Vijay Sharma vs Sheetal Sharma And Anr on 14 November, 2024

[Cites 48, Cited by 0]

Himachal Pradesh High Court

Vijay Sharma vs Sheetal Sharma And Anr on 14 November, 2024

Bench: Vivek Singh Thakur

Neutral Citation No. ( 2024:HHC:11335 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (FC) No. 28 of 2024 Reserved on: 05.11.2024 Date of Decision: 14.11.2024 Vijay Sharma ...Appellant.

                                           Versus
    Sheetal Sharma and Anr.                                                       ...Respondents

    Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Desh Raj Thakur, Advocate. For the Respondents : Mr. M.A. Safee, Advocate.

Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 30.11.2023 passed by learned Principal Judge, Family Court, Shimla District Shimla (learned Trial Court) vide which the petition seeking the custody of the minor filed by the appellant (petitioner before learned Trial Court) was ordered to be dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the petitioner filed a petition, as amended, before the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Neutral Citation No. ( 2024:HHC:11335 ) learned Trial Court seeking the custody of minor Lavish Sharma. It was asserted that the marriage between the petitioner and respondent No.1 was solemnized as per Hindu Rites and Customs at Sisra on 14.09.2015. Lavish Sharma was born to the parties on 02.03.2017. The differences arose between the parties and respondent No.1 left her matrimonial home in August 2021 with the minor. The petitioner disclosed this incident to the parents of respondent No.1. He also called respondent No.1, who disclosed that she was at Ambala. Petitioner brought her and the minor to his home at Sirsa. Respondent No.2 sent a message to the petitioner on the next day threatening him with dire consequences. The petitioner made inquiries from respondent No.1. He subsequently found that respondents No.1 and 2 were in a relationship before the marriage. Respondent No.2 instigated respondent No.1 to leave her matrimonial home. Respondent No.1 left her matrimonial home with the child. Respondent No.1 is dependent upon respondent No.2 and she is unable to take care of the minor. The petitioner would provide the best education to the minor by enrolling him in a reputed school; hence, the petition.

3. The petition was opposed by filing a reply by respondents Nos.1 and 2 admitting the relationship between the 3 Neutral Citation No. ( 2024:HHC:11335 ) petitioner and respondent No.1. It was asserted that the petitioner and his parents started torturing respondent No.1 for dowry even though sufficient dowry was provided to them. The petitioner and his parents never gave anything to respondent No.1 and her child.

They abused respondent No.1 and compelled her to do household chores. They even doubted the paternity of the minor and asked for his DNA test to determine his paternity. Respondent No.1 herself disclosed the relationship between her and respondent No.2 to the petitioner. She also stated that she was not in contact with respondent No.2 after her marriage. The petitioner did not permit the minor to attend his essential class test. The welfare of the minor lies with his mother. Respondent No.1 is a postgraduate in computer sciences and is not dependent upon any person. She has worked as a teacher in several schools and she can provide a comfortable life to the minor. Respondent No.2 has his boutique at Mumbai. Therefore, it was prayed that the present petition be dismissed.

4. A rejoinder denying the contents of the replies and affirming those of the petition was also filed.

Neutral Citation No. ( 2024:HHC:11335 )

5. Initially, the petition was filed against three respondents but the name of respondent No.3 was ordered to be deleted vide order dated 30.06.2023.

6. Learned Trial Court framed the following issues on 22.07.2023:

"1. Whether the petitioner is entitled for custody of the minor child and he deserves to be appointed as Guardian of minor child Lavish Sharma, as alleged? OPP

2. Relief."

7. The parties were called upon to produce the evidence and the petitioner examined himself (PW1), Kushal Sharma (PW2) and Ved Prakash (PW3). Respondent No.1 (Sheetal Sharma) examined herself as (RW1).

8. Learned Trial Court held that the father is a natural guardian of a Hindu minor, however, when he neglects the welfare of the minor, the Court can hand over the custody to the mother.

The mother stated in her cross-examination that she is residing with respondent No.2 but has not changed her religion. She also stated that she was M.Sc. (Computer Science) and capable of taking care of the minor. The minor was aged 6 years and has been residing with his mother since his birth. He was emotionally 5 Neutral Citation No. ( 2024:HHC:11335 ) attached to his mother and the mother was the best person to take care of the minor; hence, the petition was dismissed.

9. Being aggrieved from the judgment passed by the learned Trial Court, the petitioner has filed the present appeal asserting that the learned Trial Court failed to appreciate the material on record. The mother did not have any independent income and the learned Trial Court erred in relying upon her testimony that she was in a position to take care of the minor.

Respondent No.1 had not completed her M.Sc (Computer Science) and she made a false statement before the Court. The mother had taken the minor with her in the mid-session and the minor lost one precious academic year. The father of respondent No.1 also supported the version of the petitioner and falsified the version of respondent No.1 that she was being harassed for dowry. The respondent No.1 failed to take care of the minor. The minor has been deprived of the love, affection and care of his father and grandparents. Respondent No.1 is residing with respondent No.2 without marriage. The religion of the minor and respondent No.2 is different and the minor cannot be allowed to be brought up in these circumstances; hence, it was prayed that the present appeal be 6 Neutral Citation No. ( 2024:HHC:11335 ) allowed and the judgment passed by the learned Trial Court be set aside.

10. We have heard Mr. Desh Raj Thakur, learned counsel for the petitioner and Mr. M.A. Safee, learned counsel for the respondents.

11. Mr. Desh Raj Thakur, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing the petition filed by the petitioner. The welfare of the minor is the paramount consideration while deciding his custody. Learned Trial Court failed to appreciate that the welfare of the minor is with the father and not with the mother who is unable to maintain him properly. Respondent No.1 had made false allegations regarding her harassment. She is residing with respondent No.2 without marrying him. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. He relied upon the judgments of Hon'ble Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413: 2008 SCC OnLine SC 1216, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1: 2008 SCC OnLine SC 1722, Madan Kansagra v. Perry Kansagra, (2021) 12 SCC 289 : (2023) 2 SCC (Civ) 512: 2020 SCC 7 Neutral Citation No. ( 2024:HHC:11335 ) OnLine SC 887 and Manipur High Court in Jaswant Kaur versus Chanan Singh, AIR 1962 Manipur 60 in support of his submission.

