Punjab-Haryana High Court
Ramesh Bhardwaj vs Ram Saran Dass on 30 March, 1998
Equivalent citations: (1998)120PLR35, 1999 A I H C 1045, (1998) 2 RECCIVR 109, (1998) 3 ICC 589, (1998) 2 MARRILJ 70, (1998) 120 PUN LR 35, (1999) 1 CURCC 639
JUDGMENT Sat Pal, J.
1. This petition has been directed against the order dated 9th February, 1998, passed by the Senior Sub Judge, Chandigarh. By this order, the learned trial Court has dismissed the objection of the petitioner (who is respondent before the learned trial court) that the court has got no jurisdiction to try the petition. Notice of this petition was issued to the respondent.
2. Briefly stated the facts of the case are that Ram Saran Dass (who is the respondent-herein and is the father of the minors) was married with Renu daughter of Dharampal and from their wedlock, son namely Ritan and daughter namely Ritika were born on 25.1.1992 and 6.9.1994 respectively. The respondent with his members of his family was residing at H.No. 2849, Sector 40-C, Chandigarh. The wife of the respondent namely Renu died on 28.6.1996. The brother of the said Renu namely Ramesh Bhardwaj (petitioner herein) lodged an FIR in Police Station, Sector 39, Chandigarh that death of said Renu was not natural death and thereafter the respondent was arrested by the Chandigarh Police and a case was registered against him under Section 304-B IPC.
3. The petitioner filed Writ Petition No. 890 of 1996 in this case for the custody of the minor children to the petitioner on the ground that he was apprehending danger to the minor at the hands of mother, father and brother of the respondent. In the proceedings of the said writ petition, the parents of the respondent handed over the custody of minor children to the petitioner and stated that they were scared that they might not be involved on some criminal cases. Thereafter, the respondent was released on bail from jail on 29.11.1996 and after his release filed Cr.W.P. No. 1706 of 1996 for the custody of the children. The said writ petition was, however, dismissed with the observation that the petitioner (respondent in this petition) might avail of the remedy in the Civil Court under the provisions of the Guardian and Wards Act (hereinafter referred to as the Act). Thereafter, the respondent filed an application under Section 25 of the Act for the custody of the said minors.
4. During the pendency of the application filed by the respondent under Section 25 of the Act, the petitioner took a preliminary objection in the written statement that the Court had no jurisdiction to try the case and this objection has been dismissed by the learned trial Court. Against the order dismissing the said objection of the petitioner, the present petition has been filed.
5. Mr. Bhalla learned counsel appearing on behalf of the petitioner drew my attention to Section 4(5)(b) of the Act and submitted that under the said provisions, in any matter relating to the person of a ward, the District Court having jurisdiction is the place where the ward for the time being ordinarily resides. He submitted that after the minor children were handed over to the petitioner in the High Court on 28.8.1996 in the proceedings in Cr.W.P. No. 890 of 1996, the petitioner took them to his place of residence at Nabha, District Patiala and minors had been living at that place till today. He, therefore, contended that since on the date of filing of the application under Section 25 of the Act, the minors were staying at Nabha, District Patiala, the Courts of District Patiala, only have the jurisdiction to entertain the said application and Courts at Chandigarh had no jurisdiction to entertain and try this application. In support of his submission, the learned counsel placed reliance on Division Bench Judgment of Saurashtra High Court in Bai Shri Arun Kumari v. Jhalla Harpal Singh, A.I.R 1954 Saurashtra 152 and a judgment of this Court in Harbans Singh v. Vidyawati, A.I.R. 1960 Punjab 372.
6. The learned counsel further submitted that it is not the place of residence of the natural guardian that gives the jurisdiction to the Court under Section 9(1) of the Act but it is the place of ordinary residence of the minor which gives jurisdiction to the Court. In support of this submission the learned counsel placed reliance on a judgment of the Andhra Pradesh High Court in Harihar Parshad Jaiswal v. Suresh Jaiswal, A.I.R. 1978 Andhra Pradesh 13.
