Bombay High Court

Prakash Balkrishna Naidu vs Sou. Shashanka Prakash Naidu on 19 December, 2017

Bench: S.B. Shukre

                                           1                952Jud.AO 43.17 .odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH : NAGPUR

                  Appeal Against Order (A.O.) No. 43/2017


 Appellant/(Original Petitioner):-

                                      Shri Prakash Balkrishna Naidu,
                                      aged about 42 yrs., Occ. Legal
                                      Practitioner, R/o. 244,
                                      Chhatrapati Nagar, Nagpur.


                                  Versus


 Respondent/(Original Respondent):-

                                      Sou. Shashanka Prakash Naidu,
                                      aged about 34 yrs., Occ. Nil,
                                      R/o. D.No.4-457/A, Nava Bharat
                                      Nagar, near Bommuru Junction,
                                      Rajmundry (Rasta) East
                                      Godawari District, Andhra
                                      Pradesh.


 Shri V. V. Bhangde, Advocate for appellant.
 Shri G. L. Bajaj, Advocate for respondent.
 ___________________________________________________________________________


                               CORAM : S. B. SHUKRE, J.

                               DATE      : 19.12.2017.

 Oral Judgment :

Heard finally by consent of both the parties.

2. Admit.

3. This appeal is preferred against the order dated

12.09.2017 passed by the learned Judge, Family Court No.2

Nagpur. By this order, the learned Judge returned the petition

2 952Jud.AO 43.17 .odt

holding that the Family Court at Nagpur does not have

jurisdiction to try the petition filed under Sections 7, 12 and 25

of the Guardians and Wards Act, 1890 seeking orders as to

guardianship, interim protection and custody of the minor, a

daughter aged about 7 years. Therefore, the petition came to

be returned to the appellant for it's being presented to a Court

having jurisdiction over the issue involved in the petition,

which in the opinion of the Family Court No. 2, Nagpur was

District Court, Rajamundry, Andhra Pradesh.

4. I have gone through the paper book of the case

which is part of this appeal and also the impugned order. I

have heard learned counsel for the appellant and the learned

counsel for the respondent. The only point that arises for my

determination is:-

"Whether the family court at Nagpur has jurisdiction to try the petition?

5. According to the learned counsel for the appellant,

the impugned order is illegal and therefore, it deserves to be

quashed and set aside. He submits that since birth, the minor

child of the parties was a resident of Nagpur and that she

even pursued her education at Nagpur till she was removed

unilaterally and illegally from the custody of the appellant by

the respondent. The date of removal of the minor from the

3 952Jud.AO 43.17 .odt

custody of the appellant was of 21.11.2016, as submitted by

the learned counsel for the appellant. He submits that Section

9(1) of the Guardians and Wards Act 1890 confers the

jurisdiction over that Court which is situated at a place where

the minor ordinarily resides. In the fact situation of this case,

he further submits, the ordinary place of residence of minor

could not have been anything else but Nagpur. He also

submits that even as regards the issue of jurisdiction of

Nagpur Court, the Hon'ble Supreme Court did not think that

Nagpur Court had no territorial jurisdiction when it dismissed

the Transfer Petition bearing Transfer Petition (Civil) No.

95/2017 filed by the respondent seeking transfer of the

petition from Nagpur Court to Rajamundry Court, Andhra

Pradesh by its order dated 14.02.2017. So, he further submits

that the preliminary objection taken by the respondent on the

territorial jurisdiction of Nagpur Court was barred by principle

of res judicata.

6. Shri Bajaj, learned counsel for the respondent

submits that there is no need for any interference with the

impugned order. He submits that it is an admitted fact that

after minor was shifted to Rajamundry by the respondent, the

minor was admitted to a School at Rajmundry and that now

she is residing at Rajamundry. He submits that the expression

"ordinarily resides" used in Section 9(1) of the Guardians and

4 952Jud.AO 43.17 .odt

Wards Act has to be understood in the context of the intention

of the parties and in a case like this, intention would be that of

a mother i.e. the respondent, with whom the minor is residing.

