Smt. Jyotsna Singh vs Saurabh Singh
2017 Latest Caselaw 7014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 10
 
Case :- FIRST APPEAL No. - 9 of 2016
 
Appellant :- Smt. Jyotsna Singh
 
Respondent :- Saurabh Singh
 
Counsel for Appellant :- Yogendra Kumar Srivastava,Deepak Kumar Kulshrestha
 
Counsel for Respondent :- Ali Hasan,Ram Chandra
 

 
Hon'ble Arun Tandon,J.

Hon'ble Rajiv Joshi,J.

(Delivered by Hon'ble Rajiv Joshi,J.)

This appeal under Section 19 of the Family Court Act has been filed against the order dated 5.12.2015 passed by the Principal Judge, Family Court Agra, whereby the preliminary objection as raised vide application/objection (Paper No. 17 C) has been rejected.

The necessary facts for consideration of this appeal, are as under:

The appellant-wife, Smt. Jyotsna Singh, was married with the respondent-Saurabh Singh on 3.5.2009 as per the hindu rites and rituals. A male child namely, Surya, was born on 2.12.2011 out of their wedlock at Ghaziabad. Subsequently, the wife along with her minor child, started living at Bhopal w.e.f. 28.12.2011 at her parents' house.

An application was filed by the respondent-husband on 29.5.2013 under Section 25 of the Guardians and Wards Act, 1890 before the Family Court, Agra registered as Case No. 858 of 2013 with the relief that the custody of the person of minor child, namely, Surya be given to the husband by declaring him as natural guardian.

It is stated in the application that the relation between the husband and wife became so strained and after three weeks from the date of the birth of the child, the wife shifted to his parents' house at Bhopal and started residing there. The husband several times approached the wife but she refused to live with him.

The appellant-wife raised a preliminary objection vide application (Paper No. 17 C) about the maintainability of application for appointment of Guardian on the ground that the Family Court at Agra has no jurisdiction.

In response to the application (Paper No. 17 C), the husband in his objection stated that he is permanent resident of Agra and the same is also the permanent residence of his son and therefore, the application for appointment of guardians of the minor filed before Family Court at Agra is within jurisdiction.

The Principal Judge, Family Court, Agra vide order dated 5.12.2015 rejected the preliminary objection of the appellant-wife by recording that since the husband is permanent resident of Agra, therefore, it is presumed that the permanent residence of the minor child is also at Agra and the Family Court of Agra is having jurisdiction to entertain the application filed under Section 25 of the Guardians & Wards Act, 1890. The said order dated 5.12.2015 passed by the Principal Judge, Family Court, Agra is under challenged by the appellant-wife in this appeal.

We have heard Sri Y.K. Srivastava, counsel for the appellant and Sri Ishtiyak Ali, Advocate, holding brief of Sri Ali Hasan, counsel for the respondent.

Counsel for the appellant submitted that while deciding preliminary objection with regards to the jurisdiction as raised by the appellant-wife, the Family Court failed to consider the provisions of Section 9 of the Guardians & Wards Act, which clearly provides that the suit for custody of the person of the minor child can be instituted only at the place, where the child ordinarily resides and since, the child is residing at Bhopal, the Family Court at Agra will have no jurisdiction to entertain the said case.

On the other hand, counsel for the respondent refuted the submission as raised by the counsel for the appellant and supported the impugned judgement. It is submitted by the respondent that the father of the child is a permanent resident of Agra and therefore, his minor child should be treated to be a permanent resident of Agra and the application filed by him for the custody of the person of the minor child at Agra is very well maintainable as the Family Court, Agra has got the jurisdiction.

He further submits that the residence of appellant-Smt. Jyotsna Singh at her parental house at Bhopal is only temporary and cannot be said to be a permanent as she is in service in Bhopal unit of BHEL, which is transferable in nature. She can be transferred anytime outside Bhopal.

