Tushit Narottam Mapara vs Avanti Tushit Mapara
2021 Latest Caselaw 15005 Guj

     C/CRA/183/2021                           JUDGMENT DATED: 24/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CIVIL REVISION APPLICATION NO.       183 of 2021


 FOR APPROVAL AND SIGNATURE:


 HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

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 1    Whether Reporters of Local Papers may be
      allowed to see the judgment ?

 2    To be referred to the Reporter or not ?

 3    Whether their Lordships wish to see the
      fair copy of the judgment ?

 4    Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                        TUSHIT NAROTTAM MAPARA
                                Versus
                         AVANTI TUSHIT MAPARA
 ==========================================================
 Appearance:
 MR KAMLESH P VAIDANKAR(10135) for the Applicant(s) No. 1
 NILU K VAIDANKAR(8382) for the Applicant(s) No. 1
 MR NEERAJ J VASU(3159) for the Opponent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                          Date : 24/09/2021

                            ORAL JUDGMENT

1. This application is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) against the order dated 17.03.2021 passed below Exh.14 in

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Civil Misc. Application No.201 of 2019 by the Principal Judge, Family Court, Gandhinagar.

2. The brief facts leading to filing of the present revision application are as under:

2.1. It is the case of the present applicant that applicant and present respondent got married on 03.12.2007 and since then they had been staying at Dubai. The couple was blessed with two daughters who are now aged about 11 years and 9 years. It is stated that both the daughters were born and brought-up and have been staying in Dubai. It is alleged that because of the behaviour of the respondent, certain matrimonial disputes arose between the parties. It is stated that the applicant, respondent, their daughters and parents of the applicant used to visit India once in a year to visit their relatives and their native home at Jodhpur. In the year 2018, the entire family visited India, however, at that time, the respondent stayed back at Gandhinagar at her parental home and refused to go back to her matrimonial home. The present respondent, parents of the applicant and both the daughters had visited the house of the respondent at Gandhinagar on 30.06.2018. At that time, the respondent had declared her intention of permanently staying back in India and therefore the parents of the applicant had no choice but to leave for Jodhpur

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along with two daughters of the applicant and respondent.

2.2. It is further stated that the respondent has, thereafter, filed Civil Misc. Application No.201 of 2019 under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act' for short) for restoration of the custody of the minor daughters of the applicant and respondent.

2.3. The present applicant filed an application Exh.14 under Order VII, Rule 11(d) of the Code read with Section 9 of the Act for rejection of the plaint, as the suit is barred by Section 9 of the Act. The present respondent filed reply to the said application, and thereafter, vide impugned order dated 17.03.2021, the concerned Family Court rejected the application Exh.14 filed by the present applicant and therefore this application has been filed by the applicant.

3. Heard learned advocate Mr. Vaidankar for the applicant and learned advocate Mr. Neeraj Vasu for the respondent.

4. Learned advocate for the applicant has referred to Section 9 of the Act and thereafter contended that any application for custody of the minor is to be made before the Court within whose

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local jurisdiction the minor ordinarily resides. In the present case, both the minor daughters are born and brought-up at Dubai. Both the daughters, as per the case of the present respondent also, stayed at Gandhinagar only on 30.06.2018 and therefore when both the minor daughters are ordinarily not residing at Gandhinagar, the Family Court, Gandhinagar has no jurisdiction and therefore the concerned Family Court ought to have rejected the plaint on this ground alone.

4.1. Learned advocate for the applicant has also referred to the reasoning recorded by the Family Court and submitted that even the Family Court has observed that both the minor daughters have temporarily resided at Gandhinagar, in spite of that, while relying on the provisions contained in Section 20 of the Code, the application Exh.14 submitted by the present applicant is dismissed by the Family Court.

4.2 Learned advocate for the applicant has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 SCC 479, and more particularly, referred to para 13 to 16 of the said decision.

4.3. At this stage, learned advocate has also placed reliance upon the decision rendered by the

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Division Bench of Delhi High Court in the case of Jasmeet Kaur v. Navtej Singh, copy of which is placed on record during the course of hearing and thereafter contended that the requirement of Section 9 of the Act is that for an application with respect to the guardianship being maintainable before the District Court, it is a prerequisite that the minor must ordinarily reside within the jurisdiction of that Court. Learned advocate has placed reliance upon the observations made in para 19 to 21 of the said decision.

