Tara Devi (Smt.) vs Chandan Mal

Narendra Kumar Jain-II, J.—This transfer petition under Sec. 24 of the code of Civil Procedure, 1908 has been filed by the petitioner - Smt Tara Devi wife of respondent-Chandan Mal, for transfer of Civil Misc. Cases No. 51/2006 and 52/2006-Chandan Mal vs. Smt Tara Devi filed under Secs. 10 and 12 of the Guardian and Wards Act and pending before the District Judge, Balotra to the District Judge, Pali. As per petition, the respondent-husband Chandan Mai has filed a petition under secs. 10 & 12 of the Guardian & Wards Act before the District fudge, Balotra, praying thereby for appointing him guardian and giving him custody of their minor son - Vikas (8 years) and minor daughter Priyanka (6 years), against petitioner-wife Smt. Tara Devi. The petition was registered as Civil Misc. Case No. 52/2006. The respondent-husband also filed an application for interim custody of their minor children, which is pending as Civil Misc. Case No. 51/2006 before the District Judge, Balotra.

He further contended that against order dt. 18.10.2007 passed by learned District Judge, Balotra, whereby her application filed under Sec. 9 rule 13 CPC (for cancellation of decree passed under sec. 9 of Hindu Marriage Act), petitioner has filed a Misc. Appeal, being No. 42/2008, which is pending before this Court.

It is stated that the petitioner was married with respondent in June 1996 and above said children born out of their wedlock. In the aforesaid petitions, it is alleged that the petitioner-wife lodged false criminal case under sec. 498A IPC against respondent-husband at the instigation of her mother and brother but in that case, respondent-husband was acquitted of the charge. It is further stated that despite decree for restitution of conjugal rights passed upon a petition filed by respondent-husband under sec. 9 of the Hindu Marriage Act, the petitioner-wife is not honouring the decree.

It is also stated that the petitioner-wife is maintaining herself and the children out of maintenance amount paid by respondent-husband under orders of the Court. The respondent-husband is a government teacher and in view of better care of the children, he prayed for declaration as guardian of their minor children and custody of the children from petitioner-wife.

In the present petition, it is submitted by the petitioner that as provisions of the Guardian & Wards Act, where the minor ordinarily resides, the Court having jurisdiction in that place can only entertain the application for appointment of guardian under the Act. It is undisputed that the minor children are residing with their mother (petitioner) at village Doodiya in Pali, therefore, a petition for appointment of gurdian or custody of the children under the Act can only be entertained by Court at Pali. With this averment, prayer is made for transfer of Misc. Cases No. 52/2006 and 51/ 2006 to the Court of District Judge, Pali.

In support of aforesaid averment as to jurisdiction of the Court competent to entertain petitions for appointment of guardian or custody of minor children under Guardian & Wards Act, learned counsel for the petitioner relied upon judgment of this Court rendered in Smt. Vimla Devi Vs. Smt. Maya Devi and Others, as also decision of Hon''ble Supreme Court in Pooja Bahadur Vs. Uday Bahadur, In the case of Smt. Vimla Devi, appeal against order of District Judge, returning the application with direction to present the same before Court having jurisdiction, was dismissed. While dismissing the appeal, provisions of Sec. 9 (3) of the Guardian and Wards Act were relied upon. For ready reference, provisions of sec. 9 of the Act are reproduced herein below :

(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 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.

This view was also affirmed from decision of Hon''ble Supreme Court in the case of Pooja Bahadur (supra).

Learned counsel for the respondent-husband vehemently opposed the petition for transfer of the cases by reiterating the submissions made in his applications filed under the Act before Court below.

Having regard to the facts and circumstances of the case noticed above and in view of explicit provisions regarding jurisdiction contained in sec.9 of the Act; in my considered opinion, the interest of justice would be met if the Petitions filed by respondent-husband under secs. 10 & 12 of the Guardian and Wards Act before the District Judge, Balotra are transferred to the Court of District Judge, Pali.

Accordingly, this Transfer Petition of the petitioner is allowed and in the interest of justice, the Civil Misc. Cases No. 52/2006 and 51/2006 - Chandan Mal vs. Smt. Tara Devi pending in the Court of District Judge, Balotra are hereby ordered to be transferred to the Court of District Judge, Pali.

Learned District Judge, Balotra shall send record of the case to the transferee Court immediately.

The parties through their counsel are directed to appear before the District Court, Pali on 26th March 2012. The transferee Court shall expeditiously dispose of the matrimonial petition. The stay application also stands disposed of accordingly.