Gujarat High Court
Amit Dhansing Jagtap vs Chandrashekhar Uttamrao Shinde on 15 October, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1268/2023 JUDGMENT DATED: 15/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1268 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/FIRST APPEAL NO. 1268 of 2023
With
R/FIRST APPEAL NO. 4464 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4464 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMIT DHANSING JAGTAP & ORS.
Versus
CHANDRASHEKHAR UTTAMRAO SHINDE
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Appearance:
MR PARTH B THUMMAR(13122) for the Appellant(s) No. 1,2,3
MANAN K PANERI(7959) for the Defendant(s) No. 1
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NEUTRAL CITATION
C/FA/1268/2023 JUDGMENT DATED: 15/10/2024
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/10/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 Heard the learned counsels appearing for the respective parties. With consent of the learned advocates appearing for the respective parties, the First Appeal No. 1268 of 2023 is taken up for final hearing today. 2 Admit. Both the learned counsels for the respective parties waive service of notice of admission. 3 First Appeal No. 1268 of 2023 has been filed by the appellant, Amit Dhansing Jagtap & Anr, wherein, challenge is to the order dated 11.10.2022 passed by the Principal Judge, Family Court, Navsari, in Exh.14 preferred by the appellants in Civil Miscellaneous Application No. 12 of 2022. The Exh.14 application of the appellants questioning the jurisdiction of the Navsari Court was rejected. Civil Miscellaneous Application No. Page 2 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 12 of 2022 was filed by the appellant of First Appeal No. 4464 of 2023 praying for custody of minor child Varad before the Navsari Court. In the custody application, since the Family Court by its order dated 12.06.2023 did not give custody of the child to the father, hence First Appeal No. 4464 of 2023, is filed by the father challenging the order refusing the interim custody. 4 We have heard First Appeal No. 1268 of 2023 as it involves consideration of an order below Exh.14, by which, the Court at Navsari held that it had jurisdiction to entertain the custody application.
5 In the main application for custody filed by the father, Chandrashekhar Uttamrao Shinde, under Sec.9 of the Guardians & Wards Act, 1890, it was the case of the father that he was engaged as an Assistant Professor at Navsari Agricultural University since 02.03.2013. He entered into matrimony with the deceased Mayuriben on 26.04.2016. The marriage took place at Baramati, Page 3 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Maharashtra. The father in his application for custody of the minor son Varad stated that out of the wedlock, Varad was born on 12.08.2017. During the currency of the marriage, the wife and the son kept on traveling between Navsari and their hometown at Baramati. Unfortunately, on 15.09.2021, Mayuriben, the wife committed suicide. The application further states that on the next day i.e. on 16.09.2021, the family of Mayuriben, i.e. the appellants of First Appeal No. 1283 of 2023, the family of Mayuriben which included the appellants, came to Navsari and took away the child together with the body of the mother to their village Pandare, i.e. the maternal home of the deceased mother. The last rites took place on 17.09.2021. The application for custody further states that the custody of the child Varad was forcibly taken away by the in-laws and it is in that context that the child was taken to Baramati, whereas, prior thereto, i.e. the death of his wife and the mother of the child, the child continued to be residing with the father at Navsari. It is in the background of these facts that the application for custody Page 4 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the child Varad was made before the Navsari court. 5.1 It is thereafter, that the appellants of the First Appeal No. 1268 of 2023, the maternal uncle and maternal grand parents of the child made an application Exh.14 disputing the jurisdiction of the Navsari Court. In the application so filed, it was the case of the appellants of this appeal that the child Varad was actually residing at Pandhare, Taluka: Baramati, that is in Pune. Being a resident of the State of Maharashtra, the Navsari Court would have no jurisdiction. The Court rejected the application.
5.2 Before the Family Court, as is evident from the impugned order, two Aadhar Cards were produced. One by the father Chandrashekhar Uttamrao Shinde showing an address of Koparde, Taluka: Khandala, District: Satara and the other Aadhar Card produced by the appellants (maternal grand parents) showing the address in the Aadhar Card of the child at Village: Pandare, Taluka: Page 5 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Baramati, District: Pune. Perusal of the impugned order by which the application for jurisdiction was rejected by the Trial Court would indicate that after taking into consideration these Aadhar Cards, the Trial Court held that since the father alleged that the child was forcibly taken away from Navsari while the father was serving at the Agricultural University, Navsari, and as the genuineness of the Aadhar Cards was disputed, the fact that he was residing at Navsari prior to 16.09.2021, would mean that the child was "ordinarily residing at Navsari". The application was rejected.
