Manipur High Court
Smt. Telem Robita Devi vs Shri Ramesh Kumar Gupta on 30 October, 2023
SHAMURAILATPAM SUSHIL Digitally signed by SHAMURAILATPAM SUSHIL
SHARMA
SHARMA Date: 2023.10.30 16:50:20 +05'30' Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
RP (FAM. CT) No. 2 of 2016
Ref :- Judl. Misc. Case No. 64 of 2016
Mat. (G&W) Case No. 24 of 2015
Smt. Telem Robita Devi, aged about 35 years, daughter of
Telem Dhananjoy Singh of Kongba Kshetri Leikai, P.S.
Irilbung, Imphal East District, Manipur.
... Petitioner
-VERSUS-
Shri Ramesh Kumar Gupta, aged about 48 years, son of
late Dwarika Prasad of Dona Presidency, D-1, Six Mile,
V.I.P. Road, Chachal, Guwahati - 821 022, Assam.
... Respondent
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Appellant :: Mr. Kh. Santa, Adv.
For the Respondent :: Mr. P. Tomcha, Adv.
Date of Hearing and
reserving Judgment & Order :: 12.10.2023
Date of Judgment & Order :: 30.10.2023
JUDGMENT AND ORDER
(CAV)
Heard Mr. Kh. Santa, learned counsel for the
petitioner and Mr. P. Tomcha, the learned counsel for the
respondent.
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |2
2. This revision is filed by the petitioner under Section
19(1) of the Family Courts Act, 1984 against the order dated
6.8.2016 passed by the learned Judge, Family Court, Manipur in
Judl. Misc. Case No.64 of 2016 in Mat. (G&W) Case No.24 of 2015.
3. The husband has filed Judl. Misc. Case No.64 of 2016
challenging the territorial jurisdiction of the Family Court, Manipur
to entertain Mat. (G&W) Case No.24 of 2015 and sought direction
to return Mat. (G&W) Case No.24 of 2015 to file a suit before the
Court at Kamrup District having jurisdiction where the minor
children ordinarily resides.
4. Mat. (G&W) Case No.24 of 2015 has been filed by the
wife under Section 25 of the Guardians & Wards Act, 1890 praying
for declaration to declare that the wife as guardian for the custody
of three minor children.
5. Mr. Kh. Santa, the learned counsel for the petitioner
submitted that three minor children were brought forcibly on
27.2.2012 by the respondent from the custody of the petitioner from
her residential place Kongba Kshetri Leikai, Imphal East, without
her consent and against the wish of the minor children and then left
Imphal separating the mother-child relationship inhumane. The
learned counsel would submit that after residing for some months
at Dimapur, Nagaland and after the incident of rescuing the minor
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
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children by the petitioner from the respondent, the place of
residence of the respondent has been shifted and settled at
Guwahati keeping three children at the hostel of their respective
school at Guwahati.
6. The learned counsel further submitted that the
marriage between the petitioner and the respondent was dissolved
on 21.7.2015 by the Court of law. However, the incident of taking
over the minor children from the custody of the petitioner was made
much prior to the passing of the order dated 21.7.2015.
7. The learned counsel for the petitioner urged that the
learned Judge of the Family Court erred in observing that the minor
children are permanently settled at Guwahati at the time of filing the
petition by the petitioner for appointment as guardian of the person.
The learned Judge also erred in observing that when the petition
was filed by the petitioner, the minors had already been living at
Guwahati and the Court at Kamrup District would have jurisdiction
to entertain the petition as laid down under Section 9(1) of the
Guardians & Wards Act, 1984. The learned Judge also erred in
allowing the petition filed by the respondent and returned the
petition to the petitioner thereby directing her to present the same
before the Court at Kamrup District.
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |4
8. According to the learned counsel, the learned Judge
ought to have allowed the petition filed by the respondent and the
Family Court, Manipur is having territorial jurisdiction over the claim
made by the petitioner in Mat. (G&W) Case No.24 of 2015. Thus,
a prayer has been made to set aside the order dated 6.8.2016
passed by the learned Judge of the Family Court in Judl. Misc. Case
No.64 of 2016. In support, the learned counsel for the petitioner
placed reliance upon the following decisions:
(i) K.C.Sashidhar v. Roopa, AIR 1993
Karnataka 120.
(ii) Order dated 9.8.2017 passed in MAT App.
No.1 of 2017 on the file of the High Court of
Manipur.