It is further submitted by the counsel for the respondent that Smt. Jyotsna Singh filed two transfer applications being Transfer Petition (Civil) No. 1247 of 2013 and Transfer Petition (Civil) No. 1252 of 2013 before the Hon'ble Apex Court under Section 25 of the Code of Civil Procedure, 1908 by which she had sought the transfer of two cases i.e. Case No. 858 of 2013 (the present case) and Case No. 829 of 2013 filed under Section 13 of Hindu Marriage Act, which were pending at Agra. The Apex Court vide order dated 4.4.2014 dismissed both the said transfer applications. Therefore, the Principal Judge, Family Court, Agra has rightly held the application under Section 25 of the Act to be maintainable.

We have considered the submissions of counsels appearing on behalf of the appellant and the respondent and perused the record.

The short question for consideration before this Court is whether the order impugned suffered from any illegality and the Family Court at Agra has jurisdiction to entertain the application filed by the husband under Section 25 of the Guardians and Wards Act or not.

Section 9 of the Guardians and Wards Act, 1890 makes specific provisions as regards to jurisdiction of the Court to entertain the claim for grant of custody of a minor.

Clause 1 of Section 9 of the Guardians and Wards Act, 1890, read 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."

It is apparent from the reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the place of "ordinary residence" of the minor. The expression used is "where the minor ordinary resides".

It is admitted between the parties that the minor child was born on 2.12.2011 at Ghaziabad out of the wedlock between the appellant and the respondent. Subsequently, in less than three weeks i.e. on 28.12.2011, the wife shifted to her parents' house at Bhopal along with the child and since then they are residing there. It is not disputed by the counsel for both the parties that the minor child namely, Surya never resided at Agra and is still living at Bhopal.

Under these circumstances, the minor cannot be said to be permanent resident of Agra as held by the Family Court. The Family Court has recorded the said finding on the basis of the fact that the father is permanent resident of Agra. The jurisdiction of the court as per the Section 9 (1) of the Guardians and Wards Act is the place where the minor 'ordinarily resides'. In the facts on record, it cannot be said that the minor 'ordinarily resides' at Agra. The Family Judge totally ignored the provisions of Sub Section (1) of Section 9 of the Guardians and Wards Act, 1890.

Counsel for the appellant in support of his contention has placed reliance on the judgement of the Hon'ble Apex Court in the case of Ruchi Majoo Vs. Sanjeev Majoo reported in 2011 AIR SCW 3311 and contended that the word "ordinary residence" of minor means the place where the minor ordinarily resides, which in the present case is the Bhopal.

The paragraphs 14, 15, 16 and 17 of the said judgement are quoted as under:

"14.It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9(1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:

"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."

15. The word `reside' has been explained similarly as under:

"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)"

16. In Websters dictionary also the word `reside' finds a similar meaning, which may be gainfully extracted:

"1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in"

17. In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41 the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the district Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application their Lordships of the Privy Council observed:

"The district court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act 1890. By the ninth Section of that Act the jurisdiction of the court is confined to infants ordinarily residing in the district.

It is in their Lordship's opinion impossible to hold that the infants who had months previously left India with a view to being educated in England and going to University had acquired their ordinary residence in the district of Chingleput."

So far as the rejection of transfer applications filed by the appellant-wife by the Apex Court is concerned, the power to transfer the suit etc. from one High Court or Civil Court to High Court or Civil Court of another State under Section 25 of the Code of Civil Procedure, 1908 is permissible on the ground of inconvenience. The issue of territorial jurisdiction is quite different. It has to be decided as per Section 9 of the Guardians and Wards Act, 1890. The order of the Apex Court dated 4.4.2014 relied upon by the husband will not have the effect of conferring jurisdiction not vested in the Family Court at Agra.

In view of the above discussions, we are of the view that the Family Court, Agra has no jurisdiction to proceed with the case.

The impugned order dated 5.12.2015 passed by the Principal Judge, Family Court, Agra is hereby set aside. The appeal is accordingly, allowed.

The Principal Judge, Family Court, Agra is directed to return the application filed by the respondent for appointment of guardians of the person of minor under Section 25 of the Guardians and Wards Act, 1890 to the applicant/respondent for presentation before the competent court having jurisdiction to try the same.

Order Date :- 17.11.2017

Noman