6 Mr.Parth Thummar, learned counsel appearing for the appellants would take us through the relevant dates. He would submit that after the marriage, the birth of the child was on 12.08.2017, the mother Mayuriben died on 15.09.2021. The last rites took place on 17.09.2021 and till the application for custody was filed on 05.05.2022, the child indisputably after his mother's death was residing in Maharashtra, and therefore, the observation Page 6 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the Trial Court that since in the past he was residing in Navsari was erroneous. He would submit that the very fact that Varad was in Maharashtra on the date when the custody application was filed and months preceding thereto, it should have been taken as an undisputed fact that the child was ordinarily residing in Maharashtra. 6.1 Mr.Thummar, learned counsel, would take us through the provisions of Sec.9 of the Guardians & Wards Act. Since we had also asked Mr.Thummar, to address us on the question of maintainability of the appeal, in support of the fact that the appeal was maintainable though, it was an application of interim nature and barred by Sec.19 of the Family Courts' Act, Mr.Parth Thummar, learned counsel, has cited the following decisions:
(1) In the case of Madhavan Vs. Chellamma., reported in 2003 SCC Online Ker 596 (Para 2).
(2) In the case of Ravindra Harshad Parmar Vs. Dimple Ravindra Parmar., rendered in (CWP No. 8317/2023) (Bombay HC).Page 7 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 6.2 On the issue of interpretation of the term "ordinarily resides", Mr.Thummar, learned counsel, cited decision in the case of Salini Vs. Umasankaran., reported in 2016 SCC OnLine Ker 29041. Reading the relevant paragraphs of the decision, Mr.Thummar, learned counsel, would submit that since welfare of the child is of paramount importance, that was an issue which the jurisdictional Court can take into consideration. Undisputed and factual averments indicated that the child Varad was in fact staying in Maharashtra, and therefore, since Maharashtra being the permanent residence, the Court at Navsari would have no jurisdiction. Varad for a considerably long period was in Pune which should have weighed in favour of the appellants. He would submit that importance of attendant circumstances was also considered by the Kerala High Court. In the facts of this case, since the mother has committed suicide, the father did not deserve the custody of the child. He would rely on a decision in the case of Ram Sarup Vs. Chimman Lal., reported in 1951 SCC Page 8 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined OnLIne AII 238., to submit that the learned judge has committed an error to construe the fact of past residence to mean as "ordinary residence". Reliance was also placed on a decision in the case of Kiritbhai Meghjibhai Rathod Vs. Kanjibhai Virabhai Solanki., rendered in Appeal From Order No. 95 of 2022 dated 25.09.2023, on the ground that it would be applicable in the facts of the present case. That there cannot be a presumption that the ordinary residence would mean the residence where the natural guardian would reside. Reliance was also placed on a decision in the case of Dilip Kr.Behera Vs. Puspanjali Behera., reported in AIR 2015 Ori
200., to submit that the term "ordinarily resides" cannot be said to mean "would have resided or should have resided".
7 Mr.Manan Paneri, learned counsel for the respondent - father would make the following submissions:
7.1 He would submit that the very fact that the father Page 9 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined had disputed the location of the child at Pune by virtue of he having been taken away forcibly from Navsari would not automatically render the Navsari Court as the Court being without jurisdiction. He would submit that material was placed on record together with the application in terms of evidence of school records, fee receipts preceding the unfortunate date of death of the mother to indicate that the child was studying in a school at Navsari. Admittedly, therefore, considering the duration of the stay of the child at Navsari as compared to the child forcibly having been taken to Pune should have weighed, and therefore, infact, the learned Judge committed no error in holding that since the child was residing at Navsari that should be taken as an ordinary resident of Navsari. He would also rely on a decision of the Hon'ble Supreme Court in the case of Ruchi Majoo Vs. Sanjeev Majoo., reported in AIR (2011) 6 SCC
479. He would read the relevant paragraphs, particularly, paragraphs 13 and 14, which interprets the term "ordinary residence" and he would, therefore, Page 10 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined submit that admittedly when Navsari was the home of the child prior to the death of the mother and during the subsistence of marriage that may be taken to be the city where the child would reside, the Court, therefore, rightly had jurisdiction.