12. Mr. M.A. Safee, learned counsel for the respondents submitted that the welfare of the minor is the paramount consideration while deciding his custody. The learned Trial Court had rightly held that the welfare of the minor is with the mother and not with the father. He relied upon the judgments of Hon'ble Supreme Court in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67: (2020) 2 SCC (Civ) 39: 2020 SCC OnLine SC 50. He also submitted that the Court at Shimla did not have jurisdiction as the minor was residing at Sirsa before he was taken by her mother. He also relied upon the judgments of Kamlesh versus Ram Paul, ILR 1973 P&H (1), Sabahat Sanna versus Dr. Shabir Ahmed in MA No. 29 of 2024 decided on 24.09.2024 (J&K) and Dheeraj versus Chetna Goswami, 2024:

AHC:87786-DB in support of his submission.

13. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

14. Before adverting to the merits of the case, it is necessary to dispose of an application (CMP No. 13516 of 2024) filed by the applicant/appellant under Order 41 Rule 27 of CPC for the 8 Neutral Citation No. ( 2024:HHC:11335 ) production of additional documents. It has been asserted that the applicant came across a result-cum-detailed marks card of respondent No.1 regarding her M.Sc (Computer Science), which shows that respondent No.1 has not passed the second-year examination. Learned Trial Court had relied upon the fact that respondent No.1 is a postgraduate in Computer Sciences. The evidence is necessary to falsify this plea. The receipt of the fee paid by the petitioner and his income tax return are also essential. These could not be produced despite the due diligence; hence, the application.

15. No reply was filed to the application.

16. It was laid down by the Hon'ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247: (2022) 3 SCC (Civ) 699: 2022 SCC OnLine SC 292 that the Appellate Court should not generally travel beyond the record of the Trial Court but an exception has been created under Order 41 Rule 27 of CPC. It was observed at page 249: -

"7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule 9 Neutral Citation No. ( 2024:HHC:11335 ) are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."

17. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where the documents were not filed before the learned Courts below and no application was filed for leading additional evidence, the documents cannot be taken on record. It was observed at page 81:

"13. At this stage, it would be pertinent to point out that the appellant-defendants, during the course of this appeal, have filed a number of applications to place on record certain 10 Neutral Citation No. ( 2024:HHC:11335 ) documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order 41 Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration."

18. It was held in Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the additional evidence can be led when the Trial Court had refused to admit the evidence, the evidence was not available despite the exercise of due diligence and the evidence is required by the Court to effectively adjudicate the dispute pending before it. It was observed at page 96: -

"29. Under Order 41 Rule 27 CPC, the production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:

(I) where the trial court had refused to admit the evidence though it ought to have been admitted;

(II) the evidence was not available to the party despite the exercise of due diligence; and (III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

Neutral Citation No. ( 2024:HHC:11335 ) An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents."

19. It was laid down by the Hon'ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 that additional evidence can be taken if the conditions laid down under Order 41 Rule 27 are satisfied. It was observed: -

7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

20. A similar view was taken in North Eastern Railway Admn.

vs. Bhagwan Das, (2008) 8 SCC 511, wherein it was observed: -

Neutral Citation No. ( 2024:HHC:11335 ) "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are:

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or

(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)].

14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it "requires" to enable it to pronounce judgment "or for any other substantial cause". The scope of the Rule, in particular of clause (b), was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143]. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow the litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up 13 Neutral Citation No. ( 2024:HHC:11335 ) omissions in the court of appeal, it was observed as follows :

(AIR p. 148) "... Under clause (1)(b) it is only where the appellate court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment or for any other substantial cause, but in either case, it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent'."

15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526: (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment"

but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits."

21. The applicant/appellant is seeking to produce a copy of the result-cum-detailed marks card to show that respondent No.1 had not passed the examination. This document will not assist the 14 Neutral Citation No. ( 2024:HHC:11335 ) Court in determining the controversy between the parties since even if a person has failed in a particular year, it cannot lead to an inference that he/she had not passed the examination thereafter. In the absence of the result of the final examination, it is difficult to rely upon the result of the intermediate class to conclude that a person had not qualified for the course undertaken by him/her.

Further, the document is sought to be produced to displace the finding recorded by the learned Trial Court that respondent No.1 is a postgraduate in Computer Sciences and capable of taking care of the minor. It was laid down by the Hon'ble Supreme Court in N. Kamalam v. Ayyasamy, (2001) 7 SCC 503 = 2001 SCC OnLine SC 905 that the additional evidence cannot be led to fill in the lacuna left before the learned Trial Court. It was observed at page 514:

"19. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal

-- it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008: 67 Bom LR 782] has been candid enough to record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed: (AIR p. 1012) "This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without 15 Neutral Citation No. ( 2024:HHC:11335 ) such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand, what it says is that certain documentary evidence on record supports 'in a large measure' the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that, we must point out that the power under clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision."

Further in Pramod Kumari Bhatia v. Om Prakash Bhatia [(1980) 1 SCC 412: AIR 1980 SC 446] this Court also in more or less an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, the question of interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage would not arise. The time lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an 16 Neutral Citation No. ( 2024:HHC:11335 ) illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it to be a stage-managed affair in order to somehow defeat the claim of the respondents -- and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court cannot be found fault with for rejecting the prayer of the appellants for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs, being the appellants herein.

22. In the present case also the document is sought to be produced to displace the finding recorded by the learned Trial Court and the same cannot be taken on record as per the binding precedent of the Hon'ble Supreme Court.