4.4. Learned advocate for the applicant, therefore, urged that this application be allowed by quashing and setting aside the impugned order passed by the Family Court, Gandhinagar.

5. On the other hand, learned advocate Mr. Neeraj Vasu appearing for the respondent has vehemently opposed this application and contended that the concerned Family Court has not committed any error while passing the impugned order and therefore this Court may not interfere with the said order. Learned advocate has referred to Section 20 of the Code and thereafter submitted that part of the cause of action has arisen in the local limits of Gandhinagar Family Court and therefore application filed by the present respondent before the concerned Family Court is maintainable and the Family Court at Gandhinagar

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is having jurisdiction.

5.1. It is further submitted that question as to whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact and unless the jurisdictional facts are admitted, it can never be a pure question of law capable of being answered without an enquiry into the factual aspects of the controversy. Learned advocate has placed reliance upon the order dated 29.11.2019 passed by this Court in Appeal from Order No.108 of 2019 in the case of Rinky D/o. Arvindbhai S. Varma v. Ravi Narendra Padia. Learned advocate has, more particularly, placed reliance upon para 11 to 13 of the said order.

5.2. Learned advocate for the respondent, therefore, urged that this application may be dismissed.

6. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the present respondent has filed proceedings under Section 25 of the Act being Civil Misc. Application No.201 of 2019 before the Family Court, Gandhinagar for restoration of custody of the minor daughters. Copy of the said application is placed on record at page 15. If the said

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application is carefully seen, it is revealed that the respondent herein has specifically stated in the said application that the custody of the minor daughters was taken away by the in-laws of the respondent herein on 30.06.2018 when the respondent was staying at Gandhinagar. The present respondent has specifically stated about the cause of action of filing an application before the Family Court. In para 20 of the said application, the respondent has also specifically stated why the Family Court at Gandhinagar is having territorial jurisdiction to consider the case of the respondent herein.

7. Now, it is the case of the present applicant, who had filed an application under Order VII, Rule 11(d) of the Code before the concerned Family Court that as per Section 9 of the Act, the Family Court at Gandhinagar has no jurisdiction as both the minor daughters are not ordinarily residing at the said place and both the daughters were born and brought-up at Dubai.

8. At this stage, the provisions contained in Section 9 of the Act are required to be referred to, which read 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

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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."

9. At this stage, the provisions contained in Section 20 of the Code are also required to be kept in view, which provide as under:

"20. Other suits to be instituted where defendants reside or cause of, action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

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(c) the cause of action, wholly or in part, arises.

[* * * *] [Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in[India]or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."

10. In the case of Ruchi Majoo (supra), the Hon'ble Supreme Court has observed as under:

"14. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9 (1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:

"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary;

reasonable; not characterized by peculiar or

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unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."

15. The word `reside' has been explained similarly as under:

"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)"

16. In Websters dictionary also the word `reside' finds a similar meaning, which may be gainfully extracted:

"1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in"

11. Thus, from the observations made by the Hon'ble Supreme Court in para 14 of the said decision, it is clear that whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.

12. In the case of Jasmeet Kaur (supra), the Delhi High Court has observed in para 20 and 21 as under:

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"20. Thus, the requirement of Section 9 is that for an application with respect to the guardianship being maintainable before the District Court, it is a prerequisite that the minor must ordinarily reside within the jurisdiction of the said Court.

