Delhi High Court
Ms. Sumeet vs Anupam Gupta on 6 April, 2010
Author: Shiv Narayan Dhingra
* 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
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."
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'