23. The other documents, namely the receipt and the income tax return were with the applicant/appellant and no reason has been assigned as to why the documents could not be produced before the learned Trial Court. Merely mentioning that the documents could not be produced despite the exercise of due diligence is not sufficient and it was to be mentioned what due diligence was exercised to produce the documents sought to be produced before this Court. Therefore, these documents do not satisfy the requirement of Order 41 Rule 27 of CPC and cannot be 17 Neutral Citation No. ( 2024:HHC:11335 ) taken on record. Consequently, the present application fails and the same is dismissed.

24. It was submitted that the Courts at Shimla did not have the territorial jurisdiction and learned Trial Court erred in entertaining the suit. This submission is not acceptable. No plea was taken before the learned Trial Court that it had no jurisdiction.

Section 21 of the CPC provides that no objection to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases before the settlement of the issuance and unless there is a consequent failure of justice. It was laid down by the Hon'ble Supreme Court in Om Prakash Agarwal v.

Vishan Dayal Rajpoot, (2019) 14 SCC 526: (2020) 1 SCC (Civ) 731: 2018 SCC OnLine SC 1942 that the objection to the jurisdiction has to be taken at the first instance and a decree passed by the Court cannot be reversed on technical grounds. It was observed at page 554:

"Issue (iii)

56. It is the submission of the learned counsel for the appellant that even if the Additional District Judge was not competent to decide the small causes suit on 22-10-2016, the judgment of the Additional District Judge was not liable to be interfered with by the Revisional Court in view of Section 21 of the Code of Civil Procedure. Section 21 of the Code of Civil Procedure relates to objection to jurisdiction. Section 21 of the Code of Civil Procedure is as follows:

Neutral Citation No. ( 2024:HHC:11335 ) "21. Objections to jurisdiction. --(1) No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any appellate or Revisional Court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice."

57. The policy underlying Section 21 of the Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment rendered, it should not be liable to be reversed purely on technical grounds unless it has resulted in failure of justice. The provisions akin to Section 21 are also contained in Section 11 of the Suit Valuation Act, 1887 and Section 99 of the Code of Civil Procedure. This Court had the occasion to consider the principle behind Section 21, Code of Civil Procedure and Section 11 of the Suit Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] . In para 7 of the judgment following was laid down: (AIR p. 342) "7. ... The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to 19 Neutral Citation No. ( 2024:HHC:11335 ) jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."

58. One more submission which was raised in the said appeal was considered by this Court. One of the submissions of the appellant who had instituted the suit in the subordinate court was that as per the revised valuation, the appeal against the decree of the subordinate Judge did not lie before the District Court but to the High Court, hence, the judgment of the District Judge in appeal should be ignored. The appeal in the High Court be treated as the first appeal. It was contended that the appellant has been prejudiced in the above manner. Rejecting the above submissions, this Court laid down the following in paras 11 and 12: (Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], AIR p.

343) "11. ... This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice, but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the appellants' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the undervaluation they obtained the right to two appeals, one to the District Court and another to the High Court. The complaint of the appellants really is not that they had been deprived of a right of appeal against the judgment of the subordinate court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection therefore amounts to this that a change in the forum of appeal is by 20 Neutral Citation No. ( 2024:HHC:11335 ) itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act.

12. The question, therefore, is, can a decree passed on appeal by a court which had jurisdiction to entertain it only by reason of undervaluation, be set aside on the ground that on a true valuation, the court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of Section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Parvathi Nethiar [Kelu Achan v. Cheriya Parvathi Nethiar, 1923 SCC OnLine Mad 356: ILR (1923) 46 Mad 631], Moolchand Motilal v. Ram Kishen [Moolchand Motilal v. Ram Kishen, 1933 SCC OnLine All 2: ILR (1933) 55 All 315] and Ramdeo v. Raj Narain [Ramdeo v. Raj Narain, 1948 SCC OnLine Pat 91: ILR (1948) 27 Pat 1091]. In our judgment, the opinion expressed in these decisions is correct."

59. The above principle has been reiterated by this Court in Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, AIR 1962 SC 199] and Bahrein Petroleum Co. Ltd. v. P.J. Pappu [Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC 634].

60. This Court in R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd. [R.S.D.V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd., (1993) 2 SCC 130] had again considered Section 21 of the Code of Civil Procedure. In paras 7 and 8, the following has been laid down: (SCC p. 136) "7. ... It may be further noted that the learned Single Judge trying the suit had recorded a finding that the Bombay Court had jurisdiction to entertain and decide the suit. Sub-section (1) of Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. The above provision clearly lays down that such objection 21 Neutral Citation No. ( 2024:HHC:11335 ) as to the place of suing shall be allowed by the appellate or Revisional Court subject to the following conditions:

(i) that such objection was taken in the court of first instance at the earliest possible opportunity;

(ii) in all cases where issues are settled then at or before such settlement of issues;

(iii) there has been a consequent failure of justice.

8. In the present case though the first two conditions are satisfied but the third condition of failure of justice is not fulfilled. As already mentioned above there was no dispute regarding the merits of the claim. The defendant has admitted the deposit of Rs 10,00,000 by the plaintiff, as well as the issuing of the five cheques. We are thus clearly of the view that there is no failure of justice to the defendant by decreeing of the suit by the learned Single Judge of the Bombay High Court, on the contrary, it would be totally unjust and a failure of justice to the plaintiff in case such objection relating to jurisdiction is to be maintained as allowed by the Division Bench of the High Court in its appellate jurisdiction."

61. In Harshad Chiman Lal Modi v. DLF Universal Ltd. [Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791], this Court had again considered Section 21 and other provisions of the Code of Civil Procedure. In para 30, the following has been laid down: (SCC pp. 803-04) "30. ... The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such an objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by 22 Neutral Citation No. ( 2024:HHC:11335 ) reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity."

