Sh. Hukam Chand Kamra vs Smt. Shilpa

Manmohan Singh, J.—The petitioner, Hukam Chand Kamra (respondent before the learned trial Court) has challenged the order dated 30th July, 2013 whereby the petitioner''s application under Order VII Rule 11 CPC for rejection of the petition was dismissed. The fact of the matter is that:-

(a) Smt. Shilpa, respondent herein has filed a petition for claiming of her minor child, namely, Master Tushar who is now residing in the custody of his grand-father, i.e. petitioner herein, in Bhiwani, Haryana.

(b) The marriage between Smt. Shilpa and Sh. Gulshan Kamra-son of the petitioner, was solemnized on 22nd June, 2003 in Haryana. Out of the wedlock, the child Master Tushar was born on 23rd May, 2005.

(c) When Master Tushar was at the age of one year and five months, the husband of the respondent had expired on 5th October, 2006 due to heart attack.

The case of the respondent is that after the death of her husband, the petitioner herein and his wife (in-laws of the respondent) started humiliating the respondent and continuously taunting her for not having the job. The respondent then took the child with her to Delhi in search for job and stayed in Delhi for few days. During this time, the petitioner came to Delhi to extend help for looking after the child Master Tushar. The respondent handed over the child to the petitioner. After getting the job when the respondent visited the petitioner''s place at Bhiwani, Haryana to take back the child with her, the petitioner and his wife did not allow the respondent to meet the child and to take him to Delhi, despite of various efforts made by the respondent. Thus, the respondent had no other option but to file the petition for custody of the child before the Guardian Judge, Delhi.

Upon service, the petitioner filed an application under Order VII Rule 11 CPC for rejection of the petition, mainly, on the reason that u/s 9(1) of the Guardian and Wards Act, 1890, the learned trial Court has no jurisdiction to try and entertain the petition, as the child ordinarily resides in Bhiwani, Haryana.

The question before this court is what would be the ordinary place of residence of a minor to decide the jurisdiction of the court for the purpose of the custody within the meaning of Section 9 of the Guardians and Wards Act, 1890 which reads as under:

Section 9-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 the 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.

The term "resides" has been discussed and decided by various courts and it has been held that the word "resides" means something more than a regular stay. The expression "ordinarily resides" should be given its natural meaning, so as to advance the intention of the legislature. The word "ordinarily resides" do not have the same meaning as "residence at the time of application". In the present case, as per averments made in the petition by the respondent, at the time to get the job the child was with the widow; he was handed over to the petitioner for his security reasons, however, later on, the petitioner refused to hand over the child and even refused to the mother to meet him when she went to see him in Bhiwani (Haryana).

The following decisions are necessary to be referred:-

(i) In Vinayak Rao and Others Vs. Smt. Shweta Jadhav, , it was observed that "A perusal of Section 9(1) of the Act makes it apparent that it is the ordinary place of residence of minor which determines the jurisdiction of the Court for entertaining an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the petition. The fact that the minor is found actually residing at a place when the application for the guardianship of minor is made does not determine the jurisdiction of the Court. There can again be no dispute that the term "residence" is an elastic word of which an exhaustive definition cannot be given. It is to be construed differently as per the purpose for which an enquiry is made. Section 9(1) uses'' the words "Ordinarily resides" and this means more than a temporary residence. These words indicate a regular, normal and settled home and not a place where the minor is on account of compulsion."

(ii) In Parshant Chanana Vs. Mrs. Seema alias Priya, it was observed that "Section 9(1) 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 challan."

(iii) In Smt. Jeewanti Pandey Vs. Kishan Chandra Pandey, it was held that "In its ordinary sense "residence" is more or less of a permanent character. The expression "resides" means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has fixed home or abode. In Webster''s Dictionary, "to reside" has been defined as meaning "to dwell permanently or for any length of time", and words like "dwelling place" or "abode" are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change.

(iv) In Bhagwan Dass and Another Vs. Kamal Abrol and Others, , the Supreme Court observed that it is apparent that the word ''residence'' is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of ''residence''.

(v) In Rabindra Sharan Vaish vs. Kusum Agrawal, 1987 (1) Cur. Civ. Cases 397 (M.P.) , the father was residing at Bhopal. The mother removed the child permanently to Lucknow forsaking her matrimonial home. It was held that Lucknow is the place where the minor ordinarily resides. Accordingly, it was held that Lucknow Courts and not the Bhopal Courts would have jurisdiction to entertain the dispute with regard to guardianship of the minor. Reference may be made to the decision given by the Madras High Court reported as R. Geetha Vs. A.T. Rajan, . As to what meaning is to be given to the words "ordinarily resided" would be found elaborated in para 5 and this reads as under:

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 the 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 normal case, ordinary place of residence means a place where one intends to settle down. In the present case, the intention of the widow was to settle down in Delhi after getting the job with her minor son. Therefore, the residence of the minor is to be linked with that of the parents. As the respondent in the present case is settled in Delhi, it was never intended on the part of the respondent-widow to allow the grand-parents to return the child to Haryana. Thus, his ordinary place of residence was intended to be in Delhi.

The petitioner has also placed reliance on the words "where the minor ordinarily resides" to state that since the minor is residing at Bhiwani with grand-parents, this Court has got no territorial jurisdiction. I do not agree with this line of interpretation. This was elaborately discussed in K.C. Sashidhar Vs. Smt. Roopa, , wherein a similar factual situation arose. The Court observed that the words "ordinarily resides" should be construed as the place where the mother resides before the presentation of the petition. The Court further noted that since the child is of tender age, the legal guardian would be the mother and place of her residence, on the date of presentation of the petition is the place where it is to be construed as the minor ordinarily resided. In Smt. Jeewanti Pandey Vs. Kishan Chandra Pandey, , the Supreme Court in a matter arising out of the Hindu Marriage Act, the scope of the word "ordinarily resides", it is held that: "the word ''resides'' must mean the actual place of residence and not a legal or constructive residence, it certainly did not connote the place of origin. It was the actual residence of the wife at the commencement of the proceedings that had to be considered for jurisdiction"

When the matter was taken up on 27th November, 2013 as well as on 5th December, 2013, the petitioner, i.e. the grand-father of the minor child Master Tushar brought the child in Court as per directions. The child has met the mother in chamber for some time on both the dates. It appears to the Court that the child is confused on which side and in whose favour he should speak despite he met his mother, though when he saw his grand-father, he refused to accept the gifts offered by the mother. He was not able to decide about his future place of living. It appears that the child is under the control of grand-parents. There is a force in the submission of the learned counsel for the respondent when it is argued that the petition for custody has been rightly filed in Delhi so that at least visiting rights be granted to the mother from time to time till the final disposal of the petition, because as per the respondent, when she went to Bhiwani (Haryana), the grand-parents did not allow her to meet the child.

It is not in dispute that at present, the respondent is residing in Delhi. She is also working in Delhi. Thus, I am of the view that the impugned order dated 30th July, 2013 does not suffer from any infirmity nor requires any interference. Even otherwise, the issue of territorial jurisdiction has to be determined at the time of passing the final orders by the learned trial Court. Thus, the petitioner is not entitled to any relief as prayed for. The present petition is accordingly dismissed as also the pending application.