* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. (Main) No.1075 of 2008 & C.M. Appl. No.13409 of 2008
% 06.04.2010
MS. SUMEET ......Petitioner
Through: Mr. Jagdev Singh & Mr. Rohan Basoya,
Advocates.
Versus
ANUPAM GUPTA ......Respondent
Through: Mr. Sanjay Agnihotri, Advocate.
Date of Reserve: 11th March, 2010
Date of Order: 6th April, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. By present petition, the petitioner has assailed order dated 29th August, 2008 whereby the learned Guardianship Judge decided issue of jurisdiction against the petitioner.
2. Brief facts relevant for the purpose of deciding this petition are that the respondent filed a petition under Section 25 of the Guardian & Wards Act in respect of custody of ten year old daughter on various grounds. In the petition filed by the respondent, the respondent gave one Delhi address of the present petitioner alleging that petitioner was living at S-342, First floor, Greater Kailash-II, New Delhi with one Mr. Rajeev Shawhney. However, the show cause notice of this petition under Guardianship Act was not served on the petitioner at Delhi address but was served at Gurgoan address, namely, S-1/8, DLF Phase-III, Gurgaon, Haryana. It is apparent from the service of notice that the respondent had deliberately given incorrect address of the petitioner in the custody petition. After service of notice, the petitioner moved an application under Order VII C.M. (M) No.1075/2008 Page No.1 of 3 Rule 11 CPC before the Guardianship Judge that Guardianship court had no jurisdiction. This application was dismissed by the Trial Court.
3. A perusal of order of the Guardianship court would show that no dispute was raised that the petitioner was living at Gurgaon with the daughter about whose custody the petition was filed. However, the Guardianship Judge brushed aside the objection to his jurisdiction holding as under :-
"But in my considered view even if the respondent is believed that she is living with 10 yrs. old Baby Sahaj at Gurgaon, still jurisdiction of this Court is not ousted. Although things would have been different had the child not completed five years of age, but since the child is more than 10 yrs. old, by virtue of Section 6 of the Hindu Minority Act the ordinary place of residence of child has to be regarded as Delhi where her father resides for the purposes of this trial."
4. Section 9 of the Guardian & Wards Act which gives jurisdiction to the court to entertain a petition reads as under :-
"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."C.M. (M) No.1075/2008 Page No.2 of 3
5. It is apparent from perusal of Section 9 of Guardian & Wards Act that it makes no distinction between a child of age of five years or age of ten years. This distinction between the child of age of five years or ten years has been wrongly drawn by the court below. Neither a petition under Guardian & Wards Act can be entertained at the place of residence of legal guardian. The court below had wrongly drawn inference from Section 6 of Hindu Minority Act to hold that the place of residence of father will be the place of ordinary residence of the child, even if the child was not living with the father. Thus, the order passed by the learned Additional District Judge is patently illegal and contrary to settled legal position.
6. Only that district court has jurisdiction to entertain a petition under Guardian & Wards Act in whose jurisdiction the minor child ordinarily resides. The sole criterion is the ordinary residence of minor and not the ordinary residence of father or the mother. If the minor is residing with grandparents and father and mother are living somewhere else, it will be the place of residence of minor child i.e. the place of residence of his grandparents & the district judge of that place will have territorial jurisdiction. There is no influence of Section 6 of Hindu Minority Act on the provisions of Guardian & Wards Act. Neither the provisions of Guardian & Wards Act are to be read under the shadow of Hindu Minority Act.
7. The order of the leaned Additional District Judge being without jurisdiction is hereby set aside and it will be the court at Gurgaon which will have jurisdiction to entertain the petition under Guardian & Wards Act. This petition is allowed and it is held that Guardianship Judge at Delhi will have no jurisdiction to entertain the petition.
SHIV NARAYAN DHINGRA J.
APRIL 6, 2010 'AA' C.M. (M) No.1075/2008 Page No.3 of 3