent herein were married

on 3-9-1981 and a son was born to them on 6-6-1982 Misunderstandings having arisen between the petitioner and the respondent they are now

living apart. The petitioner is residing at Karumpalai No. 581 K.K. Nagar, Madurai while the respondent is living at No 19, L P. Shanmugam

Street, Virudhunagar. Having regard to the very Limited scope of the controversy between the parties in this Civil Revision Petition viz., the

jurisdiction of the District Court, Ramanathapuram at Madurai to entertain the petition in O.P. No. 5 of 1987, it is not necessary at this stage to

refer in extenso to the grounds upon which the respondent had sought to custody of the minor son Arun and the opposition to the same by the

petitioner. It would suffice, therefore, to refer to the stand of the parties in so far as the question of jurisdiction is concerned. In O.P.No 5 of 1987

filed by the respondent herein, he had stated in paragraph 8 that in the month of Avani, 1986, the minor son had a short stay with the family of the

respondent. Again, in paragraph 12 of the petition, the respondent had averred that the petitioner was forcibly brought by the Uravinmurai from

Madurai to Virudhunagar and that the petitioner went away after four days. What is significant is that in OP. No. 5 of 1987, the respondent had

not made any attempt whatever to state even such facts as would be relevant for a consideration of the question of jurisdiction of the District

Court, Ramanathapuram at Madurai to entertain the petition filed by him u/s 25(1) of the Act. However, in the counter filed by the petitioner in

O.P. No. 5 of 1987 in paragraph 3 she had taken the definite stand that eversince birth, the minor son had been residing only with her at Madurai

and therefore, the District Court, Ramanathapuram at Madurai, did not have jurisdiction to entertain the petition. In paragragh 11 of the counter,

the petitioner had also stated that she was taken along with the minor son to the house of the respondent on 17-8-1986 and then the respondent

cause a fracture to her hand and she was then taken back along with the child to Madurai on the fifth day. It is thus seen from the counter filed by

the petitioner that she had raised an objection to the jurisdiction of the District Court., Ramanathapuram at Madurai, to entertain the petition

consistent with the stand so taken, the petitioner filed I.A. No. 306 of 1989 praying that the issue regarding the territorial jurisdiction of the District

Court, Ramanathapuram at Madurai, to entertain O.P. No. 5 of 1987 should be tried as a preliminary issue. Even in the affidavit filed in support of

that application, the petitioner had stated that since birth, the minor bad resided continuously with her at Madurai and that at on point of time the

respondent had the custody of the minor, and, therefore the petition u/s 25(1) of the Act was not entertainable by the District Court,

Ramanathapuram at Madurai. In the counter filed by the respondent herein, he contended that the joint family properties are situate in

Virudhunagar and the natural place of residence of the minor is only Virudhunagar and that the custody of the minor by the petitioner is unlawful. It

was also further stated that the minor was forcibly removed by the petitioner and the Secretary of the Uravinmurai and that the jurisdiction of the

District Court, Ramanathapuram at Madurai cannot be ousted. In the reply filed by the petitioner, after referring to the birth of the minor son on 6-

6-82, she stated that from the date of birth, the minor son had been under her care and custody and that on the suggestion and advice of

respectable members of Virudhunagar Nadargal Uravinmurai, she went to the house of the respondent on. 17-8-1986 and the respondent made it

impossible for her to stay there and she was, therefore, taken back along with the minor son to Madurai and the temporary stay between 17-8-

1986 and 22-8-1986 cannot be equated to the ordinary residence of the minor, which from the date of his birth, was only at Madurai. The alleged

removal of the minor son, who was stated to be residing at Virudhunagar, was refuted and it was reiterated that the ordinary residence of the minor

was only at Madurai.

Before the court below on behalf of the petitioner, Exs. Al to A17 were marked, while, on behalf of the respondent, Ex. Bl alone was filed and

there was no oral evidence on either side. Without considering any of the documents filed by either side, the learned District Judge, by a very

curious process of reasoning based on the theory that the minor son was conceived in the house of the respondent at Virudhunagar and that the

minor, though he had remained with his mother, should be considered as having ordinarily resided at Virudhunagar, held that the District Court,

Ramanathapuram at Madurai, had jurisdiction to entertain O.P. No. 5 of 1987 filed by the respondent herein. It is the correctness of this that is

questioned by the petitioner in this Civil Revision Petition.

