Madhya Pradesh High Court
Vinayak Rao Jadhav And Ors. vs Shweta Vinayak Rao Jadhav on 17 May, 1996
Equivalent citations: 1997(1)MPLJ27
ORDER T.S. Doabia, J.
1. What would be the "ordinary residence" of a three year old child-a male child in this case? Can a minor of this tender age exhibit his "intention" to reside at a particular place or express a desire as to where he would like to reside. One way to look at this question would be to link his residence with the natural guardian. The minor in this case is not residing with father but with parents of the father. Mother has custody of a female child, she is seeking custody of her minor son. A petition has been preferred under section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act). An objection has been taken to the maintainability of the petition. It is pleaded that courts at Gwalior have no jurisdiction and the petition should be filed at Delhi where the minor is said to be staying with his grand parents. The trial Court found no merit in the objection so taken by the father and grand parents of the minor. Dissatisfied with the same, they have preferred this petition.
2. Some other facts which are relevant for the purposes of this petition be also noticed.
3. The respondent mother is having custody of a female child of two years. She has also taken proceeding against her husband under sections 498A and 506B of the Indian Penal Code. The father is residing at Dewas in the State of Madhya Pradesh. The grand parents as noticed above, are residing at New Delhi. To repeat minor is said to be at present with petitioner 2 and 3, that is the grand parents.
4. The question as to where a petition for seeking custody of a minor would lie is to be determined by taking note of section 9 of the Act. For facility of reference this section be noticed. It 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.
(2) If the application is with respect to 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 court having jurisdiction in a place where he has property.
(3) 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 or conveniently by any other district court having jurisdiction".
A perusal of section 9(1) of the Act makes it apparent that it is the ordinary place of residence of minor which determines the jurisdiction of the Court for entertaining an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the petition. The fact that the minor is found actually residing at a place when the application for the guardianship of minor is made does not determine the jurisdiction of the Court. There can again be no dispute that the term "residence" is an elastic word of which an exhaustive definition cannot be given. It is to be construed differently as per the purpose for which an enquiry is made. Section 9(1) uses the words "Ordinarily resides" and this means more than a temporary residence. These words indicate a regular, normal and settled home and not a place where the minor is on account of compulsion. The concept of 'residence' has been explained and taken note of in Corpus Juris Secundum Vol. 77, The relevant paragraphs in this regard be noticed :
"It has been said that the word "residence" indicates permanency of occupation or abode, as distinct from lodging or boarding, or temporary occupation, and the position has been taken that a permanent abode is necessary to constitute a residence, and that a residence must be fixed and permanent abode or dwelling place for the time being, and not a mere temporary locality of existence." Pages 291, 292.
"The word "residence" implies involves or carries with it the idea of a place of abode, a place of living, or a home and it has been said that it is impossible to consider the term and disassociate it from the elements of home and habitation for the residence of a man having a family which he maintains is, prima facie, where the family dwells and usually but not necessarily it is the place where his wife and children reside; and, save in exceptional cases, is the place where the family live or have their home." Pages 292, 293.
"Two fundamental elements are essential to erate a residence, and these elements are :
(1) Bodily presence in a place.
(2) The intention of remaining in that place. Residence is thus made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Neither bodily presence alone nor intention alone will suffice to create a residence. There must be a combination and concurrence of these elements and when they occur, and at the very moment they occur, a residence is created." Page 295.
"One of the elements of residence is bodily presence in a place, that is actual bodily presence, bodily presence as an inhabitant in a given place, personal presence at some place of abode, personal presence in a fixed and permanent abode, or permanency of occupation as distinct from lodging, boarding, or temporary occupation." Page 296.
"While bodily presence is regarded as one of the elements of residence, the length of the period of bodily presence, however short, is of no consequence, provided the concurring intent is established by other evidence, for the question of residence, in its legal signification, is not necessarily dependent on the length of time spent in a particular place, for any time, however short, when coupled with an intent, will be sufficient." Page 297.