62. Again, in Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas [Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650], this Court held that there is a distinction between lack of inherent jurisdiction and objection to territorial and pecuniary jurisdiction. This Court noticed the amendments made in Section 21 in the year 1976. The following was stated in paras 34, 37 and 41: (SCC pp. 666-67 & 669) "34. It may be noted that Section 21 provided that no objection as to the place of the suing can be allowed by even an appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or Revisional Court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice. ...

***

37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] followed by Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, AIR 1962 SC 199] and Bahrein Petroleum Co. Ltd. v. P.J. 23 Neutral Citation No. ( 2024:HHC:11335 ) Pappu [Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC 634]. Therefore, there is no justification in understanding the expression "objection as to place of suing" occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as an objection to place of suing.

***

41. In light of the above, it is clear that no objection to the pecuniary jurisdiction of the court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against that very decree unless it had been raised at the earliest opportunity and a failure of justice or prejudice was shown. Obviously, therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit.

63. Now, reverting back to the facts of this case it is apparent from the judgment dated 22-10-2016 of the Additional District Judge, that no objection to the competence of the Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge; Section 21 of the Civil Procedure Code comes into play. Sub- section (2) of Section 21 provides that no objection as to the competence of the court with reference to the pecuniary limits of the jurisdiction shall be allowed by any appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection has been raised by the respondent tenant regarding the competence of the court. Sub-section (2) precludes the revisionist to raise any objection regarding the competence of the court and further Revisional Court ought not to have allowed such objection regarding the competence of the Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding the competence of the court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn around and contend that the Court 24 Neutral Citation No. ( 2024:HHC:11335 ) of Additional District Judge had no jurisdiction to try the small cause suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by an unsuccessful party who did not raise any objection regarding the competence of the court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by the Additional District Judge, the tenant has not proved that there has been a consequent failure of justice."

25. This position was reiterated in Sneh Lata Goel v.

Pushplata, (2019) 3 SCC 594: (2019) 2 SCC (Civ) 219: 2019 SCC OnLine SC 45 wherein it was held at page 99:

16. The Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] then proceeded to examine the effect of Section 11 of the Suits Valuation Act, 1887 on this fundamental principle. This Court held thus: (AIR p. 342, para 7) "7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate court, except as provided in the section ... a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on overvaluation or undervaluation, should be dealt with under that section and not otherwise.

The reference to Section 578, now Section 99 CPC, in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, except from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, 25 Neutral Citation No. ( 2024:HHC:11335 ) when the courts which passed them lacked jurisdiction as a result of overvaluation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self- contained provision complete in itself, and no objection to jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or Revisional Court unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits."

(emphasis supplied)

17. Dealing with the question of whether a decree passed on appeal by a court which had jurisdiction to entertain it only by reason of undervaluation or overvaluation can be set aside on the ground that on a true valuation that court was not competent to entertain the appeal, the Court held that a mere change of forum is not "prejudice" within Section 11 of the Suits Valuation Act. This Court held thus: (Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], AIR pp. 343-44, para 12) "12. ... it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a subordinate court or District Court where 26 Neutral Citation No. ( 2024:HHC:11335 ) the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the subordinate court or the District Court must, without more, be liable to be set aside, and the words 'unless the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits' would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum.

A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing defects of jurisdiction arising by reason of overvaluation or undervaluation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined."

(emphasis supplied)

18. The Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] disallowed the objection to jurisdiction on the ground that no objection was raised at the first instance and that the party filing the suit was precluded from raising an objection to jurisdiction of that court at the appellate stage. This Court concluded thus: (AIR p. 345, para

16) "16. ... If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the overvaluation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up the want of jurisdiction in the court by the fact of their having themselves invoked it. That, however, 27 Neutral Citation No. ( 2024:HHC:11335 ) is not the position under Section 11 of the Suits Valuation Act."

Thus, where the defect in the jurisdiction is of the kind which falls within Section 21 CPC or Section 11 of the Suits Valuation Act, 1887, an objection to jurisdiction cannot be raised except in the manner and subject to the conditions mentioned thereunder. Far from helping the case of the respondent, the judgment in Kiran Singh [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject matter. An objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.

19. In Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, AIR 1962 SC 199], a person filed a suit on the original side of the High Court of Judicature at Bombay for recovering commission due to him. The matter was referred to arbitration and it resulted in an award in favour of the plaintiff. A decree was passed in terms of the award and was eventually incorporated in a decree of the High Court. In execution proceedings, the judgment-debtor resisted it on the ground that no part of the cause of action had arisen in Bombay, and therefore, the High Court had no jurisdiction to try the cause and that all proceedings following thereon were wholly without jurisdiction and thus a nullity. Rejecting this contention, a four-judge Bench of this Court held thus : (AIR p. 201, para 4) "4. The objection to its [Bombay High Court] territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under Clause 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of the court, raised by him in 28 Neutral Citation No. ( 2024:HHC:11335 ) his written statement. It is well settled that the objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. The competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure."

(emphasis supplied)

20. In Harshad Chiman Lal Modi v. DLF Universal Ltd. [Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791], this Court held that an objection to territorial and pecuniary jurisdiction has to be taken at the earliest possible opportunity. If it is not raised at the earliest, it cannot be allowed to be taken at a subsequent stage. This Court held thus: (SCC pp. 803-04, para 30) "30. ... The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity."

21. In Hasham Abbas Sayyad v. Usman Abbas Sayyad [Hasham Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355], a two-judge Bench of this Court held thus : (SCC pp. 363-64, para 24) 29 Neutral Citation No. ( 2024:HHC:11335 ) "24. We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a decree passed by a court having no jurisdiction in regard to the subject-matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with."

22. Similarly, in Mantoo Sarkar v. Oriental Insurance Co. Ltd. [Mantoo Sarkar v. Oriental Insurance Co. Ltd., (2009) 2 SCC 244: (2009) 1 SCC (Civ) 482: (2009) 1 SCC (Cri) 738], a two- Judge Bench of this Court held thus: (SCC p. 249, para 20) "20. A distinction, however, must be made between a jurisdiction with regard to the subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category, the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of the claim ... in our opinion, the court should not have, in the absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal."