Learned Counsel for the petitioner, referring to Sections 4(4), 5(a) and 9(1) of the Act and Exs. A9 to A13 contended that eversince birth and

even thereafter, the minor son of the petitioner and the respondent had lived with the mother only at Madurai and that would be the place where

the minor ordinarily resided within the meaning of Section 9 of the Act for purposes of ascertaining the jurisdiction of the Court to entertain the

petition. Reliance in this connection was also placed upon the decisions reported in Harihar Pershad Jaiswal Vs. Suresh Jaiswal and Others, , Smt.

Jeewanti Pandey Vs. Kishan Chandra Pandey, , Bhagyalakshmi and Another Vs. K.N. Narayana Rao, and Aparna Banerjee Vs. Tapan

Banerjee, . On the other hand, learned counsel for the respondent, while accepting that there is no averment in the petition filed by the respondent

in O.P. No. 5 of 1987 to make out how the District Court, Ramanathapuram at Madurai, had jurisdiction to entertain the petition, submitted that

the respondent should be deemed to have had constructive custody of the minor at Virudhunagar and, therefore, the petition in O.P. No. 5 of

1987 was properly laid before the District Court, Ramanathapuram at Madurai. To support this, learned counsel strongly relied upon Utma Kuar

v. Bhagwanta Kuar, ILR 37. All 515 Ibrahim Nachl v. Ibrahim Sahib, ILR 39 Madras 603, Kupachi Ragaviya v. Lakshmiah, 48 MLJ 179,

(Kakara) Tatamma Vs. Marina Veerraju, and Sarada Nayar v. Vayankara Amma, AIR 1957 Ker 118. In reply, learned counsel for the petitioner

pointed out that the so called constructive custody would at best enable the respondent to maintain a petition u/s 25 of the Act without an actual

removal, but that would not enable the filing of a petition u/s 25 of the Act in a court other than the one within the jurisdiction of which the minor

ordinarily resided and, therefore, the decisions relied on by learned counsel for the respondent would not have any application at all.

Before proceeding to consider the rival submissions thus made, it would be necessary to ascertain on the available materials the place where the

minor ordinarily resided in the light of the relevant provisions of the Act. Section 4(4) of the Act defines a ""district court"" as having the meaning

assigned to that expression in the Code of Civil Procedure, and includes a High Court in the exercise of its ordinary original civil jurisdiction. u/s

4(5)(a) of the Act, ""the Court"" means the district court having jurisdiction to entertain an application under the Act for an order appointing or

declaring a person to be guardian. Section 9 of the Act relates to the jurisdiction of the court to entertain an application under the Act. The

provision relevant in this case is Section 9(1) of the Act, which runs as follows:

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"".

Section 25 of the Act, occuring in Chapter III relating to Duties, Rights and Liabilities of Guardians, is to the following effect :

25(1)--If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of 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 his guardian.

(2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the first class by Section 100 of the

Code of Criminal Procedure, 1881 (now the Code of , Criminal Procedure, 1973 (Act 2 of 1974) and the correspondent Section is Section 97).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

In the light of the aforesaid statutory provisions, the question whether the minor son in the present case ordinarily resided at Virudhunagar within

the jurisdiction of the district court, Ramanathapuram at Madurai, or not has to be decided. If it is to be held that he was so residing, it is not

disputed that in that event the district court, Ramanathapuram at Madurai will have jurisdiction to entertain the petition.

The words ""ordinarily resides"" connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been

removed either by stealth or by compulsion. The place of residence at the time of the filing of the application under the Act does not help to

ascertain whether a particular court has jurisdiction to entertain the proceedings or not, as it would be easy to stifle proceedings �under the

provisions of the act by the mere act of moving the minor from place to place and consequently from one jurisdiction to another. Whether the

minor was ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. It may be that ordinarily the

paternal family house may be taken to be the place of ordinary residence, but the words ""ordinarily resides"" are incapable of any exhaustive

definition as those words have to be construed according to the purpose for which the enquiry is made and the absence of animus revertendi would

normally be relevant, but in the case of minors, it is difficult to impute any such intention to them. It has also to be borne in mind that temporary

residence or residences by compulsion however long cannot be treated as ordinary residences at that place. Bearing these in mind, it is necessary

to ascertain from the available materials as to when the minor ordinarily resided for purposes of the Act.

