Uttarakhand High Court
Vinod Goyal vs Sarita Goyal on 24 November, 2005
Equivalent citations: AIR2006UTR36, II(2005)DMC849, AIR 2006 UTTARAKHAND 36, 2006 (5) ALL LJ 727, 2006 (5) AKAR (NOC) 662 (UTR), 2007 AIHC NOC 5, (2005) 2 DMC 849
Author: Prafullu C. Pant
Bench: P.C. Verma, Prafulla C. Pant
JUDGMENT Prafullu C. Pant, J.
1. These two appeals, preferred under Section 19 of the Family Courts Act, 1984, are directed against order dated 22.11.2004 passed by learned Principal Judge, Family Court, Haridwar in Misc. Case No. 19 of 2004, Mrs. Sarita v. Vinod Goijal, whereby the Judge has rejected the objection raised by the appellant-husband challenging jurisdiction of the Family Court to entertain the application of the plaintiff-wife under the Guardians and Wards Act, 1890, and directed the appellant-husband to produce the child before the Court.
2. Brief facts of the case are that respondent-wife has filed an application under Sections 10 and 25 of the Guardians and Wards Act, 1890, seeking custody of minor child Kannu from the custody of the appellant-husband. The said application was registered as Case No. 19 of 2004, Smt. Sarita v. Vinod Goyal. As per the said application Sarita got married to Vinod Goyal on 19.4.2000 and out of their wedlock Master Kannu got born on 24.2.2001. It is alleged in the application that respondent was turned out of her matrimonial house in Saharanpur and Master Kannu is forciby kept in his custody by the appellant at Saharanpur. It is further alleged that at present the respondent is residing with her parents at Haridwar. The appellant in his objection has stated that mother of Master Kannu has herself left the matrimonial house at her own will and his son is living and studying in Saharanpur. As such, the application filed by the respondent is beyond jurisdiction of the Family Court at Haridwar and is liable to be dismissed. Flowever, learned Principal Judge, Family Court rejected objection as to its jurisdiction and observed vide its order dated 22.11.2004 that as per the Hindu Minority and Guardianship Act, 1956, guardianship of a child below five years of age ordinarily rests with the mother of the minor and, as such, only by keeping the minor child below five years in his custody forcibly it cannot be said that minor is ordinarily residing with the appellant-father. In an another application dated 19.3.2004 filed by the respondent, learned Principal Judge, Family Court, Haridwar vide order dated 22.11.2004 directed the appellant to produce the minor in the Court. Aggrieved by said orders, these appeals have been filed alleging the orders to be illegal and against the provisions of law.
3. A counter affidavit has been filed on behalf of the respondent-wife in which it has been admitted that respondent got married to appellant on 19.4.2000 and it is also admitted that a male child was born out of their wedlock on 24.2.2001. It is alleged in the counter affidavit that the relations with the appellant and respondent did not remain cordial due to alleged bad behaviour on the part of family members of the appellant, and respondent had to leave her matrimonial house for no fault on her part. It is further stated in the counter affidavit that an F.I.R. was also lodged against the appellant at P.S. Kotwali, Saharanpur in case Crime No. 382 of 2003. It is further alleged that the answering respondent is deprived of the custody of her minor son.
4. We heard learned Counsel for the parties and perused the affidavit and counter-affidavit along with the annexures annexed thereto.
5. Shrot question for consideration before this Court is, whether the impugned order suffers from any illegality or not?
6. The Clause (1) of Section 9 of the Guardians and Wards Act, 1890, 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."
7. Learned Counsel for the appellant drew attention of this Court to the principle of law contained in Harshadbhai Zinabhai Desai v. Bhavnaben Harshadbhai Desai, , wherein it has been held that the question of ordinary residence of a minor is a matter of fact to be ascertained from the evidence on record. The ordinary residence of a minor cannot be determined on the basis of presumption or there cannot be a hard and fast rule that the residence of a natural guardian or the residence of the mother of a minor should be treated as the ordinary residence of the minor. In view of above; facts, it is argued that the jurisdiction under the Guardians and Wards Act, 1890 will be only with the Court at Saharanpur and not the Court at Haridwar.
8. On behalf of the appellant our attention was further drawn to the case of Manoj Agrawat and Anr. v. Sushma Agarwal and Anr. reported in AIR 2005 Uttaranchal 9, wherein while deciding a similar controversy it has been held by this Court that the jurisdiction to try the case lies with the Court having territorial jurisdiction over the place where minor ordinarily resides as per the plaint case. In the present case admittedly the child is in the custody of the appellant who lives in Saharanpur. In our opinion, since admittedly, the minor in the present case, is living at Saharanpur as such it cannot be said that he ordinarily resides at Haridwar. Had it been a case where the minor was going to and living off and on in Haridwar, in that case we would have agreed to the suggestion that the minor be treated to be residing ordinarily at Haridwar. But it is not the case here.
9. Learned Counsel for the respondent drew our attention to the principle of law contained in Smt. Usha Kumari v. Principal Judge, Family Court and Ors. , and raised an objection that since the impugned order is an interim order, as such, appeal against said order is not maintainable under Section 19 of the Family Courts Act, 1984. It is true that appeal under Section 19 of the said Act is not maintainable against the interim orders passed by the Family Court. However, the impugned order dated 22,11.2004 passed on application challenging the jurisdiction of the Family Court at Harid war cannot be said to be an interim order for the reason that had objection of the Husband as to the territorial jurisdiction been upheld and decided in favour of the appellant by the Trial Court, the petition under Section 10 read with Section 25 of the Guardians and Wards Act, 1890 would have been finally disposed of by the said Court. And rejection of the objection raised through application on the point of jurisdiction, as such, is a case decided. As such, the impugned order cannot be said to have the character of an interim order.
10. In another application dated 19.3.2004 field by the respondent-wife before the Family Court, it has been prayed that on every date appellant should produce the child in the Court. The family members of the appellant do not allow her to meet her son and she be permitted to meet the minor in the Court. Learned Principal Judge, Family Court, Hardiwar vide order dated 22.11.2004 directed the appellant to produce the minor in the Court considering the prayer of the mother holding that she is natural guardian of the minor and by also holding that the minor had never been brought to the Court earlier by the appellant. The said order could have been passed only if the Family Court, Haridwar had the jurisdiction to try the case.
11. In the circumstances and in view of the above discussion, this Court is of the view that the Family Court, Haridwar had no jurisdiction to try the case as the minor ordinarily does not reside within its territorial jurisdiction. The appeals deserve to be allowed and both the appeals are accordingly allowed. The impugned orders are set aside. The application under Section 10 read with Section 25 of Guardians and Wards Act, 1890 before Principal Judge, Family Court, Haridwar stands rejected. No order as to costs.