9. Per contra, Mr. P. Tomcha, the learned counsel for
the respondent submitted that on the allegation of threats to the life
of the respondent while staying in Manipur, he has been settled at
Guwahati and he is not in a position to come to Manipur and appear
before the Family Court, Manipur. As such, his counsel, filed Judl.
Misc. Case No.64 of 2016 by putting his signature on behalf of the
respondent without disclosing the details of the factum of the
alleged charges and particulars of persons, if any threats received
by him. Taking into consideration that since the minor children are
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |5
living with the respondent within Kamrup District and are studying
within the territorial jurisdiction of Kamrup District and the
respondent is taking care of the minors, the learned Judge rightly
came to the conclusion that the minors had already been living at
Guwahati and the Family Court, Manipur has no jurisdiction to
entertain the case or declaration of guardian of the minors and the
learned Judge has rightly ordered return of the petition to the
petitioner for presentation before the Court at Kamrup District.
Since the order of the learned Judge, Family Court is well
considered one, there is no need to interfere with the same and
thus, a prayer is made to dismiss the present petition.
10. This Court considered the rival submissions and also
perused the materials available on record.
11. The plea of the respondent herein is that due to certain
facts in the life of the respondent while living in Manipur, he along
with his minor children were compelled to leave Manipur and settle
at Guwahati and for the past 10 years, they are residing at
Guwahati. According to the respondent, the ordinary place of
residence of the respondent and the minors is at Dona Presidency
D-1, six Mile V.I.P. Road Chachal, Guwahati, Assam. The said fact
has not been disputed by the petitioner.
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
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12. Judl. Misc. Case No.64 of 2016 has been filed by the
learned conducting counsel for the respondent based on
authorisation given by the respondent and accordingly sworn before
the Family Court stating that under Section 9(1) of the Guardian and
Wards Act, 1890, if the application is with respect of the
guardianship of the person of the minor, it shall be made to the
District Court having jurisdiction in the place where the minor
ordinarily resides.
13. Opposing Judl. Misc. Case No.64 of 2016, the
petitioner contended that no document in support of authorisation
of the learned counsel to file the petition has been produced and,
as such, the conducting counsel has no authority and power to file
Judl. Misc. Case No.64 of 2016. The said aspect has been duly
considered by the learned Judge and this Court does not wish to
interfere with the same.
14. According to the petitioner, while living together at
Imphal along with their three minor children, the respondent
betrayed the petitioner and left Manipur by taking the three minor
children without the consent and knowledge of the petitioner. After
a search, the petitioner came to know that the respondent
temporarily shifted his place of residence at Guwahati and her minor
children are now studying at Guwahati.
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |7
15. Drawing this Court's attention to the provisions of
Section 6 and 7 of the Guardian and Wards Act, 1890, the learned
counsel for the petitioner argued that the petition, namely Mat.
(G&W) Case No.24 of 2015 filed by the petitioner is well
maintainable before the Family Court and the learned Judge,
Family Court, ought not to have allowed the prayer of the
respondent in Judl. Misc. Case No.64 of 2016.
16. As rightly held by the learned Judge, Family Court, the
respondent never raised any objection regarding the jurisdiction of
Family Court to entertain the proceeding in relation to guardianship
of the person or custody of the minor. In view of the above, this
Court is of the view that there is no need to further elaborate upon
the issue qua jurisdiction of the Family Court.
17. The marriage between the petitioner and the
respondent was dissolved by a decree of divorce on 21.7.2015.
The forcible taking of the minor children alleged by the petitioner is
on 27.2.2012. If really, the respondent without the consent of the
petitioner took the minor children with him and is residing
somewhere away from Manipur, the petitioner would have raised
an objection about the forcible custody of the minor children by the
respondent. Admittedly, in the case on hand, the petitioner has not
raised any such objection at the relevant point of time. In fact, while
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |8
delivering the order in Mat. (Divorce) Suit No.59 of 2012, the
learned Judge of Family Court, extracted the terms and conditions
arrived at between the parties and the same reads thus:
"1. The petitioner and the respondent mutually
agreed to dissolve their marriage which was
performed on 3.11.1999 by a decree of divorce.
2. The petitioner Ramesh Kumar Gupta agreed
to pay a sum of Rs.5,00,000/- (Rupees five lacs)
only to his wife, the respondent, Smt. Telem
Robita Devi as her permanent alimony in
respect of the dissolution of their marriage and
the respondent also had no objection to receive
the said amount of alimony at the time of
dissolution of their marriage.