In the application filed by the respondent, the address of the petitioner is given as Karumpalai, No. 581, K.K. Nagar, Madurai-20. In

paragraph 8, the respondent had stated that the minor had a short stay with the family of the respondent in Avani, 1988. Again, in paragraph 11,

the respondent had admitted that the custody of the minor remained with the petitioner, though it is stated to be harmful. In paragraph 12 of the

petition the respondent had accepted that the pelitioner was forcibly brought from Madurai to Virudhunagar and that she went away after four

days. It is significant that the petition filed by the respondent lacks in essential particulars and facts relating to the jurisdiction of the district court,

Ramanathapuram at Madurai. There is not even a statement to the effect that the minor ordinarily resided at Virudhunagar or that the respondent

was in constructive custody of the minor and that had been in some manner interfered with by the petitioner and that gave rise to the occasion for

the initiation of proceedings u/s 25(1) of the Act by the respondent. In the counter filed by the petitioner in O.P. No. 5 of 1987, she had

categorically stated that ever since his birth on 6-6-82, the minor had been residing only at Madurai. The petitioner had also stated that the minor

was never in the custody of the respondents. After referring to the initiation of proceedings in O.P. No. 64 of 1984 for divorce by the respondent

and its dismissal and the affirmation thereof in C.M.A. No. 64 of 1985, district court, Madurai, the petitioner stated that pursuant to the advise of

the Uravinmurai mediators to go to the house of the respondent along with the child she went along with the minor on 17-8-1986, when she was

subjected to cruelty by the twisting of her hand by the respondent resulting in a fracture and that obliged the mediators to take her back to Madurai

on the fifth day. The petitioner had also referred to the institution of O.S. No. 349 of 1986, by the minor against the respondent praying for the

relief of partition and further stated that the respondent was only anxious to get rid of the son and therefore, the restoration of the custody of the

minor to the respondent would not be for the welfare of the minor. Even in the affidavit filed by the petitioner in support of LA. No. 306 of 1989,

she had reiterated that ever since the birth of the minor, he had resided continuously with her as Madurai. For the first time, in the counter to LA.

No. 306 of 1989 the respondent, in paragraph 4, put forward the case that the minor was residing at Virudhunagar and was forcibly removed from

that place by the petitioner. It has to be borne in mind that it was not the case which was pleaded by the respondent in O.P. No. 5 of 1987. In the

reply filed by the petitioner in LA. No. 306 of 1989, she had accepted , that between 17-8-1986 and 22-8-1986 the minor was living temporarily

at Virudhunagar, but his ordinary residence was at Madurai from the date of his birth. The forcible removal of the minor from Virudhunagar was

characterised as a cock and bull story and the petitioner reaffirmed that the ordinary residence of the minor was only Madurai. It is thus seen from

the pleadings in O.P. No, 5 of 1987 that the respondent had not stated that the minor ordinarily resided at Virudhunagar on that the respondent

was in constructive custody of the minor. For the first time, the respondent, in the counter to LA. No. 306 of 1989 filed by the petitioner, had

come forward with the case that the minor was residing at Virudhunagar and was forcibly removed from that place. Earlier, it has been pointed out

how the relevant facts and particulars to clothe the district court, Ramanathapuram at Madurai, with jurisdiction to entertain the petition have not

been set out at all by the respondent in O.P. NO. 5 of 1987. On the basis of the pleadings, it cannot be said that the respondent had proceeded to

institute O.P. No. 5 of 1987 before the district court; Ramanathapuram at Madurai, within the jurisdictional limits of which the minor ordinarily

resided. The available evidence also clearly established that ever since the birth of the minor, he had been ordinarily residing only at Madurai and

not at any other place. Though the petitioner had filed several documents to show that the minor had been admitted into a school at Madurai even

in 1986, the court below had not cared to make a reference to these documents. Exs. A-9 to A-13 are the certificates issued by Ratchanya