26. In the present case, no objection was taken, no issue was framed and there is nothing on record to show that there is any failure of justice; hence, the submission that the Court at Shimla did not have jurisdiction cannot be accepted.

27. Even otherwise, the plea is not acceptable, the petitioner stated in his proof affidavit (Ext. PW1/A) that respondent No.1 took the minor to her parental home in Shimla. Respondent No.1 also stated that she brought the minor to Shimla, therefore, the minor 30 Neutral Citation No. ( 2024:HHC:11335 ) was ordinarily residing at Shimla with respondent No.1. It was laid down by this Court in Diwakar Dutt v. Kamlesh Kumari, 2021 SCC OnLine HP 115 that the Courts at the place where the minor would have resided but for his removal will have jurisdiction to hear and entertain the petition for his custody. Speaking through one of us (Mr Vivek Singh Thakur J), this Court observed:

"5. Provisions of Section 9 of the Act, relevant to the present case, prescribing jurisdiction to entertain the application are as under:--

"9(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"

6. Discussing the meaning and scope of the expression "where the minor ordinarily resides", the Supreme Court in Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 SCC 479 has observed as under: --

"24. 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.

25. 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.

Neutral Citation No. ( 2024:HHC:11335 )

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

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.)"

In Webster's 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 within.

3. To be vested: within"

28. In Annie Besent v. Narayaniah, AIR 1914 PC 41 the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie Besant for the purpose of education and were getting their education in England at the University of 32 Neutral Citation No. ( 2024:HHC:11335 ) Oxford. A case was, however, filed in the District Court of Chingleput for custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application their Lordships of the Privy Council observed:

"...The district court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act 1890. By the 9th Section of that Act the jurisdiction of the court is confined to infants ordinarily residing in the district. It is in their Lordship's opinion impossible to hold that the infants who had months previously left India with a view to being educated in England and going to university had acquired their ordinary residence in the district of Chingleput."

In Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, this Court was dealing with a case under Section 488 Cr.P.C. and the question of jurisdiction of the Court to entertain a petition for maintenance. The Court noticed a near unanimity of opinion as to what is meant by the use of the word "resides" appearing in the provision and held that "resides" implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words: (AIR p. 1524, para 8) ".......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word "resides" thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case....."

20. In Kuldip Nayar v. Union of India Reported in (2006) 7 SCC 1, the expression "ordinary residence" as used in the Representation of People Act, 1950 fell for interpretation. This Court observed:

Neutral Citation No. ( 2024:HHC:11335 ) "243. Lexicon refers to Cicutti v. Suffolk County Council, (1980) 3 All ER 689 to denote that the word "ordinarily" is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is "ordinary" and general, rather than merely for some special or limited purpose.

244. The words "ordinarily" and "resident" have been used together in other statutory provisions as well and as per Law Lexicon, they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.

245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.

246. Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on a permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at a particular place is incapable of ensuring nexus between him and the place in question."

31. Reference may be made to Bhagyalakshmi v. K.N. Narayana Rao, AIR 1983 Mad 9, Aparna Banerjee v. Tapan Banerjee, AIR 1986 P&H 113, Ram Sarup v. Chimman Lal, AIR 1952 All 79, Smt. Vimle Devi v. Smt. Maya Devi, AIR 1981 Raj 211, and In re: Dr. Giovanni Marco Muzzu, AIR 1983 Bom 242, in which the High Courts have dealt with the meaning and purport of the expressions like 'ordinary resident' and 'ordinarily resides' and taken the view that the question whether one is ordinarily residing at a given 34 Neutral Citation No. ( 2024:HHC:11335 ) place depends so much on the intention to make that place ones ordinary abode."

7. The Punjab and Haryana High Court in Ramesh Bhardwaj v. Ram Saran Dass, reported in PLR (1998-3) 120 P&H 35 has observed and held as under:

"8. ....It is true that the minor's ordinary place or residence necessarily may not be a place where his father who is the natural guardian resides, as held by the Andhra Pradesh in the case of Harihar Parshad Jaiswal (supra) and the Saurashtra High Court in the case of Bai Shri Arun Kumari (supra). In the case of Sarda Nayar (supra) decided by a Division Bench of the Kerala High Court also, it was observed that the place of ordinary residence of the minor would be the place where the minor would have continued to reside but for the recent removal of the minor to a different place.

9. In the present case, as stated in the earlier part of the judgment, the minor children were ordinarily residing in Chandigarh till their mother died on 28 th June 1996 and their father who is the natural guardian was arrested on the basis of the FIR lodged by the petitioner. The said minors were handed over to the petitioner during the proceedings of Criminal Writ Petition No. 890 of 1996 as the respondent who is the natural guardian was in custody. The respondent immediately after his release, filed Criminal Writ Petition No. 1706 of 1996 for the custody of the minor children and after he was relegated to civil remedy, he filed an application under Section 25 of the Act. From these facts, it is clear that the minor children would have continued to live in Chandigarh but for the fact that they were handed over to the petitioner in the facts and circumstances of the case. In view of these facts, I am of the opinion that the Courts in Chandigarh have jurisdiction to entertain and try the present application filed by the respondent under Section 25 of the Act."

8. Madras High Court in Bhagyalakshmi v. K. Narayana Rao reported in AIR 1983 Mad 9 has held as under: --

Neutral Citation No. ( 2024:HHC:11335 ) "7....The words 'ordinarily resides' would in my view connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion. The place of residence at the time of the filing of the application under the Act does not help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not, as it would be easy to stifle proceedings under the provisions of the Act by the mere act of the moving the minors from one place to another and consequently from one jurisdiction to another. The question whether the minors were ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. The paternal family of the house of the family residence may normally be taken to be the place of ordinary residence of the minors as well. The words 'ordinarily resides' are incapable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. The intention of not reverting back to the former place of residence would normally be relevant; but in the case of the minors, it is rather difficult to impute any such intention to them. It has also be borne in mind that mere temporary residence or residence by compulsion at a place however long, cannot be equated to or treated as the place of ordinary residence. Bearing in mind these considerations, it is necessary to ascertain from the materials available in this case as to where the minors 'ordinarily resided' for the purpose of the Act......."