7.2 Mr.Paneri, learned counsel, would also rely on a decision of the Division Bench of this Court in the case of Shah Harichand Ratanchand Vs. Virbbal & Ors., reported in AIR (1974) GLR 499. He would press into service the observations made in paragraph 3 of the judgement to indicate that even if an application is made after the removal of the child from the father's custody, it would be the father's place which would be the place where the minor ordinarily resides.
8 Having considered the submissions made by the learned counsels appearing for the respective parties and having perused the order of the Family Court under the Guardians & Wards Act, at the first blush, it appears that Page 11 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined the issue of jurisdiction that the learned Family Court has decided was plain and simple. On the undisputed facts that the Aadhar Cards showed the address at Maharashtra, the child was a resident of Maharashtra, and therefore, taking that as a permanent residence, the Navsari Court could have no jurisdiction. At the same time, the question is whether when an allegation is made in the application for custody that the child was forcibly taken to Pune and that preceding the death of the mother the child was staying at Navsari, could also be a circumstance. The Family Court rather than weighing option in light of the definition of the term "ordinary residence", could not have decided merely on a presumption that since the child was in past residing at Navsari, the very Court would have jurisdiction.
8.1 The second question also is whether the Trial Court could have extensively referred to the definition of "the Court" under Sec.4(5)(ii), rather than Section 9 of the Act. In other words, unless and until the term "ordinarily Page 12 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined resides" is extensively decided by leading evidence by the parties.
8.2 In the facts of this case, the question that needs to be answered is whether merely past instances of the child's residence in Navsari could have solely been the weighing factor for rejecting the application under Sec.9 of the Act [rather then dwelling on Sec.4(5)(ii)]. It is in light of this that we may consider decisions cited by the counsels for the respective parties. Since we had asked Mr.Thummar, learned advocate, to address us on the maintainability of the first appeal, two decisions, of the Kerala High Court and the Bombay High Court have been cited before us i.e. Madhavan (supra) and Ravindra Harshad Parmar(supra). The Bombay High Court in Ravindra Parmar (supra), has held that when an order deciding the question of jurisdiction of the Court to entertain and try the proceedings is an order which cannot be subject to a change or a subsequent correction, the proceedings cannot be said to be interlocutory in Page 13 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined nature.
8.3 Here is a case where an application for jurisdiction of the Court has been rejected. We are also conscious of a Division Bench judgement of this Court in the case of Rajan Ankleshwaria S/o Manojkumar Babulal Ankleshwariya Vs. Vinni Ankleshwariya D/o mahesh Gulshanrai Malhotra W/O Rajan Ankleshwaria reported in (2024) 3 GLR 1810, wherein in the facts of the case, the Division Bench in para 15 and 16 held as under:
"15. The meaning of an interlocutory order is that if the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. So, in the ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial or main application, which does not however conclude the main controversy itself and as such, if the term interlocutory order if interpreted in its logical and natural sense, same would not decide finality of issue. Here in the case on hand, perusal of the relief of the main application i.e. Civil Misc. Application No.4 of 2023 is clearly indicating that same has been filed for return of the custody of minor and a relief to declare that opponent is not entitled to take minor Page 14 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined child outside the jurisdiction and also sought a permanent relief to restrain the opponent from taking the minor out of jurisdiction of the Court, whereas interim prayer which has been made in an application which is filed in the main application below Exh.6, is to direct the opponent to return the custody of minor to the applicant and temporarily restrain the opponent from taking the minor outside the jurisdiction and as such while deciding the application Exh.6, rights with regard to return of the custody issue has not been finally decided and as such, by no stretch of imagination it can be said that impugned order is not an interlocutory order. To more amplify the above conclusion, to treat the impugned order as interlocutory order, we have an assistance of following decisions which we feel it necessary to quote hereunder:-
(1) In the case of Vishal Kochar v. Pulkit Sahni and Another reported in 2022 SCC OnLine Raj 3337, the Court has observed based upon the decision of Hon'ble the Apex Court reported in AIR 1980 SC 962 and since some of the observations are very relevant, we deem it proper to quote paragraph 7 hereunder:-
"7. Term 'Interlocutory Order' has not been defined in the Cr.P.C. Hon'ble Apex Court in the case of V.C. Shukla vs State, reported in AIR 1980 (SC) 962 , has given following observation in para No.23 regarding the nature of interlocutory order:-
"Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in the ordinary sense of the term, an interlocutory order is one which only decides a particular Page 15 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having to resort to Criminal Procedure Code or any other statute. 'That is to say, if we construe interlocutory order in ordinary (4 of 13) [CRLR-462/2021] parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in s. 11(1) of the Act."