3. The respondent agreed that she will not claim
any amount of her maintenance allowance and
any other movable/immovable
property/properties from the petitioner after the
dissolution of the marriage."
18. Admittedly, the terms and conditions of the mutual
agreement are silent about the custody of the minor children, which
implied that the minor children are in the custody of the respondent
father at time of arriving at settlement. Therefore, it cannot be
contended that against the wishes of the minors, the respondent
took them forcibly from the custody of the petitioner mother and is
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
Page |9
living at Guwahati. Further, the said aspect is not a matter of
discussion in the present petition. Since the petitioner has raised
the plea that the respondent has taken the minors forcibly from her
custody, this Court discussed the same in this order. This will not
in any way affect the merits of Mat. (G&W) Case No.24 of 2015.
19. The point that arises for consideration in the present
petition is whether the Family Court, Manipur has jurisdiction to
entertain Mat. (G&W) Case No.24 of 2015 or to return it to the
petitioner for presentation before the Court at Kamrup District where
the minor children ordinarily resides.
20. There is no dispute qua the power of the Family Court
to entertain the case relating to declaration of the guardianship of
the minor.
21. According to the petitioner, the Family Court, Manipur
has jurisdiction to try Mat. (G&W) Case No.24 of 2015 filed by the
petitioner. According to the petitioner, the Court at the place of
residence of mother would have jurisdiction to try suit. In support,
the learned counsel placed reliance upon the decision of the
Karnataka High Court in the case of K.C.Sashidhar, supra, wherein
the Karnataka High Court held thus:
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
P a g e | 10
"5. In the instant case, since the chid is of tender
age, the legal guardian would be the mother and
the place of her residence, on the date of the
presentation of the petition, is the place where it
is to be construed as the minor ordinarily
resided" and as such the finding arrived at by the
Court-below does not suffer from any legal
infirmities. Hence, the circumstances do not
warrant interference of this Court in exercise of
its power under S.115 of the C.P.C.
Accordingly, this C.R.P. is dismissed. No costs."
22. On a thorough reading of the judgment of the
Karnataka High Court, this Court is of the view that the factual
aspects involved in the said case are entirely different from that of
the instant case. Therefore, decision of the Karnataka High Court
relied upon by the petitioner is not helpful to the case of the
petitioner as on the date of presentation of Mat. (G&W) Case No.24
of 2015, the minors are residing away from the petitioner. In fact,
in paragraph 5 of her petition, namely Mat. (G&W) Case No.24 of
2015, the petitioner averred that "the respondent instead of bringing
her three children to her custody, left Imphal on the same day and
later on learnt that the respondent was staying at Dimapur along
with her three children". Subsequently, in the objection filed in Judl.
Misc. Case No.64 of 2016, the petitioner has stated that "presently,
the respondent has been residing at his present temporary place of
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
P a g e | 11
residence at Guwahati". The aforesaid averments of the petitioner
would clearly indicate that the minor children are residing with their
father at Guwahati. In view of the above, the Court at Kamrup
District would have jurisdiction to entertain the petition of the
petitioner".
23. The learned counsel for the petitioner, by placing
reliance upon the order dated 9.8.2017 of this Court passed in MAT
App. No.1 of 2017, submitted that without conducting any enquiry,
the learned Judge, Family Court, Manipur allowed the prayer of the
respondent. As stated supra, since the petitioner herself admitted
that now the minors are residing along with the respondent at
Guwahati, the order in MAT App. No.1 of 2017, dated 9.8.2017 is
not helpful to the case of the petitioner.
24. It is admitted by the parties that, now the minors are
aged 22 years and 17 years respectively. Therefore, this Court is
of the considered view that the learned Judge, Family Court,
Manipur, was right in allowing the prayer of the respondent in Judl.
Misc. Case No.64 of 2016 and, as such, rightly ordered to return the
petition of the petitioner, namely Mat. (G&W) Case No.24 of 2015,
to present the same before the Court at Kamrup District having
appropriate jurisdiction. The said direction of the learned Judge,
Family Court cannot be find faulted. No valid grounds have been
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
P a g e | 12
made out to interfere with the impugned order of the learned Judge,
Family Court, Manipur.
25. In the result,
(i) RP (FAM.C.T.) No.2 of 2016 is dismissed.
(ii) No costs.
JUDGE
FR/NFR
Sushil
RP (FAM. CT) No. 2 of 2016 (Ref :- Judl. Misc. Case No. 64 of 2016,Mat. (G&W) Case No. 24 of 2015