English School, K.K. Nagar, Madurai 20, to the minor Arun. Exs. A9 to All show that the minor, who had been admitted into U.K.G. class in that

school, was awarded prizes for drawing competition, attendance and fancy dress for the year 1986-87. Exs. A12 and A13 show that similar

certificates had been awarded to the minor while studying in the first standard during 1987-88 for merit and fancy dress competition. There is

absolutely no reason as to why Exs. A9 to A13 should not be accepted. It is thus seen from the . documents referred to above that the minor had

been admitted into the school at Madurai in 1986 and he pursued his studies in 1987 and 1988. The evidence on behalf of the respondent also

does not disclose that the minor was ordinarily residing elsewhere. There is absolutely no material on behalf of the respondent to show that the

minor was ordinarily residing at Virudhunagar after his birth. The misunderstandings between the petitioner and the respondent had arisen soon

after the petitioner became pregnant and she had also left for her parents'' house in Madurai and had delivered the child on 6-6-1982 and had not

returned thereafter to the house of the respondent, excepting for four days between 17-8-86 and 22-8-86. The temporary visit by the petitioner

along with her minor son to the house of the respondent during the aforesaid period of four days; cannot by any stretch of imagination, be equated

to the ordinary residence of the minor at Virudhunagar. The visit of the petitioner along with her minor son to the house of the respondent was at

the instance of the mediators and well wishers of the Uravinmurai and has to be regarded as purely a temporary visit and such a visit cannot enable

the respondent to claim that the minor ordinarily resided at Virudhunagar. The reasoning of the learned District Judge is rather difficult to follow.

Even on the assumption that the minor son was conceived in the paternal house, that would not make the minor son one who ordinarily resided in

the paternal house. That question has to be decided as one of fact on the available evidence and not on conjectures or practices of the community,

as stated in paragraph 5 of the order of the learned District Judge. The stay of four days duration between 17-8-1986 and 22-8-1986, as pointed

out earlier, was purely temporary and the learned District Judge was in error in holding on the basis that the minor ordinarily resided at

Virudhunagar. In the absence, therefore, of any evidence to show that after the birth of the minor on 6-6-1982, he had lived or resided in the

house of respondent normally or ordinarily, it follows that on the available evidence, the minor should be held to have ordinarily resided only at

Madurai. and not at Virudhunagar within the jurisdiction of the District Court, Ramanathapuram.

It would be appropriate at this stage to refer to the argument of the learned counsel for the respondent that the respondent should be deemed to

have been in constructive custody of the minor and therefore, the proceedings in O.P. No. 5 of 1987 were properly laid before the district court,

Ramanathapuram at Madurai. Apart from the circumstance that the evidence clearly establishes that the minor ordinarily resided at Madurai, not

within the jurisdiction of the district court, Ramanathapuram at Madurai, it is seen that the respondent has not mentioned anything in his petition in

O.P. No. 5 of 1987 either about the so-called constructive custody or the loss of it. It had earlier been pointed out that how even essential

particulars to make out that the district court, Ramanathapuram at Madurai, had jurisdiction to entertain the petition had not been stated. It is,

therefore obvious that the argument of constructive custody has been put forward only with a view to sustain the order of the court below, if

possible. There is, in my view, no substance in this argument. The respondent bad not put forward the case of constructive custody of the minor at

all and how that had been in any manner interfered with by the petitioner. Further the expression used in Section 9(1) of the Act is the place where

the minor ordinarily resides. The constructive residence of the minor cannot be said to have been contemplated at all by the use of the aforesaid

expression. It is important to note that the jurisdiction of the court is not to be decided with reference to the place of residence of the guardian, but

the place of the ordinary residence of the minor and if on the evidence it is found that the minor had ordinarily resided at a particular place, it is not

possible to ignore that and to treat, by a fiction, that the minor was in the constructive custody of his father elsewhere, as if such place of the

ordinary residence of the minor for purposes of Section 9(1) of the Act. Besides, the concept of constructive custody is a court-evolved one and

does not find expression in the language of the Act. It was only with a view to effectively implement the provisions of the Act that courts had to,

devise the idea of constructive custody, particularly to give effect to Section 25 of the act in certain circumstances. That, however, cannot be

applied to cases where the jurisdiction of the court has been made to depend upon the ordinary residence of the minor. There is, in my view, no

scope whatever for importing constructive custody into Section 9(1) of the Act, which clearly spells out the requirement, viz., the ordinary

residence of a minor within the jurisdiction of the concerned district court as the essential requisite to clothe that court with jurisdiction.