8. Further, in the case of Madhu Limaye vs State of Maharashtra, reported in (1977) 4 SCC 551, the Hon'ble Apex Court has made following observations with regard to the criterion of interlocutory order:-
"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:-
"....... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required.' In para 1607 it is said:-
"In general a judgment or order which determines the principal matter in question is termed "final".
"In para 1608 at pages 744 and 745 we find the words:-Page 16 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined "An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the- final judgment are to be worked out, is termed "interlocutory". An (5 of 13) [CRLR-462/2021] interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
(2) Yet, in another decision of Hon'ble the Apex Court in the case of Honnaiah T.H. v. State of Karnataka and others reported in 2022 LiveLaw (SC) 672, observations contained in paragraph12 are relevant, which we deem it proper to quote hereunder:
"12 There would be a serious miscarriage of justice in the course of the criminal trial if the statement were not to be marked as an exhibit since that forms the basis of the registration of the FIR. The order of the trial judge cannot in these circumstances be treated as merely procedural or of an interlocutory in nature since it has the potential to affect the substantive course of the prosecution. The revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. 5 A court can exercise its revisional jurisdiction against a final order of acquittal or conviction, or an intermediate order not being interlocutory in nature. In the decision in Amar Nath v State of Haryana, 6 this Court explained the meaning of the term "interlocutory order" in Section 397(2) CrPC.
This Court held that the expression Page 17 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined
"interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the right of the parties cannot be said to be an "interlocutory order".
Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali observed:
"6. [...] It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 6 (1977) 4 SCC 137 as to be outside the purview of the revisional jurisdiction of the High Court."Page 18 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Explaining the historical reason for the enactment of Section 397(2) CrPC, this Court observed in Amar Nath (supra) that the wide power of revision of the High Court is restricted as a matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse." In KK Patel v State of Gujarat,7 where a criminal revision was filed against an order taking cognizance and issuing process, this Court followed the view as expressed in Amar Nath (supra), and observed:
"11. [....] It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v State of Haryana, Madhu Limaye v State of Maharashtra, 8 VC Shukla v State,9 and Rajendra Kumar Sitaram Pande v Uttam 10). The feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
16. From the aforesaid situation, we are of the clear opinion that so long as the relief of seeking return of the child is not finally decided by virtue of impugned order, same cannot be said to be an interim order, but is merely an interlocutory order since said impugned order is neither finally deciding the right of the applicant about custody nor terminating the Page 19 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined main application. Since that be the situation, it is not possible for us to construe the impugned order as not an interlocutory order."
8.4 We may note that this decision would operate against the appellant of First Appeal No. 4464 of 2023. However, it also makes us to take a view that prima facie, the present appeal i.e. First Appeal No. 1283 of 2023 would be maintainable in light of what the Division Bench has said and what the Bombay High Court has said and we have quoted in our own words.
8.5 Coming now to the question of jurisdiction, the word "ordinarily resides" is set out in section 9 of the Guardians & Wards Act. Sec.9(1) of the Act, and the same reads as under:
"9 . Court having jurisdiction to entertain application.-
(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Page 20 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Court having jurisdiction in the place where he has property.
If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction." 8.6 With great respect to the learned Judge of the Family Court, it was Sec.9 that should have been considered by him and not section 4(5)(ii) of the Act merely because the section was cited by the parties or their advocates discounting their ignorance. The term "Ordinarily resides", has been interpreted by the Division Bench of the Kerala High Court in the case of Salini (supra). The Kerala High Court has considered the decisions of the Hon'ble Supreme Court and set out the principles emanating therefrom in para 19 of the judgement. Para 19 thereof, reads as under:
"19.The principles emanating from the various decisions supra on the point are enumerated and those would guide us to arrive at a finding about the jurisdictional issue involved in the case.
(1) The Courts in seizin of issues relating to custody shall bear in mind that the welfare of the child is of paramount importance when the Page 21 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined jurisdictional issue is under its consideration. (2) Undoubtedly the child's ordinary place of residence would be the place of abode of parents when he is in the company of them. (3) Custody applications would normally come in circumstances of strained relationship of the parents and the consequent living of either of them separately; in cases of retention of the child by in-laws or other relatives after the death of either of the spouse; and in case of retention of the child by some of his relatives in a case where both his parents are not alive.
