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Karnataka High Court

Samik Rana vs Ms Gracy Rocky Dias on 10 March, 2017

Bench: B.S Patil, B.V.Nagarathna

                                                MFA.3960/2016
                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF MARCH, 2017

                           PRESENT

             THE HON'BLE MR.JUSTICE B.S.PATIL

                                &

        THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA

                     M.F.A.No.3960/2016

BETWEEN

1.    SAMIK RANA,
      S/O SITAL CHANDRA RANA,
      FLAT NO.003, SLV COMFORTS APARTMENTS,
      KOTHANURU DINEE MAIN ROAD,
      K.L.V. LAYOUT, NEAR B.K.CIRCLE,
      J.P.NAGAR 8TH PHASE,
      BANGALORE SOUTH,
      BANGALORE - 560 076.

2.    ANGELINA RANA @ RISHIKA,
      D/O SAMIK RANA,
      AGED ABOUT 5 YEARS,
      PLOT NO. 7, 9TH CROSS, SY.NO. 104/1,
      NEAR GULMOHAR PARK,
      BEHIND MUKTANGAN VIDYALAYA,
      BHAGYANAGAR,
      AANGOL,
      BELGAUM - 590 006.                   ... APPELLANTS

(By Sri B.M.HALA SWAMY, ADV.)


AND

Ms. GRACY ROCKY DIAS,
W/O Mr. CHARLE VIEGAS,
PLOT NO.7, 9TH CROSS,
SY.NO. 104/1, NEAR GULMOHAR PARK,
BEHIND MUKTANGAN VIDYALAYA,
                                                MFA.3960/2016
                              2



BHAGYANAGAR,
AANGOL,
BELGAUM - 590 006.                       ... RESPONDENT


      THIS MFA IS FILED U/S.47(B) OF GUARDIANS AND WARDS
ACT AGAINST THE ORDER DATED 22.04.2016 PASSED IN G&WC
NO.116/16 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY
COURT, BENGALURU, RETURNING THE PETITION TO THE
PETITIONER AND DIRECTING THE PETITIONER TO SUBMIT THE
PETITION BEFORE PROPER JURISDICTIONAL COURT.


      THIS APPEAL COMING ON FOR ORDERS             THIS   DAY,
B.V.NAGARATHNA, J., DELIVERED THE FOLLOWING:


                         JUDGMENT

1. Though this Miscellaneous First Appeal is listed for consideration of I.A.1/2017 pertaining to interim custody of minor child - appellant No.2, Angelina Rana @ Rishika, we have nevertheless heard learned counsel for the appellant on the merits of the appeal.

2. At the outset, we note that this Court had issued notice to the respondent, who was served on 22.08.2016. Thereafter, on 15.11.2016, delay in filing the appeal was condoned and subsequently, on 14.12.2016, the appeal was admitted. Even prior to that, on 29.07.2016, this Court had directed the 1st appellant to deposit a sum of `50,000/- and out of the same, MFA.3960/2016 3 the respondent was permitted to withdraw a sum of `10,000/-, so as to enable the respondent to utilize the said amount for the purpose of her travel from Belagavi to Bengaluru. However, we find that the respondent has not appeared either in person or through counsel till date.