9. The Rajasthan High Court in Hariom Ram Pratap v. Sunil reported in AIR 2011 Raj 138 has held: --

"9. It is not the place where the minor is presently residing when an application seeking custody is filed under Section 9 of 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 36 Neutral Citation No. ( 2024:HHC:11335 ) circumstances that upon the death of the 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 places at Gurgaon, that would not take away the jurisdiction of the Court at Nohar, where the father-natural guardian ordinarily resides and prior to the death of mother of the child, the child with his mother also used to live.

10. In these circumstances, in the present case after having filed the application under Section 9 of the Act for claiming custody of the child at Nohar, even though the child was removed from the custody and was taken away by a maternal grandfather to Gurgaon, Court at Nohar cannot be said to be lacking jurisdiction in the matter and therefore, the application under Order 11 Rule 7 CPC filed by maternal grandfather was rightly rejected by learned Court below."

10. Even in Dr Vinay Samuel Arawattigi v. Principal Judge, Family Court, Kanpur reported in AIR 2007 All 13, relied upon by the Family Court for returning the petition, Allahabad High Court has also observed:

"13. All these catenae of judgments, which have been quoted above are clear and categorical that only said District Court has jurisdiction to proceed with the matter under the Guardians and Wards Act within whose territorial jurisdiction the minor "ordinarily resides". The question as to whether said minor "ordinarily resides"

within the territorial jurisdiction of the aforementioned District Court is essentially a question of fact. When the issue is sought to be raised in this respect, then the burden of proving that the minor "ordinarily resides"

within the territorial jurisdiction of the aforementioned District Court lies with the applicant, who is moving an application before the District Court and the Court will have to decide this question on the basis of the evidence adduced and the facts and circumstances of each case. The court will have to see by way of evidence as to whether pleadings, which have been set up qua forceful 37 Neutral Citation No. ( 2024:HHC:11335 ) deprivation of custody are rightful pleadings or same has been mentioned only for the purposes of conferring jurisdiction. Jurisdiction cannot be permitted to be usurped and the question ordinary place of residence of the minor, when it is pleaded has been forcibly shifted has to be decided on the basis of the evidence adduced and the material available on the record qua the intention with which minor has been removed, the period with whom minor has been residing and all other relevant factors. 13-A.......Last residence, is not at all the relevant criteria and consideration for conferring jurisdiction, for the purposes of Section 9 of the Guardian and Wards Act and to the contrary, the Court within whose jurisdiction the minor ordinarily resides is the only relevant criteria for conferment of jurisdiction. Pleadings qua ordinary place of residence of minor at Kanpur is conspicuously missing and to the contrary pleadings on its own suggest, that minor is ordinarily residing at Miraj. In paragraph 8 respondent has admitted, that on the 2 nd birthday of Simran, the Respondent went to Miraj and participated in the same. Residence of a minor at Miraj has not at all been disputed."

11. After going through the judgment of Allahabad High Court in Dr Vinay Samuel's case, referred supra, it is apparent that it was observed by said Court that in that case pleadings qua ordinarily a place of residence of a minor at Kanpur was conspicuously missing and to the contrary, pleadings on its own were suggesting that minor was ordinarily residing at Miraj, Whereas, in the present case, it has been specifically pleaded in petition that minor was admitted in Modern Public School at Sanjauli at the age of 3½ years and present, he is a student of 5 th class in said school and petitioner and respondent No. 1, wife of petitioner, were living with their son at Sanjauli till June 2020 and it is only on 6 th June 2020 when respondent No. 1 ran away with respondent No. 2 and also took minor son Lakshay along with her without knowledge and consent of the petitioner.

12. I am in agreement with the principle propounded in aforesaid judgments that to determine the place of ordinary 38 Neutral Citation No. ( 2024:HHC:11335 ) residence with reference to provisions of Section 9 of the Act, the place of ordinary residence of the minor would be the place where the minor would have continued to reside but for recent removal of minor to a different place and the words "ordinarily resides" would connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion and place of residence at the time of the filing of a petition under the Act does not help to ascertain whether a particular Court has jurisdiction to entertain the proceedings or not as it would be easy to stifle proceedings under the provisions of the Act by the mere act of moving the minors from one place to another and consequently, from one jurisdiction to another.

28. A similar view was taken in the judgments cited at the bar and it is not necessary to refer them individually.

29. In the present case, when respondent No.1 left her matrimonial home to her parental home, she intended to settle in her parental home. Respondent No.1 also admitted that she was residing with respondent No.2 in Shimla, where respondent No.2 was running a boutique. This admission also shows that the intention of respondent No.1 was to settle in Shimla permanently.

Even if, she left for Mumbai and Lucknow in the interregnum does not mean that the minor was ordinarily residing in Mumbai or Lucknow where she did not have any intention to permanently settle; hence, the Courts at Shimla will have jurisdiction to hear and entertain the petition and the plea regarding the lack of territorial jurisdiction cannot be accepted even on merits.

Neutral Citation No. ( 2024:HHC:11335 )

30. Respondent No.1 asserted that the petitioner and his parents harassed her for dowry even though sufficient dowry was provided to them. This is falsified by the statement of Kushal Sharma (PW2) father of respondent No.1. He stated in his proof affidavit (Ext. PW2/A) that the petitioner and his family members never demanded dowry from respondent No. 1 to his knowledge.

