V. Venkatesan vs Shanmuga Vadivu

G. Rajasuria, J.—Both the sides called absent.

The pith and marrow, the warp and woof of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision

petition would run thus:

The revision petitioner/husband filed the G.O.P. No. 38 of 2005 in the Principal District Court, Villupuram as against his wife seeking custody of

the minor child on various grounds. The wife after entering appearance filed counter. She also prayed for taking up the jurisdiction point as a

preliminary one. Whereupon the Court decided to the effect that the Principal District Court has no jurisdiction to entertain the said Guardian O.P

in view of the fact that the minor concerned has been living at Salem District and the child''s ordinary place of residence happens to be there only

and with that finding the petition was ordered to be returned for being presented before the competent court at Salem. Being aggrieved by and

dissatisfied with the said order of the lower Court, this civil revision petition has been focussed on various grounds inter alia to the effect that

ignoring the dictum of this Court reported in Bhagyalakshmi and Another Vs. K.N. Narayana Rao, , the lower Court simply ordered for returning

the plaint as though it had no jurisdiction to entertain the Guardian O.P.

A bare perusal of the typed set of papers including the copy of the order of the lower Court would display and demonstrate, exemplify and

expatiate that the lower Court took into consideration the fact that the minor concerned has been living with the mother, the respondent herein for a

pretty long time at Salem and accordingly held that the minor''s ordinary place of residence is only at Salem and not within the jurisdiction of

Principal District Court, Villupuram. The ratio decidendi of the decision of this Court cited supra has to be considered for which, the following

excerpt is absolutely just and necessary.

It would be pertinent to notice the relevant statutory provisions which have a bearing on the questions debated. Section 4(4) of the Act defines a

District Court"" as having the meaning assigned to that expression in the CPC and includes a High Court in the exercise of its ordinary original civil

jurisdiction. Section 4(5)(a) states that ""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 a guardian. Section 9 relates to the jurisdiction of the Court to entertain an application. The provision

relevant in this case is Section 9(1) of the Act, which reads as under-

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 provides as follows:

Title of guardian to custody of ward-

If a ward leaves or is removed from the custody of the 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 this return, and for the purpose of enforcing the order may cause the ward to

be arrested and to be delivered into the custody of the guardian.

For the purpose of arresting the ward, the court may exercise the powers conferred on a Magistrate of the first class by Section 100, Crl.P.C.,

1882 (Now the Code of Criminal Procedure, 1973 (Act 2 of 1974) and the corresponding Section is Section 97).

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

In the light of the aforesaid statutory provisions, the question whether the minor children in the present case ""ordinarily resided"" at Komarapalayam

within the jurisdiction of the District Court Salem or not, has to be decided. If it is to be held that they were so residing, it is not disputed that in that

event, the District Court at Salem will have jurisdiction to entertain the proceedings. The words ""ordinarily resides"" would in my view, 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, it would be easy to stifle proceedings under the provision of the Act by the mere act of moving the minors from

one place to another and consequently from one jurisdiction to another. The question whether the minors were ordinarily residing in any particular

place has to be primarily decided on the facts of the particular case. The paternal family house of the family residence may normally be taken to be

the place of ordinary residence of the minors as well. 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. The intention of not reverting back to the former place of residence would

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

temporary residence or residence by compulsion at a place however long, cannot be equated to or treated as the place of ordinary residence.

Bearing in mind these considerations, it is necessary to ascertain from the materials available in this case as to where the minors ""ordinarily resided

for purpose of the Act. There is no dispute that till 1st July, 1975, the first appellant, the respondent and the minor children were all living together

under one roof in Komarapalayam. It is thereafter that the first appellant left Komarapalayam taking the children also with her and continued to live

in her father''s house at Kote village with the children till the proceedings were initiated by the respondent u/s 25 of the Act. The evidence of the

first appellant, examined as RW1, is to the effect that she and the respondent resided together with the children at Komarapalayam. In the course

of her cross examination R.W.1 admitted that the respondent requested her and the children to come and live with him. It is also further admitted

that an ex parte decree for restitution of conjugal rights had also been obtained by the respondent. On this evidence of RW1, it is rather difficult to

hold that she completely abandoned her husband''s house at Komarapalayam as a place of residence and had decided permanently to stay at

Kote. The minor children had been taken by the first appellant when she left her husband''s abode, presumably on account of certain

misunderstandings and quarrels that had arisen between the first appellant and the respondent and though the differences between them apparently

had not been patched up later, there is nothing in the evidence which would disclose that there was any idea of abandonment of the family house at

