Ms. Piyali Das Gupta vs Sh Shantanu Das Gupta
2014 Latest Caselaw 5756 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: November 12, 2014
+     CRP 22/2014

      MS. PIYALI DAS GUPTA                            ..... Appellant
                     Through:         Mr. Manuj Aggarwal, Advocate


                         Versus


      SH SHANTANU DAS GUPTA                   ..... Respondent
                   Through: Ms.Jaya Tomar, Advocate with
                            respondent in person.

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Vide impugned order of 18th January, 2014 petitioner's application under Order VII Rule 11 of CPC stands dismissed in proceedings under the Guardians and Wards Act, 1890. Rejection of the respondent's petition under Section 7 and 25 of the Guardian and Wards Act was sought on the ground of the lack of territorial jurisdiction while relying upon Section 9 of the Guardian and Wards Act.

At the hearing of this petition, learned counsel for petitioner had drawn the attention of this Court to Section 9 of the Guardian and Wards Act and had submitted that the Court within whose jurisdiction a minor child ordinarily resides can deal with such an application and in the instant case, the minor child is residing in Malaysia since the year 2012

C.R.P.No.22/2014 Page 1 and prior thereto, he was residing with his mother i.e., petitioner in Gurgaon and the Courts at Delhi have no territorial jurisdiction. Attention of this Court was drawn to paragraph No. 60 of respondent's petition under Section 7 and 25 of the Guardian and Wards Act, 1890 which reads as under:-

"That the Hon'ble Court has got territorial jurisdiction to entertain the present petition as the minor daughter was visiting the parties at Patparganj, Delhi house of the petitioner till April 2012 and was taking dance, art class and tuition in math and science at Patparganj, Delhi and last resided with the petitioner in Patparganj from 10.08.2013 to 16.08.2013 at Patparganj, Delhi of petitioner and the respondent had filed a petition under section 13(1) (iii) of the Hindu Marriage Act, 1955 for the dissolution of marriage by a decree of divorce vide case no. 200/2013 in Karkardooma court and the same is pending adjudication before court of Sh. A. S. Jayachandra, Additional District Judge, Karkardooma courts, Delhi and the next date of hearing in which is 10.09.2013."

It was urged by learned counsel for petitioner that the word 'residence' denotes habitual residence and not a temporary stay and the minor child of petitioner had stayed in Delhi for a brief period only and it will not vest Courts at Delhi with territorial jurisdiction to deal with the

C.R.P.No.22/2014 Page 2 respondent's petition and the convenience of the child and not the parents has to be seen in these proceedings. In support of the above submissions reliance is placed on decisions in Ruchi Majoo vs. Sanjeev Majoo (2011) 6 SC 479; Bharat Vats vs. Garima Vats 2011 (6) ILR (Delhi) 198; Paul Mohinder Gahun vs. Selina Gahun 130 (2006) DLT 524; Mukand Swarup vs Manisha Jain 159 (2009) DLT 118; Arathi Bandi vs. Jagadraksh Rao AIR 2014 SC 919; Gayatri Bajaj Jilen Bhalla AIR 2013 SC 102; Manish Sehgal vs. Minu Sehgal 202 (2013) DLT 87.

On the contrary, learned counsel for respondent had supported the impugned order and had submitted that petitioner had taken the minor child of the parties to Malaysia only for a period of one year and just to deprive respondent of the custody of the minor child and to defeat this petition and the child of the parties is being illegally kept in Malaysia. It was submitted that the powers of this Court are very wide and cannot be restricted to Section 9 of the Guardian and Wards Act, 1890 and this Court ought to exercise its discretion to ensure that respondent's petition is not rendered infructuous due to clever tactics adopted by petitioner. To contend so, reliance is placed upon the judgment in Kamla vs. Bhanu Mal AIR 1956 Allahabad 328.

Upon hearing and on perusal of impugned order, the material on record and the decisions cited, I find that while dealing with the application under Order VII Rule 11 CPC, the averments made in the petition alone are to be taken into consideration. In the face of averments made in Para 60 of the respondent's petition as referred to hereinabove, I find that the question of territorial jurisdiction raised by petitioner is a mixed question of fact and law which cannot be gone into at this initial

C.R.P.No.22/2014 Page 3 stage when petitioner had not even filed the reply to respondent's petition.

Finding no infirmity in the impugned order, this petition is dismissed while leaving the question of territorial jurisdiction open to be considered by the trial court at the appropriate stage.

                                                          (SUNIL GAUR)
                                                            JUDGE
NOVEMBER 12, 2014
mb




C.R.P.No.22/2014                                                    Page 4