Delhi High Court
Vijayanti vs Suraj Suhag on 7 February, 2020
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 07.02.2020
+ CM(M) 393/2019 & CM 10834/2014
VIJAYANTI
..... Petitioner
Through: Mr.Himanshu Gupta, Adv.
versus
SURAJ SUHAG
..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition challenges the order dated 08.01.2019 passed in
GP No. 27/2017 titled, Suraj Suhag vs. Vijayanti, dismissing the
application of the petitioner, which in turn sought dismissal of the
Guardianship Petition on the ground of lack of territorial jurisdiction
of the Court to entertain the petition.
2. The Guardianship Petition has been filed by the respondent
seeking custody of the minor child born from the wedlock of the
parties. The petition was filed on 23.03.2015. In the petition it was
asserted as under:-
"23. That the Respondent has deserted to the
Petitioner on 20.5.2012 and since then she had
CM(M) 393/2019 Page 1
never come back to join the society of the
Petitioner to lead a peaceful married life.
However, she has created mentor torture and
social cruelty on the Petitioner by saying that the
Petitioner has to be agreed to leave everything for
her and the child and starts to live along which is
not possible by leaving a joint family. Therefore,
the Petitioner is in need of custody of the minor
child for her welfare and bright future which is her
birth right to enjoy the social life of the Petitioner
and adopt ancestral values in joint family.
24. That the Respondent used to show disregard to
the parents and other relatives of the Petitioner
and picked up quarrel with them by calling them
rustic. The Respondent left the marital home,
without the permission of the Petitioner on
20.5.2012 and started to live alone as per her wish
and desire. This is crystal clear that the living
standard of the Petitioner is better than
Respondent and deserves custody of the minor
child being natural guardian and has been living in
joint family.
xxxxxx
30. The Court is prayed to pass an order for
removing the child from the alleged custody of the
Respondent as the Petitioner is a natural guardian
taking the custody of his minor child into his own
custody to care her in joint family. The Respondent
should hand over the physical custody of child to
the Petitioner after the passing of the order as the
child has completed six years on 24.3.2015."
CM(M) 393/2019 Page 2
3. Interestingly there is no averment in the petition as to how the
Courts at Delhi would have territorial jurisdiction to entertain the
petition.
4. The learned counsel for the petitioner has placed reliance on the
cross-examination of the respondent recorded on 09.11.2015 before
the learned Family Court, Hisar in the Divorce Petition filed by the
respondent himself. The respondent while being cross-examined in the
said petition, has given his residential address as under:-
"PW1 Suraj Suhag aged 34 years son of Sh.
Mahabir Suhag r/o Panihai Mohalla
village and Tehsil Matanhail Distt.
Jhajjar."
5. He further asserted as under:-
"I am MBA from Kurushtra University Campus
in the year 2006. I have been serving in Sham
Indus Power Ltd. Power Solutions Private
Limited in Punjabi Bag, New Delhi from 2006 to
2012. Thereafter I am serving in Riverside
Utilities Private Limited, Bhubaneswar Urisa as
Manager HR. I gets approximately 40,000/- per
month cash in hand. I am interested in telling my
address of Bhuvensher. Self stated it is for
security purpose. I am residing in a rented house
at Bhuveneshwar. It is two room set with kitchen
bathroom etc. I am paying Rs. 10,500/- per
month as rent. I have been residing there since
February 2013......."
CM(M) 393/2019 Page 3
6. The learned counsel for the petitioner submits that in the above
statement the respondent admitted that he himself has been residing at
Bhuveneshwar since 2013.
7. The learned counsel for the petitioner further relied upon a
certificate issued by the St. Sophia Sr. Sec. School, Hisar, which
certifies that the child has been studying in the said school since
09.07.2012.
8. Placing reliance on Section 9 of the Guardians and Wards Act,
1890, the learned counsel for the petitioner submits that the child was,
therefore, ordinarily residing in Hisar and consequently, the Courts at
Delhi will lack territorial jurisdiction to entertain the petition.
9. In spite of repeated opportunity being granted to the respondent,
the respondent has not filed a reply to the petition. Today none has
appeared for the respondent.
10. I have considered the submission made by the learned counsel
for the petitioner. The Impugned Order passed by the learned Judge,
Family Courts, South-East District, Saket, New Delhi dismisses the
application of the petitioner only on the ground that the question of
territorial jurisdiction would be a mixed question of facts and law. The
learned Judge, however, has not considered as to whether in light of
the abovementioned facts, there was any disputed question of fact at
all which needed adjudication. As noted hereinabove, the petition filed
by the respondent itself asserted that the petitioner has left the
matrimonial home on 20.05.2012. It does not, however, state if the
CM(M) 393/2019 Page 4
child remained in the custody of the respondent, that is the petitioner
in the said petition, and if so, when was the child removed from his
custody. Importantly, it does not state that the child remained within
the territorial jurisdiction of the Court in Delhi. The cross-examination
of the respondent was also before the learned Family Court, however,
the Impugned Order makes no reference to the same. Even the school
certificate certifies that the child has been studying in a school in Hisar
since 09.07.2012. In presence of such overwhelming evidence, there
was no disputed question of fact to be determined by the learned
Family Court. The child clearly was not residing within the territorial
jurisdiction of the Court at Delhi.
11. The learned Family Court has also been influenced by the
dismissal of the Transfer Petition filed by the petitioner before the
Supreme Court. The learned counsel for the petitioner submits that the
Transfer Petition was filed primarily on the ground of inconvenience
of the petitioner in defending the petition at Delhi and was dismissed
by the Supreme Court observing that the petitioner will be at liberty to
avail the video conferencing facility to the extent permissible,
however, the question of jurisdiction of the Court had to be
independently examined. I find merit in the said submission. Mere
dismissal of the Transfer Petition would not confer jurisdiction in the
Court which otherwise lacks it. The question of jurisdiction had to be
independently determined by the learned Family Court and for such
determination, dismissal of the Transfer Petition by the Supreme Court
could have no bearing.
CM(M) 393/2019 Page 5
12. In view of the above, I find merit in the present petition. The
same is allowed and the Guardianship Petition, being GP No. 27/2017,
titled Suraj Suhag vs. Vijayanti, pending before the Family Court,
South-East District, Saket, New Delhi is dismissed for lack of
territorial jurisdiction. There shall be no order as to cost.
NAVIN CHAWLA, J
FEBRUARY 07, 2020/rv
CM(M) 393/2019 Page 6