Living apart can also be on reasons of one among the spouses being employed abroad or elsewhere in the country. In case of the spouses living apart, or are no more, the person with whom the child shares his residence for a considerably long period should be given preference by the court while dealing with custody applications.
(4) In case the parties have a permanent residence or a regular home and the child out of circumstances of compulsion of his education or parents' employment is constrained to stay at different places, the court should see, the place where the permanent residence is built by the parties intending thereby to stay together lifelong would be of relevance while the jurisdictional issue is in seizin of a Court." 8.7 Sub-para, paragraphs 3 and 4 of para 19, when read would indicate that custody applications would normally come in circumstances of strained relationship of parents and the consequent living of either of them separately. In cases of retention of the child by in-laws or other relatives Page 22 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined after the death of either of the spouse is one such circumstance. The facts of this case are a circumstance which indicate that here is a case where the retention of the child by in-laws after the death of the mother is a question. Albeit, the retention of the child with the in- laws according to the applicant of the custody application is by force by the appellants. Whereas, the case of the appellants in this appeal is that since the permanent residence is that of Pune, the Navsari Court had no jurisdiction. That is what is also considered by the Kerala High Court in sub- para 4 of para 19. A decision of the learned Single Judge of this Court in the case of Kiritbhai Meghjibhai Rathod (supra), does say that there cannot be a presumption that the place where the minor resides would mean the residence of his natural guardian i.e. in the facts of this case Navsari and so also a decision in the case of Dilip Behera (supra), where the term "ordinarily resides" should not be construed as "would have resided or should have resided" as has been done in the facts of the present case by the learned Judge Page 23 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the Family Court while coming to the conclusion that since he was in the past residing at Navsari, the Navsari Court had jurisdiction.
8.8 All these decisions, have lost sight of the decision of the Hon'ble Supreme Court in the case of Ruchi Majoo (supra), where the question before the Hon'ble Supreme Court was whether the Delhi Court had jurisdiction to entertain an application for custody. The question of interpretation of the term "ordinarily resides" was therefore considered in its own factual background which is set out in para 5 to 11 of the Hon'ble Supreme Court, which reads as under:
"5. There is no gainsaying that any challenge to the jurisdiction of the court will have to be seen in the context of the averments made in the pleadings of the parties and the requirement of Section 9 of the Guardian and Wards Act, 1890. A closer look at the pleadings of the parties is, therefore, necessary before we advert to the legal requirement that must be satisfied for the Court to exercise its powers under the Act mentioned above.
6. The appellant-mother had in her petition filed under the Guardian and Wards Act, 1890 invoked the jurisdiction of the Court at Delhi, on the assertion that the minor was, on the date of the Page 24 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined presentation of the petition for custody ordinarily residing at 73 Anand Lok, August Kranti Marg, New Delhi. The petition enumerated at length the alleged acts of mental and physical cruelty of the respondent- husband towards the appellant, including his alleged addiction to pornographic films, internet sex and adulterous behavior during the couple's stay in America. It traced the sequence of events that brought them to India for a vacation and the alleged misdemeanor of the respondent that led to the appellant taking a decision to past company and to stay back in India instead of returning to United States as originally planned. In para (xxxviii) of the petition, the appellant said :
"That the petitioner in no certain terms told the respondent that considering his past conduct which was cruel, inhuman and insulting as well as humiliating, the petitioner has no plans to be with the respondent and wanted to stay away from him. The petitioner even proposed that since there was no (sic) possibility for them to stay together as husband and wife and as a result of which the petitioner has decided to settle in India for the time being, therefore some interim arrangement could be worked out. The arrangement which was proposed by the petitioner was that the petitioner will stay with her son for the time being in India and make best arrangements for his schooling. The petitioner had also conveyed to the respondent that since he wanted to have visitation rights, therefore, he must also contribute towards the upbringing of the child in India. It was further suggested that some cooling off period should be there so that the matrimonial disputes could be sorted out subsequently."
7. The appellant further alleged that she had informed the respondent about a petition under Page 25 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined the Guardian and Wards Act being ready for presentation before the Guardian Court at Delhi, whereupon the respondent is alleged to have agreed to the appellant staying back in Delhi to explore career options and to the minor continuing to stay with her. The respondent eventually returned to America around 20th July, 2008, whereafter he is alleged to have started threatening the appellant that unless the later returned to America with the minor, he would have the child removed and put in the custody of the respondent's parents at Udaipur. Apprehending that the respondent may involve the appellant in some false litigation in America and asserting that she was fit to be given the custody of the minor being his mother and natural guardian, the appellant sought the intervention of this Court and her appointment as sole guardian of the minor.