He also submits that there is nothing like inter-parental

kidnapping and at the most, the shifting of minor as in the

present case, could be considered to be relocation of the

minor, done for minor's welfare and better future. He points

out that the Law Commission has proposed a new bill to make

suitable amendments to the Guardians and Wards Act so as to

allow relocation of minor in order to achieve the ultimate

object of securing his/her welfare. On the submission of the

issue being decided by the Hon'ble Apex Court and bar of res

judicata, he submits that basically the transfer application

could not be considered to be a suit and that the respondent

had never taken any preliminary objection on territorial

jurisdiction of the family court at Nagpur before the Hon'ble

Apex Court and therefore, the principle of res judicata cannot

come into play in the present case.

7. Section 9(1) of the Guardians and Wards Act lays

down that it is that District Court where the minor ordinarily

resides which will have the jurisdiction under the Act. In the

case of Ruchi Majoo Vs. Sanjeev Majoo reported in

(2011) 6 SCC 479 relied on by both the sides, Hon'ble Apex

Court has held that Section 9(1) prescribes a solitary test for

5 952Jud.AO 43.17 .odt

determining the issue of jurisdiction and it is of "ordinary

residence" of the minor which is primarily a question of

intention which in turn is a question of fact. In the case of

Prashant Chanana Vs. Seema @ Priya reported in AIR

2010 Punjab and Hariyana 99 , the learned Single Judge of

Punjab and Hariyana High Court has held that words,

"ordinarily resides" mean regular, normal, settled home or a

regular place of abode and not temporary or forced stay. In

the case of Hariom Ram Pratap Vs. Sunil reported in AIR

2011 Rajasthan 138, it is held that ordinary residence of

minor means the residence of minor prior to his removal from

custody of his father rather than present place of residence.

In the case of Ramnivas Bansilal Sharma & ors. Vs.

Shakuntalabai Bansilal Sharma & ors reported in

2015(6) Mh.L.J. 932 , the learned Single Judge of this Court

also took the same view, when he held that when a minor is

removed from one place and taken to another place in

questionable circumstances, the place where he is so taken

would not be considered as the minor's residence. Same view

has been taken by the learned Single Judge of Delhi High

Court in Amrit Pal Singh Vs. Jasmit Kaur reported in AIR

2006 Delhi 213. The learned single Judge of Delhi High Court

described in this case unilateral shifting of residence of minor

by one of the parents as "inter-parental kidnapping" and

6 952Jud.AO 43.17 .odt

observed that it would not take away the jurisdiction of the

Court at former place from where the minor was taken away.

Even in the case of Dinesh Prasad s/o. Late Saryug Sah

Vs. Reena Soni W/o Dinesh Prasad d/o. Sri Ram Lakhan

Soni & ors reported in 2010 SCC Online Pat 2085 , Patna

High Court points out by following the law laid down by the

Hon'ble Apex in the case of of Union of India Vs. Dudh

Nath Prasad reported in 2000(1) PLJR (SC) 71, that the

expression "ordinarily resides" has to be understood with

reference to an intention to stay at that place for considerably

long time and it would not include a flying visit or a short or

casual presence at that place. Similar view is expressed in the

case of Kamal Maini Vs. Natasha @ Mona & ors.

reported in 2015 SCC Online P & H 12445.

8. The sum and substance of the discussion made in

the earlier paragraph is that in order to determine the issue of

territorial jurisdiction, only thing that a Court is required to do

is to find out where the minor ordinarily resides. The

ascertainment of the place of ordinary residence of minor

would depend upon the intention of the parties and the

intention of the parties, cannot be ascertained just from the

perspective of only one of the parents. It has to be taken to

be an intention expressed by both the parents upto the point

the issue of jurisdiction is decided or where father and mother

7 952Jud.AO 43.17 .odt

are at loggerheads, it has to be taken as intention of that

parent who, in law, can be considered to be entitled to the

custody of the child or where the question of custody is

subjudice, it has to be taken as intention of both the parents

upto the point when differences between them arose.

9. In the present case, there is no order passed by any

Court about granting of custody to either of the parents so far.

Therefore, this Court would have to ascertain from the facts

present on record as to what was the intention of both the

parents upto the point of discord occurring between them so

that the question of ordinary place of residence of the minor

can be resolved appropriately.

