Rajasthan High Court - Jodhpur

Rinku vs Gulabchand on 7 November, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:37928]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15984/2022

Rinku D/o Thanaramji W/o Gulabchand, Aged About 35 Years, By Caste Suthar, Resident Of Dujana, Tehsil Sumerpur, District Pali, Presently Residing At Room No. 4-A, Raghunath Ka Shankar Road, Nadi Ke Us Par, Patil Chal, Dahisar, Mumbai (Maharashtra).

----Petitioner Versus Gulabchand S/o Sheshmalji, By Caste Suthar, Resident Of Pratap Bazar, Rani Station, Tehsil Rani, District Pali (Raj.).

                                                      ----Respondent



For Petitioner(s)           :     Mr. Param Veer Singh
For Respondent(s)           :     Mr. Pushkar Taimni

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 18/10/2023 Pronounced on 07/11/2023

1. This writ petition under Articles 226& 277 of the Constitution

of India has been preferred claiming the following reliefs.:

"Hence it is, therefore respectfully prayed that the writ petition filed by the petitioner be allowed by passing an appropriate writ, order or direction:-

a). That the order passed by the learned trial Court dated 28/05/2022 Annex. 4 may kindly be quashed and set aside.

b). That the application filed by the petitioner non-applicant under Order 7 Rule 10 read with Sec 151 CPC and Sec 9 of the Act of 1890 Annex. 2, be allowed as prayed therein.

c). Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner.

d). That the petitioner may be awarded the cost of the litigation."

[2023:RJ-JD:37928] (2 of 9) [CW-15984/2022]

2. As per the pleaded facts, the respondent (father) filed an

application (registered as case no.59/2016) under the provisions

of the Guardian and Wards Act, 1890 (hereinafter referred to as

'Act of 1890') before the learned Additional District Judge, Bali,

District Pali for claim of guardianship of his daughter and son,

namely, Harshita and Yakshat respectively, along with an

application for interim custody of children, against the petitioner.

Thereafter, an application was filed under Order 7 Rule 10 read

with Section 151 CPC along with Section 9 of the Act of 1890 by

the petitioner (mother) wherein it was stated that since the

children were living in Mumbai alongwith petitioner's mother, thus

the learned Court did not have jurisdiction over the matter.

2.1. Subsequently, a reply was submitted by the respondent

(father) and learned Court below vide the impugned order dated

28.05.2022, the application filed by the petitioner (mother) was

rejected. Thus, aggrieved by the impugned order dated

28.05.2022 the present petition has been preferred claiming the

afore-quoted reliefs.

3. Learned counsel for the petitioner (mother) submitted that

the children had been living in Mumbai alongwith her mother since

2013, while the application was filed by the respondent (father) in

the year 2016, thus ordinarily, the residence of the minor children

was with the mother since many years; hence, as per the

provisions of Section 9 of the Act of 1890, the application was to

be filed by the respondent (father) before the competent Court at

in Mumbai, but the same was filed before the learned Court below,

which did not have jurisdiction to hear the above- said application,

[2023:RJ-JD:37928] (3 of 9) [CW-15984/2022]

and thus, the same should have been returned to be filed before

Court of competent jurisdiction.

3.1. It was further submitted that the expression "where the

minor ordinarily resides" needs to be interpreted to mean the

residence of the mother of the children of tender age; in the

present case, the age being 3 & 6 years respectively, therefore

such place would mean the residence of the mother, and thus, the

application filed by the respondent (father) lacked jurisdiction; in

furtherance, it was submitted that the respondent (father) had

made improvements in his reply to the application filed by the

petitioner (mother) by stating contrary to the application for the

custody in question that the petitioner (mother) resided in Rani.

3.2. In order to fortify, the aforesaid submissions, reliance was

placed on the following judgments:

(a) Simple Sharma v. Ishawar Prakash (S.B. Civil Transfer Appl. No.98/2020 decided on 08.04.2021) by a Coordinate Bench of this Hon'ble Court.

(b) Smt. Sarabjit v. Sh. Piara Lal & Anr., (Civil Misc. No. 3233- CII of 2005 and another connected matter decided on 01.04.2005), by the Hon'ble High Court of Punjab & Haryana.

(d) Dandu Sridhar v. Pothamashetty Padma Priya (CMA No. 3985/2003 decided on 29.12.2003) by the Hon'ble High Court of Andhra Pradesh.

(e) Madhav Singh & Anr. v. Smt. Basanti (S.B. Civil Revision No. 134/2009 decided on 06.11.2013) by a Coordinate Bench of this Hon'ble Court.

4. On the other hand learned counsel for the respondent

(father), while opposing the aforesaid submissions made on behalf

[2023:RJ-JD:37928] (4 of 9) [CW-15984/2022]

of the petitioner (mother), submitted that the petitioner, without

any reason, left the respondent and went to her parents in the

year 2012 and also took away the daughter from Rani in the year

2013, thus as the cause of action arose in Rani, such application

had been correctly filed in Rani; in furtherance, the petitioner

(mother) along with the children was living in Rani and not in

Mumbai.

4.1. It was further submitted that since the petitioner (mother)

had taken the children from the house which is situated in Rani

(where petitioner and respondent resided after solemnization of

their marriage) to Mumbai, thus the residing house would be

taken as the house situated at Rani.

4.2. Learned counsel placed reliance on the order passed by a

Coordinate Bench of this Hon'ble Court in the case of Madhav

Singh & Anr. v. Smt. Basanti (S.B. Civil Revision No.

134/2009, decided on 06.11.2013).

5. Heard the learned counsel for the parties as well as perused

the record of the case along with the judgments cited at the Bar.