"The intention which is regarded as one of the elements of residence is variously described, and it has been said that it varies with context. It may be the intention of remaining in a place the intention to remain or live at a place permanently or for an indefinite time at least. It may be the intention of establishing residence or the intention of making the place a home." Page 298.
"Residence" is also defined to mean the principal domestic establishment of an individual, and it has been said that the best definition of the term is that to be deduced from the Roman law: that a man's residence is the place where his family dwells, or which he makes the chief seat of his affairs and interests." Page 301.
"It has been said that the word "resident" is generally understood to mean one having more than a mere physical presence, and that the transient visit of a person for a time to a place does not make him a resident while there. It has also been said that the term imports a fixed abode for the time being, as contra-distinguished from a place of temporary abode, and that in order to entitle one to the character of a resident there must be a settled fixed abode, and an intention to remain permanently." Page 306.
5. In the present case, the minor in question is bodily present at Delhi. As to whether he has the intention to remain there is something which is highly doubtful. Minor is in Delhi, not because of his free volition but because he has been put there by his father. The father has abdicated his rights to guardianship regarding his son. Regarding his daughter he has already given up his claim. She is with her mother. Again, Delhi is not the place where the family is normally supposed to reside. It is not the family residence. Minors residence would be where his family is. Stay with grand parents would not be stay with the family. Family residence in this case would be the place where the mother and sister of the minor is.
6. Some judicial precedents be noticed.
7. In Rabindra Sharan Vaish v. Kusum Agrawal, 1987 (1) Cur.Civ. Cases 397 (M.P.), the father was residing at Bhopal. The mother removed the child permanently to Lucknow forsaking her matrimonial home. It was held that Lucknow is the place where the minor ordinarily resides. Accordingly, it was held that Lucknow courts and not the Bhopal Courts would have jurisdiction to entertain the dispute with regard to guardianship of the minor. Reference may be made to the decision given by the Madras High Court reported as R. Geetha v. A. T. Rajan, 1991 (1) DMC 139. As to what meaning is to be given to the words "ordinarily resided" would be found elaborated in para 5 and this reads as under :
"5. The words "ordinarily resides" 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 moving the minor from place to place and consequently from one jurisdiction to another. Whether the minor was ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. It may be that ordinarily the paternal family house may be taken to be the place of ordinary residence, but the words "ordinarily resides" arc incapable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made and the absence of animus revertendi would normally be relevant, but in the case of minors, it is difficult to impute any such intention to them. It has also to be borne in mind that temporary residence or residences by compulsion however long cannot be treated as ordinary residences at that place. Bearing these in mind, it is necessary to ascertain from the available materials as to when the minor ordinarily resided for purposes of the Act."
In the present case, the mother has submitted that she was given a beating and was thrown out of the maternal home. She was thus deprived of the company of the male child but the female child was allowed to remain with her. The minor has further been shifted to Delhi and is staying with the grand parents. The grand parents cannot be treated as natural guardians. Under the Hindu Law, the father is the natural guardian of the children. Where a man has no permanent abode, minor's residence would be where the natural guardian resides.
8. In the present case, the custody of one of the minor children is with the mother. But, she has been deprived of the other male child by shifting the child to New Delhi. Under the circumstances, it would be presumed that mother was having the custody and she has been deprived of this custody. An inference has to be drawn that the minor was ordinarily residing with the mother and, therefore, wherever the mother would reside, that would be minor's residence. To repeat residence of a minor who is unable to take any conscious decision would be dependant upon the residence of natural guardian. The father has given up its right and has left the minor with his parents. This abdication of right would naturally lead to a conclusion that the residence of the minor should be the same place, where mother is residing. Thus, petition filed by the mother seeking guardianship of her minor son has been rightly preferred at Gwalior. The presumption would be that the minor would also reside at that place. It is accordingly, held that the decision given by the Court below holding that the Courts at Gwalior have the jurisdiction cannot be taken exception to. The trial court shall proceed expeditiously in the matter and would conclude the trial of this case within six months from the date of communication of this order.
This petition is found to be without merit and is dismissed.