10. The admitted facts present on record, in my view,

throw a clear light on the intention of the parents till the minor

was shifted, and they are stated now. The minor, in the

present case, a daughter, was born at Nagpur on 03.08.2010

and till 21st November, 2016, the minor resided at Nagpur. The

minor had her education both in school and kindergarten at

Nagpur. The minor was, when she was taken away on 21 st

November, 2016, studying in 1 st standard of primary school at

Nagpur which was named the "Centre Point School, Nagpur"

and her admission in this School continues even today. The

minor was taken away from the custody of the appellant,

8 952Jud.AO 43.17 .odt

without his consent, on 21.11.2016 and then, the minor was

admitted to a School of Rajamundry, Andhra Pradesh again

unilaterally. Presently, the minor is actually studying at

Rajamundry, Andhra Pardesh. The appellant now, is also

seeking custody of the minor, apart from his being appointed

as her guardian.

11. These admitted facts clearly show as to what was

the intention of the appellant and the respondent since the

birth of their daughter in the year 2010 till 21.11.2016 when

the respondent unilaterally took away the child from Nagpur

and relocated her at Rajamundry in what was to be her own

move disapproved by the appellant. Their intention, since

birth of the child till the point of discord occurring between

them thus, was to keep the child at Nagpur only for all

purposes; residential, developmental and educational thereby

making Nagpur as ordinary residence of their minor daughter.

The act of shifting of minor from Nagpur to Rajamundry by the

respondent, being without consent of the appellant, was

unilateral and hardly expressive of the intention of the

parents, as understood by law. This being so, Rajamundry

cannot be seen as a place where the minor ordinarily resides

or the minor would have interest to adopt it as her ordinary

place of residence eventually, at least for the present. If there

is any evidence led suggesting another inference, it would be

9 952Jud.AO 43.17 .odt

a different matter. But, that would depend upon what

evidence is ultimately adduced by the parties and that could

be only when the case is tried on merits. But, till that

happens, the admitted facts would reasonably demonstrate

that the ordinary place of residence of the minor in the

present case is none other than the city of Nagpur.

12. This brings me to the other submission of the

learned counsel for the respondent. There is a 257 th report

submitted by the Law Commission. Perusal of the report

shows that the Law Commission has come out with a concept

of relocation of child and would prefer to term shifting of child

from one place to another as relocation of the child, as long as

it is in the best interest of the child. The Law Commission has

also proposed a bill for giving legal effect to the concept of

relocation and the draft bill is annexed to the report. The

learned counsel for the respondent would submit that even in

the present case, the shifting of the minor must be viewed as

her relocation done to secure her welfare, and should not be

her termed as "inter-parental kidnapping",. I would say, in the

first place, the shifting has not been seen by me as "inter-

parental kidnapping" and in the second place, the concept of

relocation itself has not been legally born as proposed by the

Law Commission. So, this Court can not consider the

proposition and put it into practice. Presently, going by the

10 952Jud.AO 43.17 .odt

settled law and admitted facts, discussed earlier, I find that

the ordinary place of residence of the minor in the present

case is of Nagpur.

13. There is also an argument made about the

applicability of principle of res judicata and its non-

applicability by rival parties. However, I do not see that there

is any need for this Court to go into this aspect of the case.

This matter can be decided only on the basis of Section 9(1) of

the Guardians and Wards Act and the facts established on

record and infact, has been decided accordingly.

14. Learned counsel for the respondent has also relied

upon some more cases which are as follows:-

                   (I)              Sushil Kumar Mehta Vs Gobind Ram
                                    Bohra (dead) & ors reported in (1990) 1,
                                    SCC 193.
                   (II)             Zuari Cement Ltd. Vs. Regional Director,
                                    Employees' State Insurance
                                    Corporation, Hyderabad & ors. Reported
                                    in (2015) 7 SCC 690.
                   (III)            Cantonment Board & anr. Vs. Church of
                                    North India reported in (2012) 12 SCC

These cases lay down a principle that doctrine of

res judicata cannot be applied to determine the issue of

jurisdiction in a case where it is considered to be a pure

question of law. There can be no dispute about this principle

of law, but as I said earlier, the dispute involved in this appeal

being capable of resolving by applying the solitary test of

11 952Jud.AO 43.17 .odt

"ordinary residence" of minor prescribed in Section 9(1) of the

Guardians and Wards Act and has been accordingly decided,

there is no occasion for me to consider application or

otherwise of the said principle here in this case.

15. On going through the impugned order, I find that