Delhi District Court
Mr. Lt. Col. L. Nott vs Ms. Sonia And Ors on 5 March, 2007
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IN THE COURT OF SHRI RAKESH KUMAR SHARMA,
GUARDIAN JUDGE : DELHI.
Guardian Petition No. 117/2006
Mr. Lt. Col. L. Nott ...PETITIONER
V e r s u s
Ms. Sonia and Ors. ...RESPONDENTS
ORDER
1. By this order I shall dispose of two applications, (1) U/O 7 Rule 11 CPC filed by the respondents for dismissal of the petition and (2) U/S 94 r/w Order 39 Rules 1 and 2 CPC r/w Section 151 CPC filed by the petitioner seeking an order to the respondents to handover the custody of the child Master Kevin to the petitioner till disposal of the main petition.
2. Counsel for respondents has relied upon the following authorities in support of his contentions:-
(a) AIR 1956 Allahabad 328 titled as "Kamla Vs. Bhanu Mal";
(b) AIR 1960 Punjab 372 titled as "Harbans Singh Vs. Vidyawanti";
(c) (2005) 5 Supreme Court cases 359 titled as "Rajesh K. Gupta Vs. Ram Gopal Agarwala". 2
3. On the other hand, counsel for petitioner has relied upon the following authorities in support of his contentions:-
(a) 97 (2002) DLT 33 titled as "Shraddha Nath Vs. Manu Nath";
(b) 105 (2003) DLT 380 titled as "Sanjeev Sangwan Vs. Sangeeta Sangwan";
(c) 1983 Rajdhani Law Reporter 130 titled as "Deepak Gupta Vs. H.P. Sharma",
(d) 1989 Rajdhani Law Reporter (Note) 169 titled as "Lekhraj Kukreja Vs. Rayman";
(e) 1975 Rajdhani Law Reporter (Note) 58 titled as "Mangal Devi Vs. Ran Bahadur";
(f) 1975 Rajdhani Law Reporter 29 titled as "Om Prakash Vs. Pushpa";
(g) 89 (2001) DLT 644 titled as "Pratidhi Vs. NCT of Delhi & Ors.";
4. I have heard counsels for parties and I have also gone through the record as well as the authorities relied upon by them.
5. It is an admitted case between the parties that the petitioner was married to respondent No. 1 on 27.12.1992 according to Sikh rites, that the petitioner is a Christian by religion and respondents are Sikh by religion and the child Master Kevin was born from the wedlock on 11.04.1995. 3
6. I shall take up the application U/O 7 Rule 11 CPC filed by the respondents first, for the reason that in case this application is allowed, the petition is liable to be dismissed for want of jurisdiction.
7. It is stated in the application that there is no specific clause in the petition mentioning when and where the cause of action for the purpose of the present petition has arisen which is the specific requirement of the provisions of CPC. This court has no jurisdiction to entertain the present petition as in the present case, Master Kevin has been admitted in Sanskar Public School, Jaipur and he is residing in Jaipur with the respondents.
8. As far as the contention of the respondents that there is no specific para showing when and where the cause of action for the present petition arose is concerned, as per Order 7 Rule 1 (e) CPC all that is required to be stated in the plaint is "the facts constituting the cause of action and when it arose". All the necessary facts for filing the present petition have been stated in the petition. It is specifically stated in the petition that the child Kevin has been removed from the custody of the petitioner by the respondents in March, 2006. It is not necessary that a separate para stating where and when the cause of action arose for the petition is to be inserted in the petition. Hence, the contention of the respondent in this regard is rejected.
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9. The other contention in the application is that the child is residing in Jaipur with the respondents and is studying in a school at Jaipur. As per Section 9 of the Guardian & Wards Act, a petition under the Act can be filed in the District Court having jurisdiction in the place where the minor oridnarily resides. It is nowhere the case of the respondents in the application that the child is an ordinary resident of Jaipur or even that the child is not an ordinary resident of Delhi.
10. On the contrary, it is an admitted case between the parties that the petitioner was transferred to Delhi in November, 2004 and that he alongwith respondent No. 1 started living at Delhi. It is also admitted that the child was admitted in Class 4th in Army Public School Dhaula Kuan, Delhi at that time and that the respondent No. 1 left for Jaipur without the child in March, 2005. The petitioner has placed on record a number of documents including the report card of the child for the academic years 2004-2005 and 2005-2006 which clearly show that the child studied at Delhi for both the years. The petitioner has also placed on record two separate certificates issued by Swimming Club, Rajputana Rifles Regimental Centre, Delhi Cantt. and Drona Shooting Club, Rajputana Rifles Regimental Centre, Delhi Cantt., Delhi stating that the child is a member of Swimming Club and Shooting Club since April, 2005 and has displayed good results. Both the certificates are dated 23.05.2006. All these documents 5 clearly show that since November, 2004 till March, 2006 the child was studying in Delhi.
11. On the other hand, in the entire written statement no date when the child was brought to Jaipur has been given by the respondents. The respondents have placed on record one certificate issued by Sanskar Public School, Jaipur which states that the child joined the school only on 05.07.2006.
12. It is clear from the above discussion that from November, 2004 to March, 2006 the child was in Delhi and he was merely visiting his mother (respondent No. 1) during his vacations obviously for a temporary period. Hence, the child is held to be an ordinary resident of Delhi on the date of filing of the petition.