21. The expression "ordinarily resident" used in Section 9 of the G&W Act has a connotation that signifies something more than a temporary residence. The said expression must be given its natural and literal meaning. On this aspect, we need not travel beyond the authoritative decision of the Supreme Court in the case of Ruchi Majoo (supra), where one of the questions that had fallen for determination was the legal validity of the judgment of the High Court impugned therein, dismissing a petition filed by the mother for the custody of the minor child on the ground that the courts at Delhi were not vested with the jurisdiction to entertain the same. In the said context, the Supreme Court had first examined the definition of the words, "ordinarily‟ and "resides‟ in Black's Law Dictionary and Websters Dictionary and based on a conspectus of case law on the interpretation of the expression coined by joining two words, in the cases of Annie Basant vs. Narayaniah (reported as AIR 1914 PC 41), Jagir Kaur and Anr. vs. Jaswant Singh(reported as AIR 1963 SC 1521), Kuldip Nayar and Ors. vs. Union of India and Ors. (reported as 2006 (7) SCC 1), Bhagyalakshmi and Anr. vs. K.N. Narayana Rao(reported as AIR 1983 Mad 9), Aparna Banerjee vs. Tapan Banerjee(reported as AIR 1986 P&H 113), Ram Sarup vs. Chimman Lal and Ors. (reported as AIR 1952 All 79), Vimla Devi vs. Maya Devi and Ors. (reported as AIR 1981 Raj. 211) and In Re: Giovanni Marco Muzzu and Ors. (reported as AIR 1983 Bom. 242), had ultimately opined that the question whether one is ordinarily residing at a given place, is dependent on the intention of the parties to make that place ones‟ ordinary place of abode."

13. Thus, from the aforesaid decision rendered by the Delhi High Court, it can be said that the question

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whether one is ordinarily residing at a given place, is dependent on the intention of the parties who make that place for ordinary place of residence.

14. In the case of Rinky, D/o. Arvindbhai (supra), this Court has observed in para 11 to 13 as under:

"11. Now, considering the provisions made in Section 9 of the Act, it is the Court, in which jurisdiction, the child was, ordinarily, resided. Now, in this case, it is an admitted fact that the agreement of dissolution was entered into between the parties at Ahmedabad and in that agreement, the address of the appellant is shown as Surat. It shows that when the agreement was signed at Ahmedabad, the wife was residing at Surat with the child. It appears from the agreement dated 15th December 2017 that, the husband has relinquished his right of custody of the minor child and only has sought for visitation right. It also appears from the record that when the wife went to USA, the husband has taken away the custody of the minor child and wife has moved Florida Court for immediate custody of the child which has not entertained by the Florida Court. Thus, the action of the husband in taking away the custody of the child in USA will not divest the jurisdiction of the Indian Court as per the agreement as, lastly, the child was residing at Surat. As such, considering the factual aspects of this case, the jurisdiction of the Family Court at Surat is not divested and the Family Court at Surat has jurisdiction to entertain the petition filed by the wife under Section 9 read with Section 25 of the Act.

12. On perusal of the impugned order, it appears that the Family Court has not considered the fact that at the time of execution of the agreement, the wife was residing at Surat along with the minor child.

13. It appears from the impugned order that the observation of the Family Court that at the time

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of proceedings, the minor child was residing in USA is not in consonance with the settled principles of law as the action of the husband in snatching away the minor child in USA cannot be a ground to hold that the Surat Court has no jurisdiction, in the facts of the case that there was agreement between the parties that the custody of the minor child was given to the mother, who was residing at Surat. Therefore, the impugned order of the Family Court is not tenable in the eyes of law and is required to be interfered with."

15. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereinabove are seen, it is revealed that it is the specific case of the present respondent in the application filed under Section 25 of the Act that she is residing at Gandhinagar and when she was staying at Gandhinagar with her two daughters, on 30.06.2018, her in-laws got the custody of the minor daughters and thereafter custody was not handed over to her. If para 16 of the application is carefully seen, the present respondent has pointed out about the cause of action for filing the application and in para 20 she has specifically stated about the jurisdiction of the concerned Court at Gandhinagar.

16. Thus from the aforesaid factual background, this Court is of the view that when the custody of the minor daughters was obtained by the in-laws of the respondent, they were with their mother i.e. present respondent at Gandhinagar. Further part of the cause of action has also arisen in the local limits of Gandhinagar Family Court. Without making any enquiry and without leading evidence before the concerned

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Court, at this stage, it cannot be held that the Gandhinagar Family Court has no jurisdiction to try the application filed by the present respondent under Section 25 of the Act.

17. I have also gone through the reasoning recorded by the Family Court, Gandhinagar while dismissing the application filed by the present applicant under Order VII, Rule 11(d) of the Code and in view of the reasoning recorded therein and in view of the observations made hereinabove, this Court is of the view that the present application is required to be dismissed. Accordingly, it is dismissed. Notice discharged. Interim relief stands vacated.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI