Mrs. Prajakta George Robin vs Mr. George Robin
2004 Latest Caselaw 717 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. Heard Counsel appearing for the parties.

2. Rule. Rule made returnable forthwith by consent.

3. As short question is involved, the matter is taken up for final disposal forthwith, by consent.

4. This Petition under Article 227 of the Constitution of India takes exception to the order passed by the Additional District Judge, Kalyan dated March 23, 2004 below Exhibit 13 in Civil M.A. No. 80 of 2003. The Respondent husband filed said Civil M.A. No. 80 of 2003 dated 23rd November 2003 for custody of the minor child Angelia, who was, at the relevant time, in the custody of the Petitioner mother at Thane. The Petitioner and Respondent, after marriage, stayed together at Byculla, from where they were required to shift to Kalyan and have purchased flat at Kalyan. The Petitioner, however, filed application Exhibit 13 before the Trial Court, questioning the jurisdiction of the Court at Kalyan to proceed with the hearing of the proceedings on the ground that the Petitioner along with her minor child, were staying at Thane at the relevant time, particularly when the Application was filed by the Respondent on 23rd November 2003. The Trial Court has rejected that application against which, the present Petition has been filed. The argument of the Respondent to oppose this Petition, is that, Section 9 of the Guardians and Wards Act postulates ordinary residence of the child to vest jurisdiction in the Court to try the proceedings under the said enactment. It is contended that since the child was ordinarily residing at Kalyan and the flat was purchased by the Respondent, which is at Kalyan, that being the ordinary place of residence, only the Kalyan Court will have jurisdiction to try and adjudicate the matter in issue. The buttress this contention, reliance is placed on the decisions - Bhagyalakshmi and Anr. v. K. Narayan Rao, - Konduparthi Venkateshwaru and Ors. v. Ramavarapu Viroja Nandan and Ors. and AIR 2003 Allahabad 317 - Jagdish Chandra Gupta v. Dr. Ku.Vimla Gupta.

5. Having considered the rival submissions, the argument canvassed on behalf on the Respondent clearly overlooks the fact that Kalyan is within the District of Thane and the District Court Thane has jurisdiction to try and adjudicate the application under Section 9 of the Act. Indeed, Court has been established also at Kalyan, manned by the Additional District Judge, but the fact remains that Kalyan is within the District of Thane and Section 9 of the Guardians and Wards Act would require proceedings to be taken out before the District Court and the principal seat being at Thane, the decisions which are pressed into service will be of no avail.

6. Be that as it may, in my opinion, the controversy between the parties can be resolved, having regard to the peculiar facts of the present case that the Petitioner along with the child, is presently staying at Thane, which is not very far away from Kalyan; the Respondent will have no difficulty in contesting the proceedings before the District Court at Thane. To do substantial justice in the matter, in my opinion, the appropriate course, is to direct transfer of the proceedings from the Additional District Judge, Kalyan to the District Court at Thane. Such an order would meet the ends of justice.

7. The Application as preferred by the Petitioner, therefore, succeeds to the above extent only. If such an order is passed, it is not open to the Petitioner to contend that the District Court, Thane, will have no jurisdiction to try and adjudicate the matter and the Counsel for the Petitioner fairly accepts that position.

8. In the circumstances, Petition succeeds on the above terms. No order as to costs.

9. As the proceedings are transferred to the District Court at Thane, the District Judge will pass necessary consequential orders and mark the case to appropriate Additional District Judge at Thane, who, in turn, shall decide the proceedings in accordance with law. If parties make application for early hearing, that request may be considered by the Court, and appropriate orders be passed, as may be advised in the matter.

10. All concerned to act on the zerox copy of this order, duly authenticated by the Sheristedar of this Court.