Madras High Court
Goutam Menon vs Sucharitha Gautam on 14 November, 1990
Equivalent citations: (1991)212MLJ1
JUDGMENT Lakshmanan, J.
1. This petition is filed by the husband against his wife, the respondent herein, under Sections 3 and 23 of Guardians and Wards Act, 1890 and Order 21, Rules 1 and 2 of Original Side Rules, read with Article 17 of Letters Patent, 1865 to direct the respondent to deliver the minor children to, the custody of the petitioner and for other reliefs. This petition was filed in this Court on 19.7.1990.
2. The respondent has filed a counter stating that this Court may not have jurisdiction to entertain this petition inasmuch as the children whose custody is sought by the petitioner, are permanently residing at Coimbatore outside the Ordinary Original Civil Jurisdiction of this Court.
3. When the matter was taken up for hearing on the earlier occasion the counsel for the respondent raised the very same objection and submitted that this petition filed in this Court is not maintainable. According to the learned Counsel, the wife is permanently stationed at Coimbatore and that she is working in some firm and find it very difficult to take leave from her employer. The children are also studying at Coimbatore for the last six years. Hence on the question of inconvenience of parlies this Court may not have jurisdiction to entertain this petition.
4. Per contra, Mr. Kothandaraman, learned Counsel appearing for the petitioner submitted that this Court alone has jurisdiction and to try the matters like this and in support of his contention, learned Counsel for the petitioner placed before me the following decisions reported in Rajah of Vizianagaram v. Secretary of State 71 M.L.J. 873 : 169 I.C. 189 : I.L.R. 1937 Mad. 383 : A.I.R. 1935 Mad. 51, Tarun Chandra Ghosh In re. A.I.R. 1930 Cat 598, Mahadeo Krishna Rupji In re. A.I.R. 1937 Bom. 98, Lovejoy Patel, In re. A.I.R. 1944 Cal. 433 and Pamela Williams v. Partrick Cyril Martin .
5. In Rajah of Vizianagaram v. Secretary of State 71 M.L.J. 873 : 169 I.C. 189 : I.L.R. 1937 Mad. 383 : A.I.R. 1935 Mad. 51, I he Division Bench of this Court has held as follows:
Under Clause 32, Letters Patent of 1890, the jurisdiction of High Court in regard to infants is plenary and is not subject to limitations as to persons or place. So the High Court can have jurisdiction over ever an infant though not of British birth and though residing outside limits of Presidency Town. But supposing that the jurisdiction of the Supreme Court over infants was confined to British subjects of British descent, the moment direct control was assumed by the Crown, every native of British India became ipso facto a British subject and from that lime onwards nothing could hinder the Supreme Court from exercising jurisdiction over native Indian infants in the mofussil. Clause 17 docs not impose as a condition the residence of the infant for ihe exercise of the jurisdiction thereunder. So a resident of Madras can invoke the jurisdiction of the High Court for the protection of his parental rights and it is immaterial where the children are residing so long as they are within the Presidency.
In Tarun Chandra Ghosh In re. A.I.R. 1930 Cal. 598, learned single Judge of the Calcutta High Court has held as follows:
There is no restriction in the powers granted to either the Supreme Court or the High Court which limits the exercise of guardianship jurisdiction to the town or to European British subjects, and even if any such limitation exists, it does not apply where person who is outside the limits of ordinary jurisdiction or who is not a European British subject desires to avail himself of the jurisdiction of the Court and there is no opposition thereto.
In Mahadeo Krishna Rupji In re. A.I.R. 1937 Bom. 98, the Bombay High Court has held that the High Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor's property is an undivided share in the family property apart from the Guardians and Wards Act. It is further held that the Court has jurisdiction to sanction an alienation by the father or the manager of a joint family where the Court was satisfied that the transaction was for the benefit of the minor. On the general jurisdiction, and apart from the Guardians and Wards Act, the Bombay High Court following the Full Bench decision reported in Manilal Hurgovan In re. 25 Bombay 353, held that the High Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor's property is an undivided share in the family property, and the Court has jurisdiction to sanction an alienation by the father or the manager of a joint family where the Court was satisfied that the transaction was for the benefit of the minor. In Lovejoy Patel, In re. A.I.R. 1944 Cal. 433, learned single Judge of the Calcutta High Court has held as follows:
The jurisdiction of the Calcutta High Court to appoint guardian of the persons and estates of minors is not limited to Minors residing within its ordinary original civil jurisdiction but extends to minors residing outside it but within the Bengal Division of the Presidency provided they are British subjects.
In exercising the jurisdiction under Clause 17 in the matter of appointment of a guardian of the person and estate of minor, the High Court should follow the principles adopted by the Court of Chancery in England. This jurisdiction of the High Court has been expressly preserved by Section 3, Guardians and Wards Act. This does not, however, mean that the High Court ignores the principles embodied in that Act. The provision of that Act in effect adopt the cardinal principles upon which the Court of Chancery in England used to act. Where the Act is alienator the provisions thereof are contrary to or inconsistent with the principles of the Court of Chancery, the High Court in appropriate cases will act on the principles on which the Court of Chancery in England would act in similar circumstances.
In Pamela Williams v. Partrick Cyril Martin , Division Bench of this Court by considering Clause 17 of the Letters Patent held as follows:
The jurisdiction of the Court is all embracing and wide under Clause 17 of the Letters Patent and it is not controlled by the restrictions imposed on the, Court exercising jurisdiction under the Guardian and Wards Act.
The arguments advanced by the learned Counsel for the respondent that hardship would be caused to his clients if they are asked to appear before this Court and to contest the proceedings, cannot have any basis when the question of jurisdiction is involved in this case. As stated above Clause 17 of the Letters Patent confers jurisdiction on this Court. When the question of jurisdiction is involved the question of convenience as alleged by the respondent does not arise all for any consideration. Hence I reject the arguments advanced by the learned Counsel for the respondent and accept the arguments adduced by the learned Counsel for the petitioner with regard to the jurisdiction. In my opinion all the decisions referred to above are directly applicable to the facts and circumstances of this case. Respectfully following the above decisions I hold that this Court has jurisdiction to try the O.P. filed by the husband in this Court, for the custody of the minor children.