Bharat Vats vs Garima Vats
2011 Latest Caselaw 1978 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.177/2011
%                                                  5th April, 2011

BHARAT VATS                                        ...... Appellant
                          Through:     Mr.R.K.Saini with
                                       Ms. Aradhna Mittal, Advs.

                          VERSUS

GARIMA VATS                                        ...... Respondent
                          Through:     None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?    Yes

    3.   Whether the judgment should be reported in the Digest? Yes


VALMIKI J. MEHTA, J (ORAL)

CM No.6981/2011(exemption)

              Allowed, subject to all just exceptions.

              Application stands disposed of.

FAO No.177/2011

1.            The challenge by means of this appeal is to the impugned

order dated 19.2.2011 which has dismissed the petition of the petitioner

for want of territorial jurisdiction in view of the Section 9 of the Guardian

and Wards Act, 1890 as per which the petition ought to have been filed

where the minor ordinarily resides, and, the minor was ordinarily found to

be residing with the respondent/mother at Noida in UP.

2.            Minor child was born on 14.11.2008 in USA. After the parties

FAO No.177/2011                                                        Page 1 of 4
 came to India, they resided originally at the house of the petitioner in

Delhi, however subsequently, the mother on account of ill treatment was

forced to leave the matrimonial home along with the minor child and has

thereafter been living in Noida since 4.6.2009.

3.          The learned counsel for the appellant contends that the

mother has illegally taken away the child from the matrimonial home at

Delhi and therefore the Court at Delhi has jurisdiction. This aspect has

been dealt with by the Trial Court in the following portion of the impugned

judgment:

         "The respondent has been staying at her mother's residence
         at Noida continuously since 4.6.2009 along with the minor
         child Master Kapil. The child is reported to be aged about 2
         ½ years and studying in Mother's Pride Play School at Noida.
         The respondent has stayed at her matrimonial home for less
         than one month due to their constrained relations. The child
         has been living in the company of respondent at Noida after
         the parties came from U.S.A.        The petitioner filed the
         present petition under Section 25 of The Guardians and
         Wards Act for custody of minor child Kapil Vats on
         15.9.2010. The petitioner has given respondent's address at
         Noida in his petition. The petition has been filed by the
         petitioner for seeking custody of the minor child after a
         period of more than one year from the date when the
         respondent finally left her matrimonial home along with the
         minor child. It is an admitted case of the parties that the
         respondent has been residing at her parental home since
         February, 2009. Thus, the ordinary place of residence of
         minor is Noida and not Delhi.
            This is not the case of the petitioner that the child was
         stealthily removed or kidnapped by the respondent in order
         to oust the jurisdiction of the court. The respondent has
         been forced to live at her parental home due to the
         constrained relationship with the petitioner. The respondent
         is also reported to be working in Noida. The child has been
         in the care and custody of the respondent continuously since
         4.6.2009 when the respondent finally left matrimonial home.
         On analysis of the pleadings of the parties and the material
         brought on record shows that the ordinary place of
         residence of the minor child is Noida and not Delhi."

FAO No.177/2011                                                 Page 2 of 4
 4.           I completely agree with the observations of the Trial Court

because this is not the case where the child has been stealthily removed

or kidnapped by the respondent to oust the jurisdiction of the Court. The

entire object of Section 9 of the Guardians and Wards Act, 1890 is to see

that welfare and convenience of the minor child is the most important

aspect and therefore it is at the place where the minor ordinarily resides

that a guardian petition has to be filed.        I therefore do not find any

illegality or perversity in the impugned order which calls for interference

by this Court in this appeal on the ground that the Courts at Delhi had no

territorial jurisdiction.

5.           Learned counsel for the appellant then argues that earlier an

application filed on similar grounds was withdrawn and therefore the

respondent could not file the similar application.      At the first blush this

argument     may     appear   attractive,   however,   parties    cannot   confer

jurisdiction on the Court, when the Court has none. This is all the more so

in the Guardianship cases where the welfare of the minor is of prime

importance and a specific statutory mandate is contained in Section 9 that

a petition can only be filed where the minor ordinarily resides.             The

convenience to be seen is neither of the mother nor of the father but of

the minor child, in view of the Section 9. In any case, there is no concept

of application of res judicata or issue estoppel with respect to interim

applications, more so on the issue of territorial jurisdiction.

6.           I find that the present appeal obviously is malafide because it

seeks to harass the respondent and the minor by dragging them to Delhi

although their ordinary residence is at Noida.          Disputes between the
FAO No.177/2011                                                       Page 3 of 4
 parents should not result in the welfare of the minor child being affected,

and which is probably attempted to be done by means of the subject

petition and the present appeal.

7.           Appeal   therefore    being   without   merits   is   accordingly

dismissed.

8.           In my opinion, the Trial Court instead of dismissing the

petition ought to have returned the petition for presentation to the

appropriate Court and therefore when I put it to the counsel for the

appellant that I propose to modify the order by directing return of the

petition instead of rejection of the petition, however, counsel for the

appellant states that he is not making any prayer in this regard for

modification of the order which has dismissed the petition. In view of the

appeal being devoid of merits is therefore dismissed, leaving the parties

to bear their own costs.

CM No.6980/2011(for direction)

             Since the main appeal has been disposed of, this CM is also

disposed of having become infructuous.




APRIL 05, 2011                                       VALMIKI J. MEHTA, J.

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