Respondent No.1 was kept decently and everything was provided to her. Respondent No.1 talked to him during her stay in her matrimonial home and she never made any complaint regarding any harassment. He denied in his cross-examination that he was making a false statement at the instance of the petitioner.

31. He is the father of respondent No.1 and therefore the best person to know about any demand of dowry or harassment of respondent No. 1. There is nothing in his cross-examination to show that he was making a false statement. Hence, the plea taken by respondent No.1 that she was being harassed cannot be accepted to be correct.

32. Respondent No.1 admitted in her cross-examination that she resided with respondent No.2 in Mumbai voluntarily. She had a love relationship with respondent No.2 before her marriage.

She was residing with respondent No.2 in a live-in relationship. She 40 Neutral Citation No. ( 2024:HHC:11335 ) admitted that one daughter was born to her and respondent No.2.

She also resided in Lucknow in the house of respondent No.2. The minor also resided in Lucknow with her. The minor was not studying in any school on the date of deposition. However, he was admitted to a school in Lucknow. Minor was not studying in any school after May 2022. He was not admitted to any school in Shimla because of mid-session. Respondent No.2 was running a boutique at Shimla but she did not have any proof of this fact. She admitted that it takes a lot of money to admit a child to a good school. She admitted that the petitioner has a handloom business. She admitted that she does not have any source of income. She volunteered to say that she was educated and could bear the expenses of the minor's education. She was residing with the family of respondent No.2.

The school of the minor is at a distance of 10 minutes from her matrimonial home. She had not made any efforts to admit the minor to any Government school. She volunteered to say that she wanted to get the minor educated in a Convent School. She also admitted that she was unable to bear the expenses of providing education in a Convent School.

33. The statement of respondent No.1 clearly shows that she was not working in any school on the date of the deposition. She 41 Neutral Citation No. ( 2024:HHC:11335 ) also admitted that the minor was not studying in any school and that she was unable to provide expenses for educating him in a Convent School. These admissions show that the welfare of the minor is not with her as she had failed to provide any education to the minor. She even did not get the child admitted to a government school (where the education is free) on the pretext that the child was to be provided education in a Convent school. When she does not have any resources to get the child educated in a Convent School, it is difficult to see how she can provide education to a minor.

34. The petitioner is running a handloom business, which fact was admitted by respondent No.1, therefore, he is in a position to provide education to the minor. It was submitted on behalf of the respondents that financial capacity is no guarantee of the welfare of the minor. Reliance was placed upon the judgment of the Hon'ble Supreme Court in Dhanwanti Joshi (supra), wherein it was observed:

22. We shall next consider the point which solely appealed to the Family Court and the High Court in the present proceedings namely that the respondent is financially well off and can take care of the child better and give him a superior education in the USA. Lindley, L.J. in McGrath (infants), Re [(1893) 1 Ch 143: 62 LJ Ch 208] Ch at p. 148 stated that:

Neutral Citation No. ( 2024:HHC:11335 ) "... the welfare of the child is not to be measured by money alone nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

23. As to the "secondary" nature of material considerations, Hardy Boys, J. of the New Zealand Court said in Walker v. Walker & Harrison [1981 New Ze Recent Law 257] (cited by British Law Commission, Working Paper No. 96, para 6.10):

"Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's character, personality and talents."

24. From the above, it is clear that the High Court in the case before us was clearly in error in giving sole or more importance to the superior financial capacity of the husband as stated by him in his evidence. Assuming that his financial capacity is superior to that of his wife, that in our opinion cannot be the sole ground for disturbing the child from his mother's custody. As of today, the child is getting a good education and is doing well in his studies. The proposal of an immediate American education which the father is prepared to finance cannot, in our opinion, be a sufficient ground for shifting the child to the father's custody, ignoring the fact that for the last more than 12 years, the child has been in the mother's custody. There is also, no basis, having regard to the oral evidence adduced by the parties, for holding that the mother is permanently residing at Bombay leaving the child 43 Neutral Citation No. ( 2024:HHC:11335 ) at Pune. The appellant's categorical evidence that whenever she had to go to Bombay from Pune, her mother used to come from Bombay to Pune to take care of the child, leaves no doubt in our mind that the mother is residing mostly in Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. The appellant has also reiterated before us that she has been residing in Pune and she has a flat there. As contended by her, the child is a citizen of the USA by birth and he can go to the USA in his own right in future, whenever it is so decided. Further the evidence of the respondent and his brother that in the event the child is allowed to go to the USA with the respondent, the respondent's brother and the latter's wife have agreed to proceed to the USA, leaving their three daughters in India (of whom one has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make-believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have the company of these persons in case the child is allowed to proceed to the USA. This evidence has not appealed to us."

35. It is apparent from the judgment that the minor was undergoing proper education and the Hon'ble Supreme Court held in these circumstances that mere financial capacity is not sufficient to decide the custody of the minor. In the present case, when the minor is not undergoing education in any school and respondent No.1 is unable to manage resources for the education of the child in a good school, the cited judgment does not apply to the present case.

Neutral Citation No. ( 2024:HHC:11335 )

36. It was laid down by the Hon'ble Supreme Court in Smriti Madan Kansagra (supra)that while determining the custody of the minor child, the paramount consideration is the welfare of the child and not the rights of the parents. It was observed:

"Discussion and Analysis

15. We have carefully considered and deliberated upon the oral and written submissions made by Mr Shyam Divan, Senior Advocate, instructed by Mr P. Banerjee and Ms Nidhi Mohan Parashar on behalf of the appellant; and the submissions made by Mr Anunaya Mehta, Advocate instructed by Ms Inderjeet Saroop, Advocate representing the respondent. The issue which has arisen for our consideration is as to what should be the dispensation to be followed with respect to the custody of the minor child, Aditya who is now 11 years of age, till he attains the age of majority in 7 years time."

