Madras High Court
S.Annapoorni vs K.Vijay on 30 August, 2017
Author: R.Subramanian
Bench: R.Subramanian
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
19.02.2019 08.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Application Nos.5445 and 5446 of 2018
in OP No.599 of 2018
S.Annapoorni ... Applicant in both the Petitions
Vs
K.Vijay ...Respondent in both the Petitions
Prayer: Applications are filed under Order XIV Rule 8 of the Original Side
Rules read with Section 151 of the Code of Civil Procedure, 1908 read with
Section 12(1) of Guardian and Wards Act, 1890 praying to
(i) pass an order directing interim custody of the minor child Priyanka,
born on 23.02.2006, currently aged 12 years, to the Applicant pending
disposal of the main Original Petition.
(ii) pass an order directing visitation rights from 9 am every Saturday
till 8 pm on Sunday every weekend, over the minor child Priyanka, born on
23.02.2006, currently aged 12 years, to the Applicant pending disposal of
the main Original Petition.
http://www.judis.nic.in
2
For Applicant : Mrs.B.Poongkhulali
in both the Petitions
For Respondent : Mr. R.Venkatraman
in both the Petitions for M/s. A.R.Palanisaamy
C O M M ON O R D E R
This Original Petition has been filed under Sections 3, 7 and 10 read with Section 25 of the Guardians and Wards Act, 1890 seeking guardianship of the minor child Priyanka and for her custody.
2. The petitioner is the mother of the child and the respondent is the father. The marriage between the petitioner and the respondent took place on 23.05.2004 at Conoor. Two daughters were born out of the said wed lock. The elder one Priyanka, is aged about 12 years and the younger one Anamika, is aged about 6 years. Both the minor children were in the custody of the petitioner.
3. According to the petitioner, the respondent illegally removed the elder child Priyanka from her custody from October 2017. It is the further case of the petitioner that she is residing in Bangalore along with minor children, when the respondent forcibly took away the elder daughter from http://www.judis.nic.in 3 her custody on 22.10.2017. The conjugal life between the parents ran into rough weather and resulting in lodging of Police complaints as well as filing of cases in Courts. A petition under the Domestic Violence Act was also filed in D.V.M.C No.3 of 2017. In order to escape from the cruelty, the petitioner had shifted to Bangalore where she was able to secure a job. The children were put in Delhi Public School, Bangalore and when they were studying there, the respondent removed the elder daughter from the custody of the petitioner.
4. It is also stated that the respondent has filed GWOP No.20 of 2017 on the file of the District Court, Nilgiris seeking permanent custody and guardianship of the minor children. The respondent also filed a Habeas Corpus Petition in HCP No.976 of 2017, in this court and this court by order dated 30.08.2017, directed the respondent to seek guardianship through Court under the Guardian and Wards Act. Subsequently, on 19.09.2017, the respondent withdrew GWOP No.20 of 2017 filed by him. It is further contended that the petitioner was prevented from meeting the minor child and hence she had filed Criminal case in Crl. OP.No.5 of 2017, for a direction to the police to register a FIR against the respondent. Though an attempt for conciliation was made by this Court, the same did not succeed. In the above circumstances, the petitioner had come forward with the above http://www.judis.nic.in 4 application, seeking herself is appointed as a guardian of the minor child and handing over the custody of the minor child to her.
5. The learned counsel for the respondent had raised the preliminary objection regarding the maintainability of the petition and the jurisdiction of this Court to entertain the petition. A preliminary counter affidavit was also filed raising the question of jurisdiction.
6. In view of the said preliminary objection raised by the learned counsel for the respondent, I had directed the counsels to address argument on the maintainability of the petition in this Court. Both the counsels had addressed arguments on the question of maintainability.
7. Mr.R.Venkatraman, learned counsel appearing for the respondent would strenuously contend that the marriage between the parties took place at Conoor and the minor children were born at Conoor, they were ordinarily residing at Conoor, outside the jurisdiction of this Court. The petitioner had removed the children to Bangalore on her own and even assuming that the children were ordinary residents of Bangalore, this Court would not have jurisdiction. The learned counsel would also invite my attention to Section 9 of the Guardians and Wards Act, which reads as follows:
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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. If the application is with respect of 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 the place where he has property. 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 on conveniently by any other District Court having jurisdiction.
8. He would also rely upon the judgment of a learned Single Judge in this Court made in Application No.3411 of 2010 in OP No.154 of 2008, http://www.judis.nic.in 6 wherein this court had held that this Court would not have jurisdiction, if it is shown that the minor children were not residing within the jurisdiction of this Court as on the date of the presentation of the petition. The learned Single Judge had considered the language of Section 9 and had come to the conclusion that this Court would not have jurisdiction, if the minor child was not ordinarily resident within the jurisdiction of this court at the time when the petition came to be filed.