It now remains to refer to the decisions, attention to which was drawn by learned counsel for the petitioner and the respondent respectively. In

H.P. Jaiswal v. Suresh Jaiswal, AIR 1987 AP 13 it has been laid down that u/s 9(1) of the Act, the place where the minor ordinarily resides would

determine the jurisdiction of the court arid not the place of residence of the natural guardian. It has also been further pointed out that the actual

residence of the minor, having regard to the circumstances under which he happens to reside at a particular place, must be taken into account in

deciding the place where the minor ordinarily resides. The principle of this decision, in my view, would be applicable to this case. In Jeswanti

Pandey v. Kishan Chandra (supra), the Supreme Court had occasion to interpret Section 9(ii) of the Hindu Marriage Act in relation to the

expression ''''residence"" occurring therein. It was pointed out that the word ''reside'' is by no means free from all ambiguity and is capable of a

variety of meanings and in its ordinary sense, it means residence of more or less a permanent character, though the word must take its colour and

content from the context in which it appears. On the materials available in this case in the light of interpretation given to the word ""residence"" by the

Supreme Court it follows that the minor had made Madurai his permanent abode for a considerable time and also as his fixed home or abode and

under those circumstances, this decision would support the contention of the petitioner. In Bhagyalakshmi v. K . Narayana .Rao (supra). I had

occasion to consider the scope of Section 2(1) and 25 of the Act on the facts and circumstances of that case and it was found on the evidence that

the minors had ordinarily resided at Komarapalayam and they had not abandoned that place as a home or abode and, therefore, the proceedings

initiated u/s 25 of the Act by the father were properly laid before the district court at Salem. While holding so, it was stated that the paternal family

house or the family residence may normally be taken to be the place of ordinary residence of the minors as well. That was so stated in the context

of normalcy and not in altered factual situations established by evidence like what we have in the present case. It has also been pointed out that

temporary residence or residence by compulsion cannot be equated or treated as a place of ordinary residence and in view of that, the respondent

cannot be permitted to take advantage of the stay of the minor for four days between 17-8-88 and 22-8-88 to claim that the minor had ordinarily

resided at Virudhunagar. The aforesaid decision also, far from supporting the case of the respondent, asists the petitioner to contend that the minor

ordinarily resided only at Madurai and the temporary visit for four days to Virudhunagar cannot be pressed into service to confer jurisdiction on the

District Court, Ramanathapuram at Madurai. In Aparna Banerjee v. Tapsan Banerjee (supra), the mother of the minor child resided at the place

''C'' while the father filed the application u/s 25 of the Act at the place ''F'' where he was residing and it was held that as the place or ordinary

residence was at the place ''C'' the Court at ''F'' had no jurisdiction to entertain the application. Similar would be the situation in this case also. In

Utma Kuar v. Bhagwanta Kuar, (supra) the mother filed an application u/s 25 of the Act praying for the custody of her minor daughter, who, it

was stated, had been removed by the sister of the minor. This application was filed after the mother was appointed by an order of Court as

guardian on 26-8-1914 and a certificate to that effect was also issued on 31-8-1914 and, therefore, the application u/s 25 of the Act filed by the

mother was only to secure the custody of the minor as a duly appointed guardian and it was in that context the Court pointed out that the custody

of the minor, in order to effectively work out Section 25 of the Act and grant the relief, may be treated as technically made over to the guardian

appointed from the date of appointment. On that footing it was held that the mother was duly appointed guardian and she should not be left without

any remedy for securing the custody of the minor for whom she was appointed as guardian. The court ruled that from the date of the appointment

of the mother as guardian, technically, she must be deemed to have the custody of the minor in order to work out the rights of the guardian so

appointed u/s 25 of the Act. That decision did not consider the question of the jurisdiction of the District Court u/s 9(1) of the Act and cannot,

therefore be of any assistance to the respondent. In Ibrahim Nachi v. Ibrahim Sahib (supra), the father filed an application u/s 25 of the Act for an

order directing the return to him of his minor son whom, at the time of his wife''s death, he had left in the custody of his mother-in-law. The

application was resisted by the mother-in-law on the ground that the minor son had never been in the custody of the father and therefore, Section

25 of the Act did not have any application, as there was no removal of the minor from the custody of the guardian. It was in this context the

division bench pointed out that the grandmother had the custody of the minor with the knowledge and consent of the father and the father himself

might, therefore, be deemed to have had the custody of the minor within the meaning of Section 25 of the Act. This interpretation of the word