3. Learned counsel for the appellants has submitted that by the impugned order dated 22.04.2016, the petition filed by the 1st appellant under Sections 7(a) and 25 of Guardians and Wards Act, 1890 has been ordered to be returned for the reason that the 2nd appellant - minor child is at Belagavi and therefore, the Family Court at Bengaluru had no territorial jurisdiction to entertain the petition. He draws our attention to the impugned order and submits that the Family Court was not right in passing an order for return of the petition for the purpose of re- presenting the same before the proper jurisdictional Court. Learned counsel has drawn our attention to Section 9 of the Guardians and Wards Act, 1890 to contend that if the application is with respect of guardianship of the person of the minor, it can be made before the District Court having jurisdiction at the place where the minor ordinarily resides. He would submit that in the instant case, the 1st appellant and the MFA.3960/2016 4 respondent, who is the mother of the 2nd appellant - minor child, ordinarily resides at Bengaluru and that for a short while, the respondent along with the 2nd appellant - minor child had visited Belagavi and thereafter, the respondent did not return to Bengaluru, but that would not imply that the 2nd appellant - minor child is not ordinarily residing in Bengaluru. He contended that the expression 'ordinarily resides' must be given a meaning which would serve the purpose for which it is intended and that in the instant case, the Family Court, Bengaluru, could not have directed that the petition had to be filed before the jurisdictional Court at Belagavi. In support of his submission, learned counsel for the appellant placed reliance on the judgment of the Division Bench of this Court in the case of ABRAHAM G.KARIMPANAL & OTHERS Vs. NIL reported in ILR 2004 KAR 1840. Learned counsel points out that in the said case, at paragraph 12, it has been categorically held that the words 'ordinarily resides' in sub-section (i) of Section 9 of the Act would mean more than a temporary residence even though the period of such temporary residence may be considerable. He would submit that when the parents of the minor child resided together at Bengaluru and for a temporary period, the respondent along with the minor child left for Belagavi, it would MFA.3960/2016 5 not imply that the permanent residence of the 2nd appellant - minor child is Belagavi or that the minor child was ordinary resident of Belagavi and not Bengaluru.

4. Having heard the learned counsel for the appellants and on perusal of the materials on record including the petition averments made in paragraph 5, it is noted that the minor child was living with the 1st appellant and the respondent at Bengaluru and was studying at Little Millennium School, J.P.Nagar 8th Phase, Bengaluru, during the academic year 2013-14; that it was only in the middle of the year 2014, for a short period, the respondent along with the minor child were to visit Belagavi, but due to certain developments, respondent has not returned to Bengaluru along with the minor child. It is under the said circumstances that the petition was filed by the 1st appellant herein before the Family Court, Bengaluru.

5. Having regard to the nature of the expression 'ordinarily resides' used in Section 9(1) of the Guardians and Wards Act, 1890 and keeping in mind the purpose for which the said expression has been used, we find that the interpretation to be given to the said expression must be in consonance with the intent and purport of the legislation made by the Parliament. MFA.3960/2016 6 The said expression cannot be interpreted in a technical manner or in a narrow, pedantic way, so as to defeat the meaning of the said expression and also the purpose for which it has been used in the said manner but in a legal sense so as to advance the intention of the Parliament in using the said expression. The Division Bench of this Court in the aforementioned case at paragraph 12 has observed as under:

"The term 'residence' is an elastic word of which an exhaustive definition cannot be given; it is differently construed according to the purpose for which enquiry is made into the meaning of the term; the sense in which it should be used is controlled by reference to the object. 'Residence' means dwelling in a place for some continuous time. The words 'ordinarily resides' in sub-section (i) of Section 9 of the Act mean more than a temporary residence even though the period of such temporary residence may be considerable. Residence may be transitory or permanent. The former is residence simpliciter or causal residence. The latter connotes the place where for the practical purposes a person is expected to be ordinarily found. That is the place where he is said to ordinarily reside. Generally speaking, residence is a matter of fact, and not a matter of presumption."

6. In view of the aforesaid observations, in the facts and circumstances of the case, we are of the view that the 2nd appellant - minor child ordinarily resides at Bengaluru and that at the time of filing of petition, for a temporary period was residing at Belagavi; nevertheless the Family Court, Bengaluru had territorial jurisdiction to entertain the petition. In the circumstances, we find that the Family Court was not right in holding that it had no jurisdiction to entertain the petitioner and thereby ordering return of the same. Hence, the impugned order passed by the Family Court, Bengaluru is set aside. The petition filed by the appellants in G & WC.No.116/2016 is restored on the file of the Family Court, Bengaluru. This appeal is allowed to the aforesaid extent.

7. As the petition filed by the appellant is now restored on the file of the Family Court, Bengaluru, we are of the view that the 1st appellant herein is entitled to prefer an application seeking the prayers made in I.A.1/2017 herein before the Family Court, Bengaluru. If such an application is made, the Family Court to consider the same in accordance with law and also to dispose of the petition in accordance with law and in an expeditious manner.

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8. Registry is directed to refund the amount in deposit before this Court to the 1st appellant herein.

Sd/-

JUDGE Sd/-

JUDGE PKS