Rajinder Kaur @ Rajvinder Kaur vs Jagmohan Singh

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 02.07.2013 (Annexure P-1) passed by learned Additional Civil Judge (Sr. Divn.), Ellenabad whereby application filed by the petitioner-respondent under Order 7 Rule 11 read with Section 151 CPC has been dismissed. For the sake of convenience, the parties hereinafter will be referred as per their status in main petition.

Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondent filed petition u/s 7, 17 and 25 of the Guardian and Wards Act, 1890 (in short "the Act, 1890") read with Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956 for appointment/declaration of the petitioner as guardian of minor namely Gurvinder Singh alias Kaka as well for his property and for the custody of minor. It is averred in the petition that Gurmukh Singh-son of the petitioner and respondent lived together as husband and wife at village Himmatpura, Tehsil Rania, District Sirsa. One male child namely Gurvinder Singh @ Kala was born out of this wedlock on 03.06.2006. Unfortunately, Gurmukh Singh died on 19.01.2006 and now minor grand-son of the petitioner is living with the respondent. It is alleged that Gurmukh Singh had actually committed suicide, because the respondent used to harass and humiliate him and she created such a tense atmosphere that Gurmukh Singh developed depression and frustration and committed suicide. It is also alleged that at the time of death of Gurmukh Singh, the respondent was pregnant and she tried to abort the pregnancy, but the petitioner and his family members took care of and watched the respondent, so she could not abort the said pregnancy. However, the respondent succeeded in fleeing away from the house of the petitioner in April, 2006 in a pregnant condition and on 03.06.2006, she delivered minor-Gurvinder Singh alias Kaka in a hospital at Yamuna Nagar. Now the minor is residing with the respondent at Yamuna Nagar. It is alleged that the respondent has contracted second marriage and at present is living in Delhi.

During the pendency of petition, the respondent filed application under Order 7 Rule 11 CPC challenging territorial jurisdiction of the Court and prayed for rejection of plaint. Upon notice, the petitioner filed reply and submitted that such a petition can be filed where the minor is residing temporarily and/or where the minor has property. Vide impugned order dated 02.07.2013, the trial Court has dismissed the said application. Hence, this revision.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner has vehemently contended that the trial Court has no territorial jurisdiction to entertain the original petition and proceed with the matter as the minor child is living at Nansheha Pinwan, District Tarn Taran. As per Section 9 of the Act, 1890, 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 over the place where the minor ordinarily resides.

I have considered the contentions of learned counsel for the petitioner.

The short question which is required to be determined in the present case is whether prima facie the Court at Ellenabad is vested with jurisdiction to decide the petition for the custody of minor under the Act, when controversy has been raised by the petitioner herein that the minor child whose custody is claimed, is residing at Nansheha Pinwan, District Tarn Taran. As both the parties claim the custody of minor, it will not be prudent to pre-judge the issue of jurisdiction by giving a finding on appreciation of evidence qua residence of the minor in this revision. The rights of the parties will be prejudiced in case the issue of jurisdiction, which in the present case, seems to be an issue of fact and law is decided by this Court. The said issue as framed, has to be determined by the trial Court in the peculiar facts and circumstances of the case, taking into consideration the provisions of Section 9 of the Act, 1890, in context with the relevant provisions of other procedural laws. Section 9 of the Act, 1890 reads 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.

(2) If the application is with respect to the guardianship of the property of minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

A perusal of Section 9 of the Act, 1890 indicates that it contemplates the territorial jurisdiction of the Court in the matter of guardianship application. Firstly, when the application is in respect of the person of a minor, it is to be filed in the Court under whose territorial jurisdiction, the minor ordinarily resides. Secondly, if application relates to the property of the minor, there are two forums and the applicant may choose any of them, namely, the Court under whose territorial jurisdiction, the minor ordinarily resides or within whose territorial jurisdiction minor has property. But when in property application, the applicant chooses the first forum, namely, the residence forum, the District Court of the place may return the plaint, if the Court considers that the application would be disposed of justly and conveniently by some other Court. It is pertinent to observe here that there is nothing in the Act, 1890, forbidding the applicability of CPC to proceedings under the Act, 1890. Section 4(1) of CPC reads as follows:-

Savings. - (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

Learned counsel for the petitioner agrees that the question whether provisions of CPC, are applicable in proceeding under the Act, 1890, is not being raised in this revision, as such, it is left open.

What is required to be determined in the present case is whether in the circumstances of this case it can be said that on account of the minor being residing in District Tarn Taran, the Court at Ellenabad, will have no jurisdiction. Section 9(1) of the Act, 1890 makes it clear that it is the ordinary place of residence of minor which determines the jurisdiction of a particular Court to entertain an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the application. The term ''residence'' is an elastic word of which an exhaustive definition cannot be given. It is differently construed according to the purpose for which enquiry is made into meaning of the term. The sense in which it should be used is controlled by reference to the object. A reasonable meaning of ''residence'' would mean dwelling in a place for some continuous time. The word ''ordinarily resides'' in sub Section 1 of Section 9 may include a temporary residence, if minor has been residing there for considerable length of time. Words "ordinarily resides" would mean a regular, normal, a settled home or a regular place of abode, which can be distinguishable from a temporary or a forced stay. If a minor child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child ''ordinarily resides.'' The respondent herein has in his petition for the custody of the minor specifically mentioned and actually admitted that the minor is residing with the petitioner herein. He also explained the circumstances in which the minor has been accompanied with the petitioner herein.

In Manoj Agrawal and Another Vs. Smt. Sushma Agrawal and Another, the Hon''ble Uttaranchal High Court in context of provisions of order 7 Rule 11(d) of CPC, has observed that the issue of jurisdiction is to be decided on the basis of the averments contained in the plaint etc. Similar view has been expressed by this Court in Parshant Chanana vs. Mrs. Seema alias Priya in C.R. No. 2027 of 2009, decided on 27.07.2009. In the present case, the petition filed by the respondent herein cannot be rejected under Order 7 Rule 11(d) of CPC because from the averments made in the petition, it does not prima facie appear to be barred by any law.

In view of the above, I do not find any illegality or perversity in the impugned order. Dismissed.