Komarapalayam on the part of the first appellant. At any rate the minor children cannot be imputed with any intention of abandoning the family

residence at Komarapalayam, as they are obliged to stay with their mother, who had taken them to Kote village. The residence of the minors at

Kote village, though for some years has necessarily to be regarded as a temporary one or under compulsion or force of circumstances and could

not therefore be regarded as the ordinary place of residence, which as stated earlier connotes the idea of a settled home which is only in

Komarapalayam. Though the words used in Section 9(1) of the Act are ""ordinarily resides"" the mere residence on the date of application, as stated

earlier cannot be decisive of the matter. In present case, the evidence points out that the settled home or abode of the minors is only at

Komarapalayam and not at Kote village, to which place they had been merely removed by the first appellant owing to certain misunderstanding

between her and the respondents and such residence at Kote village is merely a temporary residence taken up not with the idea of permanently

abandoning Komarapalayam as a place of residence. In Mst. Firoze Benum v. Aghtaruddin Lasker on the facts, it was found that the minors had

been ordinarily residing at Silchar for a period of about 3 years prior to the making of the application and therefore, the requirements of Section 9

of the Act satisfied with reference to the court at Silchar. There were also rival applications filed by the father as well as the mother. On the facts of

the present case that decision cannot therefore, be applied. The reliance placed upon Mst.Jagur Kaur and Anr. v. Jaswanth Singh does not also

assist the appellants as the Supreme Court in that case was concerned with the interpretation of Section 488 Cr.P.C. The language employed in

that provision is very different from that in Section 9(1) of the Act. Apart from this, it is also pointed out by the Supreme Court that the meaning of

the word ""residence"" has to depend upon the context and that Section 488 Crl.P.C is intended to serve a social purpose and also to enable a

deserted wife or a helpless child to get urgent relief against the husband or the father as the case may be, in a place where he resides, permanently

or temporarily, or where he last resided, or even where he happens to be at the time the proceedings are initiated. Such consideration cannot be

applied with reference to Section 9(1) of the Act. On a consideration of the evidence it has already been found that the settled home of the first

appellant and the minors is only Komarapalayam, where they had ordinarily resided and as there has been no manifestation of any intention to

abandon that as a home or abode, it must be held that the minors ordinarily resided only at Komarapalayam and not at Kote village. The

proceedings u/s 25 of the Act initiated by the respondent were thus properly laid before the District Court at Salem.

(emphasis supplied)

A bare perusal of it would clearly spotlight and indicate that in the peculiar facts and circumstances of that case, this Court held that the minor''s

ordinary place of residence cannot be taken as the one of the mother, but it was only the residence of the father. This Court adverted to in the

decision cited supra, the evidentiary aspect of the matter and also the fact that the wife never abandoned the family residence at Komarapalayam.

Hence, the learned Judge of this Court held that in those circumstances, intention cannot be imputed to the minors that they abandoned the family

residence at Komarapalayam. But here, absolutely there is nothing to convey and connote that the wife along with her child did not start residing at

Salem ordinarily. As such, oblivious of the factual circumstances involved in this case, the cited precedent cannot be applied to this case. In the

cited case supra, the Court has not rendered its verdict that irrespective of the factual circumstances whenever a father files an application invoking

the provisions of the Guardian O.P for the custody of the child, the previous place of residence of the child, viz., the child''s stay with the father,

should blindly be taken. Here, the pleadings would reveal that according to the husband, the wife along with the child left the matrimonial home of

her own accord and virtually abandoning the plaintiff. As such from the husband''s point of view, there was abandonment of the residence of the

plaintiff and in such a case, he cannot now try to apply the cited decision supra, which is based on the concept, abandonment of residence.

It is also in the pleadings that according to the wife, the child concerned is studying third standard at Salem in a reputed school. Whereas the

husband/revision petitioner filed divorce application at Tindivanam, which is within the Villupuram District. It is therefore clear that there was no

infirmity on the part of the lower Court in giving a finding that the ordinary place of residence of this child concerned is at Salem.

At this juncture, my mind is reminiscent and redolent of the famous maxim Salus populi suprema lex (The welfare of the people is the supreme

law). As such, the welfare of the minor should be considered. When proceedings relating to custody of the child is held at Salem itself, then the

Salem Court Judge would be able to personally hear the child easily. But on the other hand, if the proceedings are held at the Principal District

Court at Villupuram, the child has to travel along with the mother to Villupuram sacrificing his education. As such taking into account the practical

difficulties also, I am of the considered opinion that the proceedings should be held only at Salem.

Hence, in this view of the matter I could see no infirmity in the order passed by the lower Court. Accordingly, there is no merit in this this Civil

Revision Petition and the same is dismissed. No costs.