7. Mr. Salar, learned counsel appearing on behalf of the respondent, however, submitted that at the time of death of their mother, the minors were admittedly residing at Chandigarh. He submitted that the minors were taken by the respondent from Chandigarh to Nabha when the petitioner was in custody and immediately after the petitioner was released on bail, he filed criminal writ petition No. 1706 of 1996 for the custody of the minor children, in this Court and after the petitioner was " relegated to the Civil Court by this Court, in the said writ petition, he filed the present application under Section 25 of the Act. He, therefore, contended that once the application has been filed shortly after the minors were removed from Chandigarh when the petitioner was in a position to file the application, the place where the minors are deemed to be residing, will be Chandigarh and not Nabha. In support of this submission, the learned counsel placed reliance on a judgment of this Court in Smt. Kamlesh v. Ram Lal, (1971)73 P.L.R. 221, a judgment of Orissa High Court in Konduparthi Venkateswrlu and Ors. v. Rama Varapu Viroja Nandan and Ors., A.I.R. 1989 Orissa 151, a judgment of the Kerala High Court in Sarda Nayar v. Vayankan Amma and Ors., A.I.R. 1957 Kerala 158 and a judgment of this Court in Mubark Shah Khan v. Mussomat Wajeh ul-Nissa, (1902)3 P.L.R. 194.
8. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. The point to be decided in the present case is with regard to true import and meaning of the expression "where the minor ordinarily resides" under Section 9(1) of the Act. In the case of Konduparthi Venkateswarlu (supra) the learned Single Judge of the Orissa High Court held that the words "ordinarily resides" are not identical and cannot have the same meaning as "residence at the time of the application". It was further observed that the application for the minor's custody could be filed within the jurisdiction of the District Court from where he had been removed or in other words, the place where the minor would have continued to remain but for his removal. It is true that the minor's ordinary place or residence necessarily may not be a place where his father who is the natural guardian resides, as held by the Andhra Pradesh in the case of Harihar Parshad Jaiswal (supra) and the Saurashtra High Court in the case of Bai Shri Arun Kumari (supra). In the case of Sarda Nayar (supra) decided by a Division Bench of the Kerala High Court also, it was observed that the place of ordinary residence of the minor would be the place where the minor would have continued to reside but for the recent removal of the minor to a different place.
9. In the present case, as stated in the earlier part of the judgment, the minor children were ordinarily residing at Chandigarh till their mother died on 28th June, 1996 and their father who is the natural guardian was arrested on the basis of the FIR lodged by the petitioner. The said minors were handed over to the petitioner during the proceedings of Criminal Writ Petition No. 890 of 1996 as the respondent who is the natural guardian was in custody. The respondent immediately after his release, filed Criminal Writ Petition No. 1706 of 1996 for the custody of the minor children and after he was relegated to civil remedy., he filed an application under Section 25 of the Act. From these facts, it is clear that the minor children would have continued to live in Chandigarh but for the fact that they were handed over to the petitioner in the facts and circumstances of the case. In view of these facts, I am of the opinion that the Courts in Chandigarh have jurisdiction to entertain and try the present application filed by the respondent under Section 25 of the Act.
10. As regards the case of Harbans Singh (supra) relied upon by the counsel for the petitioner, suffice it to say that, the said case was decided on its own facts as in that case it was found that the minor child had been put into a school and was being properly looked after by the maternal uncle of the minor. In the present case, these facts have yet to be gone into by the learned trial Court.
11. For the reasons recorded hereinabove, I do not find any merit in this petition and accordingly, the same is dismissed. Since, the minors are at present staying with their maternal uncle at Nabha, it will be open to the learned trial Court to grant litigation and other miscellaneous expenses to the petitioner to defend the case which is pending before the learned trial Court. With this observation, the petition stands disposed of.