8. Shortly after the presentation of the main petition, an application under Section 12 of the Guardian and Wards Act read with Section 151 of the Civil Procedure Code was filed by the appellant praying for an ex-parte interim order restraining the respondent and/or any one on his behalf from taking away and/or physically removing the minor from her custody and for an order granting interim custody of the minor to the appellant till further orders. The application set out the circumstances in brief that compelled the appellant to seek urgent interim directions from the court and referred to an e-mail received from the father of the minor by the Delhi Public School (International) at R.K. Puram, where the minor is studying, accusing the mother of abducting the minor child and asking the school authorities to refuse admission to him. The application also referred to an e-mail which the Principal of the school had in turn sent to the appellant and the order which the US Court had passed granting custody of minor child to the respondent. The appellant alleged that the US Court Page 26 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined had no jurisdiction in the matter and that the order passed by that Court was liable to be ignored. On the presentation of the above application the Guardian Court passed an ex-parte interim order on 16th September, 2008 directing that the respondent shall not interfere with the appellant's custody of the minor child till the next date of hearing.
9. The respondent entered appearance in the above proceedings and filed an application for dismissal of the petition on the ground that the court at Delhi had no jurisdiction to entertain the same. In the application the respondent denied all the allegations and averments suggesting habitual internet sex, womanizing, dowry demand and sexual or behavioural perversity alleged against him. The respondent also alleged that the family had planned a vacation-cum-family visit to India and booked return air tickets to be in America on 20th July, 2008. The respondent's version was that the appellant along with the respondent and their minor son, Kush had stayed with the parents of the appellant at Delhi till 5th July, 2008. Thereafter, they were supposed to visit Udaipur but since the appellant insisted that she would stay at Delhi and assured to send Kush after sometime to Udaipur, the respondent left for Udaipur where he received a legal notice on behalf of the appellant making false and imaginary allegations. On receipt of the notice the respondent returned to Delhi to sort out the matter. During the mediation the respondent was allegedly subjected to enormous cruelty, pressure and threat of proceedings under Section 498A IPC so as to obstruct his departure scheduled on 20th July, 2008. The respondent alleged that since any delay in his departure could cost him a comfortable job in United States, he felt coerced to put in writing a tentative arrangement on the ground of appellant trying "career option of Dental medicine at Delhi"
and master Kush being allowed to study at Delhi for the year 2008. This letter was, according to the Page 27 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined respondent, written under deceit, pressure, threat and coercion. At any rate the letter constituted his consent to an arrangement, which according to him stood withdrawn because of his subsequent conduct. It was alleged that neither the appellant nor Kush could be ordinarily resident of Delhi so as to confer jurisdiction upon the Delhi Court. Several other allegations were also made in the application including the assertion that the interim order of custody and summons issued by the Superior Court of California, County of Ventura were served by e- mail on the appellant as also on Advocate, Mr. Purbali Bora despite which the appellant avoided personal service of the summon on the false pretext that she did not stay at 73 Anand Lok, New Delhi.
10. It was, according to the respondent, curious that instead of returning to USA to submit to the jurisdiction of competent court at the place where both the petitioner and respondent have a house to reside, jobs to work and social roots and where Kush also normally resided, has friends and school, the appellant wife had persisted to stay in India and approach and seek legal redress. It was further stated that the proceedings initiated by the appellant on or about 28th August, 2008, with allegations and averments that were ex-facie false and exaggerated, were not maintainable in view of the proceedings before the Court in America and the order passed therein. It was also alleged that in terms of the protective custody warrant order issued on 9th September, 2008, by the Superior Court of California, County of Ventura, the appellant had been directed to appear before the US Courts which the appellant was evading to obey and that despite having information about the proceedings in the US Court she had obtained an ex-parte order without informing the respondent in advance. Page 28 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined
11. The respondent also enumerated the circumstances which according to him demonstrated that he is more suitable to get the custody of Master Kush in comparison to the appellant-mother of the child. The respondent husband accordingly prayed for dismissal of the petition filed by the appellant- wife and vacation of the ad-interim order dated 4th April, 2009 passed by the Guardian Court at Delhi." 8.9 Para 19 in the case of Ruchi Majoo (supra) also refers to the judgement in the case of Kuldip Nayar & Ors Vs. Union of India & Ors., reported in 2006 (7) SCC 1, where the expression of the word "ordinarily" is primarily directed not to the duration but to the purpose. Interpreting Sec.9 and its term "ordinary" "preceding the word residence" the Supreme Court in paras 13 and 14 held as under:
"13. Section 9 of the Guardian and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the Court to entertain a claim for grant of custody of a minor. While sub-Section (1) of Section
9 identifies the court competent to pass an order for the custody of the persons of the minor, sub-sections (2) & (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is, therefore, relevant for our purpose. It says :
"9. Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the Page 29 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides."
14. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9(1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:
"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."Page 30 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024
NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 8.10 We note that the Hon'ble Supreme Court observed that from a bare reading of Sec.9, the solitary test for determining the jurisdiction is the term "ordinary residence". However, the Hon'ble Supreme Court hastened to add that ordinarily residing at the given place is primarily a question of intention which inturn is a question of fact. It may be at best 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 any inquiry into the factual aspects of the controversy.
8.11 Perusal of the order impugned before us would indicate that this factual inquiry has not been undertaken by the Family Court. Even in the case of Shah Harichand (supra), though a Division Bench of this Court considered the question of the application in the facts where the ward was removed from the father's custody in this case, what needs to be noted is that the Division Bench observed that if there are two places Page 31 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined where it could be held that the minor was ordinarily residing the question would be one of convenience because the legislative test would be fulfilled. The question, however, cannot be decided on presumptive, legal or constructive custody but by an application of the statutory test of ordinary residence of the minor. This, according to the Division Bench would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances. Para 3 of the decision reads as under:
"3. Section 25(1), however, has categorically used the expression "the Court" which has been statutorily defined in Section 4(5)(a) to me an the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under Section 19(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. Therefore, the legislative the of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not eh Court where the father resides and with whom the minor must be deemed to have been in constructive custody. If the application is made immediately after the removal from the father's custody, the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly, if there are two places where it could be held that the Page 32 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined minor was ordinarily residing, the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumptive, legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor. This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances."
8.12 The question, therefore, that needs to be addressed by us is whether the Family Court in the facts of the case, though there was no dispute on the aspect of permanent address of the child being at Maharashtra, vis-a-vis the past residence of the child at Navsari, could have decided in favour of the father only on the ground of his past residence at Navsari before the death of the mother. We also note that the Trial Court would have, therefore, to reweigh its options in deciding the jurisdictional aspects of the application in accordance with the law set out by the Hon'ble Supreme Court in the case of Ruchi Mazoo (supra). The word of caution though without expressing any opinion on it, in light of the decision in the case of Salini (supra), the jurisdictional Court while taking a call on the jurisdictional issue also should bear in mind Page 33 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined that the welfare of the child is of paramount importance. 9 Considering all these issues, therefore, in First Appeal No. 1268 of 2023, the order dated 11.12.2022 passed by the Principal Judge, Navsari, in Application Exh.14 is quashed and set aside. The Family Court, Navsari, is directed to decide the issue of jurisdiction afresh in light of what we have stated hereinabove. He should keep in mind the provisions of Sec.9 and the term "ordinarily resides" as set out in various decisions which we have referred to. It may be noticed that the issue in the facts of the case would be a mixed question of fact and of law which will have to be considered by the Family Court.
We are told that the custody of the minor child Varad for the present is with the maternal grand-parents i.e. the appellants of First Appeal No. 1268 of 2023 and will continue to be with them till a decision in accordance with law is taken by the Family Court.
10 The appeal is allowed to the aforesaid extent. In Page 34 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined light of this order that we have passed in the First Appeal No. 1268 of 2023 learned counsel Mr.Paneri would not press First Appeal No. 4464 of 2023 and the same is accordingly disposed of, as not pressed.
We may clarify that these observations in the order that we have made will not influence the Family Court henceforth in case an application for interim custody is made by either parties. It is clarified that before dwelling into any other issues, the Family Court shall decide the issue of jurisdiction. The application for jurisdiction under Exh.14 shall be decided by the Family Court as expeditiously as possible, preferably within six months from the date of receipt of the certified copy of this order.
In view of disposal of the main appeals, connected civil applications also stands disposed of, accordingly.
(BIREN VAISHNAV, J) (MAULIK J.SHELAT,J) BIMAL Page 35 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024