15.1. It is a well-settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout. The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter-allegations made against each other with respect to their matrimonial life. In Rosy Jacob v. Jacob A. Chakramakkal [Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840] this Court held that : (SCC p. 855, para 15) "15. ... The children are not mere chattels: nor are they mere playthings for their parents. The absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so 45 Neutral Citation No. ( 2024:HHC:11335 ) that they may grow up in a normal balanced manner to be useful members of the society...." (emphasis supplied) 15.2. A three-judge Bench of this Court in V. Ravi Chandran (2) v. Union of India [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] opined : (SCC p. 194, para 27) "27. ... It was also held that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of the parties, but on the sole and predominant criterion of what would serve the best interest of the minor." (emphasis supplied) 15.3. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides that the welfare of the minor must be of paramount consideration while deciding custody disputes. Section 13 provides as under:

"13. Welfare of minors to be the paramount consideration.--(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus if the court is of the opinion that his or her guardianship will not be for the welfare of the minor."

15.4. This Court in Gaurav Nagpal v. Sumedha Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] held that the term "welfare" used in Section 13 must be construed in a manner to give it the widest interpretation. The moral and ethical welfare of the child must weigh with the court, as much as the physical well-being. This was reiterated in Vivek Singh v. Romani Singh [Vivek Singh v. Romani Singh, (2017) 3 SCC 231 : (2017) 2 SCC (Civ) 1], wherein it was opined that the "welfare" of the child 46 Neutral Citation No. ( 2024:HHC:11335 ) comprehends an environment which would be most conducive for the optimal growth and development of the personality of the child.

15.5. To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child.

15.6. This Court in Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413] set out the principles governing the custody of minor children in para 52 as follows : (SCC p. 428) "Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting the proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say even more important, essential and 47 Neutral Citation No. ( 2024:HHC:11335 ) indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."

(emphasis in original) 15.7. Section 17 of the Guardians and Wards Act, 1890 provides:

"17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) [Omitted] (5) The Court shall not appoint or declare any person to be a guardian against his will." (emphasis supplied) 15.8. In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.

Neutral Citation No. ( 2024:HHC:11335 )

37. In the present case, the minor is not being provided with any education, which is the basic requirement in modern-day society. Therefore, the learned Trial Court erred in holding that the welfare of the minor was with his mother. When the mother was not providing any education and she was not in a position to manage resources to provide sufficient education, it cannot be said that the welfare of the minor was with the mother.

38. It is admitted that respondent No.1 has been residing with respondent No.2 in a live-in relationship without any marriage. One child was born to them. It was laid down by Manipur High Court in Jaswant Kaur (supra) that where the mother was residing with another person without any marriage, the minor could not be permitted to reside with her as it would constitute a bad influence upon the minor. It was observed:

"We have also to keep in mind the parentage and the religion of the minor, as pointed out in the Privy Council decision cited above. We have to see whether the custody of the father or the mother will be better to have the minor properly brought up and educated in proper surroundings, keeping in mind his parentage and his religion. It is clear that as he was born to Sikh parents, he has to be brought up like any other Sikh child. It is in evidence that the Sikh community in Imphal have made arrangements for educating their children. There can be no doubt that it will be better for a child belonging to the Sikh community to be brought up in their traditions.

Neutral Citation No. ( 2024:HHC:11335 ) Jaswant Kaur in her evidence even denied that her husband Chanan Singh belonged to the Sikh religion. This one piece of evidence is sufficient for the Court to decide that the child cannot be left in her custody. At present this child lives in the midst of the Manipur community whose customs and manners and religion are quite different from those of the Sikh community. According, to the Sikhs, the hair of their children cannot be cut. But the hair of this child has been cut because he lives in the midst of Manipuri children whose hair is cut. Again, he attends a School, where the necessary coaching for children of the Sikh community is not given. However, much we may wish that all these distinctions of caste and community, religion and customs should change in this country, the Court has to take note of the fact that such distinctions still persist in this country and so long as such distinctions are there, the children of the different communities and religions have got to be brought up in the environments suitable to such communities and religions. More than all this, it is not at all desirable that the child should be brought up by the mother who has refused most unjustifiably to join her husband and is openly living with a divorced young person belonging to another community. I may state here that when it was brought out from the evidence of D.W.2 on 20-2-1960 that the wife of Chinglen Singh had been divorced before Jaswant Kaur came to live with Chinglen Singh, the very next witness Chinglen Singh as D.W.3 stated on 27-2-1960 that his wife had returned to his house the previous day. Thus, an attempt was made to camouflage the fact that Chinglen Singh and Jaswant Kaur were living in the same house as man and wife. It is certainly against the interest and welfare of the minor child that he should stay with a mother of that kind. The stigma will be attached to the minor throughout his life and the Court cannot permit it."

39. In the given facts and circumstances of the case, we feel that continuation of custody of minor with his mother shall have an adverse impact on his social life, psychology, personality 50 Neutral Citation No. ( 2024:HHC:11335 ) development and future. It shall also be against the mandate of Section 6 and 13 of Hindu Minority and Guardianship Act, 1956.

40. The learned Trial Court was influenced by the post graduation of respondent No.1 in Computer Sciences to grant minor's custody to her but ignored that she was not utilizing her education to generate any income; hence, her qualification is not relevant to determine the question of custody.

41. No other point was urged.

42. Thus, the learned Trial Court erred in holding that the welfare of the minor is with respondent No.1. and not with the petitioner. Hence, the judgment passed by the learned Trial Court cannot be sustained.

43. In view of the above, the present petition is allowed and the custody of the minor is ordered to be handed over to the petitioner. Respondent No.1 will have visitation rights on the minor and she will be entitled to interact with the minor by video conferencing and visit the minor during his vacations. Learned Trial Court will be free to modify the visitation rights on the application of the parties.

Neutral Citation No. ( 2024:HHC:11335 )

44. The present petition stands disposed of and so are the miscellaneous application(s), if any. Record of learned Trial Court be returned forthwith.

(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 14th November, 2024 (saurav pathania)

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Himachal Pradesh High Court