Narayana Bala Bharathi vs Vishal Gagan
2013 Latest Caselaw 4847 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                  Decided on: 22.10.2013
+     MAT.APP.(F.C.) 19/2013, C.M.                  APPL.    7439/2013,
7440/2013, 7441/2013 & 11344/2013

       NARAYANA BALA BHARATHI              ..... Appellant
                   Through: Sh. S.K. Pandey, Advocate.

                          versus

       VISHAL GAGAN                              ..... Respondent

Through: Sh. Sudhir Nandrajog, Sr. Advocate with Sh. Vinod Diwakar and Sh.

Rana Kumar, Advocates.

Respondent in Person.

Sh. R.S. Goswami, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The present appeal is directed against an order of the Family Court of 15.01.2013, rejecting the appellant/wife's application for return of the proceedings on the ground that the Court lacked territorial jurisdiction. The appellant wife had applied under Order VII Rule 11 CPC, contending that the minor son whose guardianship was sought in the substantive proceedings pending before the Family Court did not ordinarily reside in Delhi within the territorial limits of the jurisdiction of the Court but in Bangalore.

MAT. APPL(F.C.)19/2013 Page 1

2. The parties to the guardianship proceedings, filed by the husband (respondent in this case), were married on 29.01.2001. Apparently they had, on account of differences, parted company in 2007. Their only child - a son - continued to stay with the wife - the appellant. The facts on record establish that the son was admitted to the Sanskriti School in New Delhi in 2009. He continued to stay there till the child was taken to Bangalore on 20.03.2012. The facts on record also disclose that the husband filed guardianship proceedings, claiming custody under Section 9 of the Guardians and Wards Act, 1890 on 05.03.2012. Taking into consideration all these circumstances, the Trial Court rejected the appellant's contentions that it lacked territorial jurisdiction.

3. It is urged by the counsel that the Trial Court fell into error in not noticing that the child did not ordinarily reside in Delhi and that his stay upto March 2012 was on account of "compelling circumstances". Learned counsel submitted in this regard that the wife had been transferred to Bangalore on 20.10.2011; a copy of the transfer order issued by the Ministry of Home Affairs, Government of India was relied upon, for this purpose. It is submitted that in these circumstances, the child's sojourn beyond October 2011 was only to facilitate his completion of that academic year and his being taken to Bangalore meant that he is ordinarily a resident of Bangalore and not Delhi. Learned counsel relied upon the decision of the Supreme Court reported as Ruchi Majoo v. Sanjeev Majoo 2011 (6) SCC 479.

4. The Court has considered the submissions of the parties and materials on record. It is undisputed that the parting of ways as it were

MAT. APPL(F.C.)19/2013 Page 2 took place in 2007. Concededly the wife who had and continues to have custody of the son, admitted him to the aforementioned Sanskriti School in 2009. Granted that the wife was transferred to Bangalore with effect from 2011, yet the fact that the child ordinarily resided in Delhi - on account of his studies as on 05.03.2012 is undisputable. The argument that this was on account of 'compelling circumstances" such as the child having to complete the academic year, in this Court's opinion, is unpersuasive. Having admitted the child to a school in Delhi, where he continued to study (from 2009 to 2012) at the time when the guardianship petition was filed, the wife could not contend that since she was transferred to Bangalore and the son had to necessarily accompany her, and, therefore, the Delhi Court lacked jurisdiction. The reliance placed on Ruchi Majoo (supra) is inapt in these circumstances. In fact in that judgment the Supreme Court observed that, "unilateral reversal of a decision by one of the two parents could not change fact situation as to the minor being an ordinary resident......." of the place where he normally studied.

5. In view of the above conclusions, the appeal lacks merit; it is accordingly dismissed along with pending applications.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 22, 2013

MAT. APPL(F.C.)19/2013 Page 3