''custody'' as including actual and constructive custody was given on stretching the language of the section, which according to the learned judges,

was not too violent. Nevertheless, such an interpretation was given only for the purpose of enabling the father to obtain the custody of his minor

son from his mother-in-law, who was in actual but permissive custody, on the ground that the father was also in constructive custody for purposes

of Section 25 of the Act. The question whether such constructive custody would also be sufficient for meeting the requirement of Section 9(1) of

the Act, viz., where the minor ordinarily resided was not dealt with or considered and that decision has, therefore, to be understood as one

recognising constructive custody merely for the purpose of effectuating the object of Section 25 of the Act and to secure custody and not for

purpose of jurisdiction. In my view, therefore, that decision also cannot have any application in this case. In Raghavaiya v. Lakshmiah, (supra) the

father was appointed as guardian and a direction was also given that the custody of the infant should be given to him. Relying on Section 25 of the

Act, that order was supported by the respondent and in that context, it was held that it was for the benefit of the ward that he should be handed

over to the father, even though the lawful guardian did not have previously actual physical custody. That decision again does not assist the

respondent, for the appointment of the father as guardian, be was entitled to custody and though there was no actual removal, it was held that the

constructive custody and a direction to restore the custody would fulfil the object of Section 25 of the act. That decision also did not in any manner

concern itself with the question of jurisdiction. In Tatamma v. Veeraiju, (supra) the father was appointed as guardian of his minor daughter and an

order u/s 25 of the Act was also passed directing the respondent to deliver her into his custody. It was contended that no application u/s 25 of the

Act would lie in a case where the minor has never been in the custody of the guardian. While accepting that was the plain meaning of the section,

the learned judges proceeded to follow the earlier decisions of the Court that in order to make the provision of the Act workable a fiction must be

imported into the section whereby it might be deemed that the child must be in the constructive custody of the guardian and has left it. As pointed

out earlier, on the appointment of the guardian he had a right to secure the custody of his daughter from other persons, who had the custody of the

minor and it was only in recognition of the right of the father as guardian and to give effect to those rights, the theory of constructive custody was

imported into Section 25 of the Act and that too for a limited purpose of preventing Section 25 of the act from becoming a dead letter. This

decision also had nothing whatever to do with the question of jurisdiction with reference to Section 9(1) of the Act. In Sarada Nayar v. Vayankara

Ammal, (supra) it was held that the emphasis is on the minor''s ordinary place of residence and that place had to be determined by ascertaining as

to where the minor was ordinarily residing and in that context, the places to which the minor may be removed have to be excluded. It was also

further laid down that Section 25 of the Act is not confined to cases of separation or removal of the ward from the actual custody of the guardian,

but is equally available to guardian who had only legal or constructive custody of the ward. In so far as the question of jurisdiction is concerned,

this decision does not assist the respondent, for, even according to it the ordinary place of residence has to be determined for purposes of Section

9(1) of the Act and not the places to which the minor may be removed or had been removed. Applying that principle, it follows that the place

where the minor had ordinarily resided would only be at Madurai as found earlier. The other aspect of constructive custody cannot also be said to

arise in this case. For, there is absolutely no reference whatever to that by the respondent in O.P. No. 5 of 1987 and there is also no allegation of

removal of the minor from the constructive custody of the respondent by the petitioner or the minor leaving the constructive custody of the

respondent. In any event considerations of constructive custody would assume importance only when the application u/s 25 of the Act is dealt with

on the merits and would not really be germane to a decision on the question of jurisdiction, which should be governed only by Section 9(1) of the

Act. It may also be pointed out that the claim of the respondent to be the guardian of the minor son is very seriously contested by the petitioner on

several grounds and the petitioner has also set out in her counter several circumstances which would disentitle the respondent from being the

guardian of the minor, unlike the case in Sarada Nayar v. Vayankara Ammo, (supra), where the mother was accepted the legal guardian of the

minor and at this stage of the proceedings it cannot be assumed that the respondent is the legal guardian entitled to constructive custody of the

minor and thus entitled to maintain an application u/s 25 of the Act, without reference to the fulfilment of the requirements of Section 9(1)(a) of the

Act. The reliance placed by the learned counsel for the respondent on the decisions referred to above does not in any manner advance the case of

the respondent.

Thus, on a due consideration of the facts and circumstances as well as the order of the court below, it is seen that the court below was in error

in holding that it had jurisdiction to entertain O.P. No. 5 of 1987 filed by the respondent before the district court, Ramanathapuram at Madurai.

The civil revision petition is therefore, allowed and the order of the court below is set aside and O.P. No. 5 of 1957 filed by the respondent is

directed to be returned to the respondent for presentation to the proper court. Taking into account the very close relationship between the parties,

there will be no order as to costs.