13. I have carefully perused the authorities relied upon by the respondent. There cannot be any doubt about the principles of law laid down in the authorities but it is a settled law that each case has to be decided according to its own peculiar facts. I am of the view that the facts in the present case are materially different from those in the authorities. In the authority AIR 1960 Punjab 372 relied upon by counsel for respondents themselves, it is held that " It is not disputed that a question whether or not a minor ordinarily resides within the jurisdiction of a court has to be decided on the facts and circumstances of each case". In the said authority, the question of jurisdiction was decided after the evidence was led by the 6 parties. In the authority 1956 Allahabad 328 relied upon by the counsel for respondents themselves, the court has relied upon an authority titled as Ram Sarup Vs. Chimman Lal, AIR 1952 Allahabad 79 wherein it was held that " .....When a person leaves the place where he has been residing as permanent resident for good i.e with no intention to come back and goes to some other placed to live there, the former place where he used to live, ceases to be his ordinary place of residence and the latter place becomes his ordinary place of residence. The question of residence is largely a question of intention. In the case of minors no question of intention arises." In any case, in the said authority it was held that " both the courts will have equal jurisdiction". In any case, in the said case, the dispute was not between the parents of the child as one of the parent had expired. (2005) 5 Supreme Court Cases 359 is not on Section 9 of the Guardian & Wards Act. Hence, with great respect, none of the authorities relied upon by the counsel for respondents is applicable to the facts and circumstances of the present case.
14. On the other hand, it has been held in 105 (2003) DLT 380 which is an authority of our own High Court and is, therefore, binding on me: " It is the bounden duty of every parent, and also of the court, that when disputes pertaining to children is brought before it, it must ensure that the welfare of the children and its predominant concern is adequately safeguarded. The custody of minors is not a proprietary right of 7 the parents but is instead a discharge of their pious obligation to ensure the best for their progeny. The court, therefore, should not needlessly find a source of its jurisdiction in statutes. There is no enactment which bars the exercise of powers in disputes concerning the custody and welfare of the children. The court should unhesitatingly pass orders that would ensure the welfare of the minors."(Underlining by me). I am of the view that the authority is squarely applicable in the facts of the present case.
15. In view of the above discussion, it is held that the child is an ordinary resident of Delhi and thus, contention of respondents in this regard is also rejected.
16. In view of the above discussion, I am of the view that the application U/O 7 Rule 11 CPC filed by the respondents is absolutely frivolous and vexatious and the same is, therefore, dismissed with costs of Rs. 5,000/-.
17. Coming to the application filed by the petitioner, it is a settled law that in all proceedings under the Guardian & Wards Act, welfare of the child is the paramount consideration and rights of the parties are only secondary.
18. There are allegations and counter-allegations made by the parties mostly against each other and not in relation to the child which cannot be decided at this stage merely on the pleadings of the parties and they require evidence for their decision.
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19. The respondents have themselves stated in the written statement that respondent No. 1 (the mother of the child) is completely confined to the bed for the last one year as she is suffering from an incurable disease. It is clear from the pleadings of the respondents themselves that respondent No. 1 herself is dependent upon her parents and that she is unable to take care of herself. Hence, she cannot be expected to take care of the child. It is nowhere the case of the respondents that the petitioner is unable to look after the interest and welfare of the child. On the contrary, as noted above, the child studied at Delhi for about two years under the care and custody of the petitioner alone. Hence, there cannot be any doubt that between the petitioner and respondent No. 1, the petitioner is more suited (rather he alone is suited) to look after the child properly.
20. It is contended on behalf of the respondents that respondent No.1 has her parents living with her (who are respondents No. 2 and 3 in the present petition) who can look after the child. I am of the view that this fact is irrelevant. I am of the view that as long as the parents are alive, they alone have the right to have the custody of the child and no one else has any such right. As held by me above, between the parents of the child, the petitioner is the best suited to look after the welfare of the child. Even otherwise, if respondent No. 1 has 9 her parents to look after the child, the petitioner also has his mother and brother to do the same. Hence, the contention has no force and the same is rejected.
21. The child was also interviewed in the chamber. He appeared to be extremely attached to his mother but he was ready to talk to his father. From the examination of the child, it is clear that he has nothing substantial against his father (the petitioner). In any case, the child even at present is less than 12 years of age. It has been held in 1983 Rajdhani Law Reporter 130 relied upon by counsel for petitioner that " I am of the opinion that the minor though aged 14 years is not fit to form an intelligent preference which may be considered in deciding his welfare". Hence, the child Master Kevin who is not even of 12 years of age as on today, cannot be expected to form an intelligent preference.
22. There is another aspect of the matter. As noted above, it is admitted between the parties that the petitioner is a Christian and the respondents are Sikh by religion and that the child was baptised and made a follower of Christianity. Hence, only the petitioner who is a Christian by religion can be expected to educate the child regarding the tenets of Christianity and this cannot be expected from respondent No. 1 who is admittedly a Sikh by religion.
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23. In view of the above discussion, I have no hesitation in holding that the welfare of the child is with the petitioner. Hence, the application of the petitioner is allowed. The respondents are directed to handover the custody of the child Master Kevin to the petitioner within a month from today whereafter the child shall remain with the petitioner till the disposal of the petition or till he attains the majority whichever is earlier.
Announced in the open court on 05.03.2007.
(RAKESH KUMAR SHARMA) GUARDIAN JUDGE : DELHI.