6. This Court observes that the respondent (father) filed the

aforesaid application claiming guardianship of his daughter and

son along with an application for interim custody under the above-

said provisions, whereafter the petitioner filed an application

under Order 7 Rule 10 CPC along with application under Section 9

of the Act 1890 claiming that the jurisdiction does not lie with the

Court at Rani, instead it will lie with the Court at Mumbai; however

the application so filed by the petitioner (mother) was rejected

[2023:RJ-JD:37928] (5 of 9) [CW-15984/2022]

vide the impugned order. Further, the application for custody is

still pending before the learned Court.

7. This Court further observes that as per the decision of the

learned Court below, the petitioner (mother) and the respondent

(father) had married and settled in Rani, and thereafter had a

daughter and son who also continued to live at Rani, however

later on, the petitioner (mother) took the children to Mumbai, thus

changing the ordinary residence of the minors. For the sake of

clarity, relevant portion of Section 9 of the Act of 1890 is

reproduced as hereunder:

"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 ordinarily resides."

8. This Court is conscious of the order passed in the case of

Madhav Singh (supra), relevant portion whereof is reproduced

as hereunder:

"The temporary shift of residence immediately prior to filing of application under Section 25 of the Act cannot be termed as ordinary residence of the person of the child. The term 'ordinarily resides' connotes that but for intervening circumstance whereby the child might be staying at some other place, the place where he is ordinarily expected to be residing or was residing is the place of his ordinary residence. The said provision dealing with territorial jurisdiction has to be distinguished with the provisions in other enactments which give jurisdiction to the Court with reference to the place of last residence and both cannot be equated for the purpose of territorial jurisdiction.

In the present case, the admitted position is that the child was ordinarily residing at Udaipur and was moved to Kankroli

[2023:RJ-JD:37928] (6 of 9) [CW-15984/2022]

and was staying at Kankroli when the petition was filed, which residence at Kankroli cannot be termed as his ordinary residence.

In the case of Wazid Ali (supra), which was followed by this Court in Hariom (supra) it was held that it is not the place where the minor resides at the time of filing application seeking custody which determines the territorial jurisdiction of the Court, but it is factually as well as constructive custody prior to arising of cause of action which decide the jurisdiction of the Court under Section 9 of the Act and merely because on death of mother of the child, the child was removed from the custody of father and was taken away by maternal grand father living away at different place, the same would not take away the jurisdiction of the Court where prior to death of the mother of the child alongwith his mother used to live. The judgment of this Court in the case of Hariom (supra) applies on all fours to the present case."

9. This Court is further conscious of the judgment rendered in

the case of the Hariom v. Sunil (S.B. Civil Revision Petition

No. 243 of 2010, decided on 25.05.2011, by a Coordinate Bench

of this Hon'ble Court); relevant portion whereof is reproduced as

hereunder:

"8. With respect to the judgments relied upon by the learned counsel for the petitioner, they are of little help to him inasmuch as Gujarat High Court has rightly held that it is the ordinary place of residence prior to removal of custody of the father, that would decide the place of ordinary residence of minor rather than the present place of residence, which might be temporary or under the compelling circumstances like remarriage or pendency of criminal proceedings pending against the applicant like in the present case.

9. It is not the place where the minor is presently residing when application seeking custody is filed under Section 9 of

[2023:RJ-JD:37928] (7 of 9) [CW-15984/2022]

the Act, which would be determinative of deciding the jurisdiction of the Court under Section 9 of the said Act, but it is factually as well as constructive custody prior to arising of cause of action for claiming such custody again, which could decide the jurisdiction of the Court under Section 9 of the Act. Merely because in the circumstances that upon death of mother of the child, the child was removed from the custody of the father who is the natural guardian of the minor and was taken away by the maternal grandfather and was therefore, living away at different place at Gurgaon, that would not take away the jurisdiction of the Court at Nohar, where the father- natural guardian ordinarily resides and prior to death of the mother of the child, the child with his mother also used to live."

10. This Court is further conscious of the order passed in the

case of Wazid Ali v. Smt. Rubina Bano & Ors., (C.R.P. No. 28

of 2007 decided on 22.11.2007 by a Coordinate Bench of this

Court at Jaipur Bench); relevant portion whereof is reproduced as

hereunder:

"The ordinary residence of the minor cannot be said to be at Sikar as the child has been shifted as per compulsion and the circumstances created by the mother of the child. The child would have been handed over to the custody of the father, though perhaps, the mother might have thought in her wisdom that the child with her mother may be more convenient and looked after well unmindful of it that the father is the natural guardian of the child. The plea of the learned counsel for the respondents that the ordinary residence is at Bombay is not made out as per their own pleadings and the record. Smt. Hussain Bano in whose custody the child is, is resident of Sikar. Since the child has been put under custody of the maternal grand-mother because of the compelling circumstances, therefore, it also cannot be said to be the ordinary residence of the minor. Therefore, under such circumstances, I feel that the District Court, Jhunjhunu from

[2023:RJ-JD:37928] (8 of 9) [CW-15984/2022]

where the child was taken by the mother from the custody of the natural guardian has the jurisdiction to entertain the application as the Jhunjhunu is the ordinary residence of the child."

11. This Court also observes that the case of Simple Sharma

(supra), as cited at Bar on behalf the petitioner, is clearly

distinguishable from the present set of facts, as in the said case,

though the mother had taken the children and shifted them to

Sriganganagar, however, the proceedings under Section 125

Cr.P.C. and under the provisions of Domestic Violence Act were

pending in Sriganganagar, thus, the Hon'ble Court was of the

opinion that both the proceedings between the parties therein

should be conducted at one place, which is not the position in the

present case at hand.

12. This Court, in light of the aforementioned precedent laws, is

of the opinion that in the factual matrix of the present case, the