9. The learned counsel would also rely upon the judgment of another learned Single Judge of this Court (Hon’ble Mr.Justice V.Ramasubramanian), in C.V.Ananth Padmanabhan v. Bindu, reported in 2008 (7) MLJ 22, in the said decision, the learned Judge after referring to various pronouncements of this Court and after considering the language of Clause 17 of the Letters Patent has concluded as follows:
“31. In my considered view, the jurisdiction of this Court to entertain the O.P. did not depend upon the physical availability of the children at Chennai on the date of presentation of the O.P. Even if the applicant had not gone to Hyderabad on 16.02.2008 and brought back the children to Chennai, this Court would have still had jurisdiction to entertain the O.P. for the simple reason that from the dates of their birth in the http://www.judis.nic.in 7 years 1999 and 2003 respectively, both the minors were ordinarily residing at Chennai till October 2007. The fact that the respondent shifted the children to Hyderabad in October 2007 and admitted them to a school in Hyderabad, whether with or without the consent of the applicant, did not make them non-resident Chennaiites.”
10. Relying upon the above observation of the learned Single Judge, Mr.R.Venkatraman, would strenuously argue that it should be shown that the minors were at least at some point of time, resident within the jurisdiction of this court, in order to enable this Court entertain the petition for guardianship of the minors. Mr.R.Venkatraman, would also draw my attention to another order of Hon’ble Mr.Justice C.V.Karthikeyan, in Application No.5557 of 2017 in OP No.311 of 2017, wherein the learned Judge followed the judgment of Hon’ble Justice V.Periya Karuppiah, in Application No.3411 of 2010, referred to supra, had concluded that this Court has no jurisdiction to entertain the petition for guardianship, unless it is shown that the minor children were ordinarily resided within the jurisdiction of this court either at the time of the presentation of the petition or immediately before such presentation.
11. My attention was also drawn to the judgment of Hon’ble Mr.Justice K.Chandru, in K.Amarnath v. Vardhini Amarnath and Ors, reported in http://www.judis.nic.in 8 2010 (6) CTC 308, wherein the learned Judge concluded that since minors were ordinarily residents at Karaikal outside Madras Presidency, this Court would not have jurisdiction to entertain the Original Petition.
12. Contending contra Mrs.B. Poongkhulali, learned counsel appearing for the petitioner would submit that Section 3 of the Guardians and Wards Act, which reads as follows:
“3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.- This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by (any competent Legislature, authority or person in any state to which this Act extends and nothing in this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by (any High Court).” preserves the jurisdiction of this Court in respect of the wards, who are shown to be ordinarily residing in the Madras Presidency. She would also contend that Clause 17 of the Letters Patent, which reads as follows:
“17. Jurisdiction as to infants and lunatics.- And we do further ordain that the said High Court of http://www.judis.nic.in 9 Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these presents.” enables this Court to entertain any matter relating to persons and estates of infants, residing within the Madras presidency.
13. She would also invite my attention to the judgment of the Division Bench of this Court in Pamela Williams v. Patrick Cyril Martin, reported in AIR 1970 (M) 427, and The Rajah of Vizianagaram v. The Secretary of State for India in Council and Ors, reported in 1936 (2) MLJ 873. She would also draw my attention to the judgment of a learned Single Judge of Calcutta High court in Sanjib Saha v. Bidisha Sana, reported in AIR 2006 Cal 214, wherein the learned Single Judge of Calcutta High Court had followed the Division Bench Judgment of this court in The Rajah of Vizianagaram, cited supra, and held that the jurisdiction of the High Court is preserved by Section 3 read with Clause 17 of the Letters Patent. She would also draw my attention to the judgment of Hon’ble http://www.judis.nic.in 10 Mr.Justice A.R.Lakshmanan, in Gautam Menon v. Sucharitha Gautam, reported in 1991 (1) MLJ 212, wherein the learned Judge held that when a question of jurisdiction was involved the question of convenience will not arise for consideration and upheld the jurisdiction of this Court in respect of the custody of minor children, relying upon the judgments of the Division Benches rendered in The Rajah of Vizianagaram and Pamela Williams, cited supra.
14. The learned counsel would also invite my attention to a Full Bench judgment of the Bombay High court in In Re: Ratanji Ramaji, reported in AIR 1941 Bombay 397, wherein the Full Bench had concluded that the jurisdiction of this Court over minors and lunatics extend to the entire State. It is the further contention of the learned counsel that the another Division Bench of this Court in K.V.Ananthakrushnan v. The Registrar, High Court and Ors, had preserved the jurisdiction of this Court under the Letters Patent.
15. Relying upon the above judgments Mrs.B.Poongkhulali, the learned counsel, would contend that de hors the fact that the minors reside outside the jurisdiction of this Court, this court would have jurisdiction to entertain the petition for guardianship, in view of the provisions of Section 3 http://www.judis.nic.in 11 of the Guardians and Wards Act, read with Clause 17 of the Letters Patent. According to her, the said jurisdiction cannot be whittled down or taken away.
16. I have considered the rival submissions.
17. I have already extracted Section 3 and Section 9 of the Guardians and Wards Act, as well as Clause 17 of the Letters Patent. From an analysis of the decisions relied upon by the counsel on either side, it is clear that the preponderance of judicial opinion is in favour of preserving the jurisdiction of the High court. No doubt, the two judgments relied upon by Mr.R.Venkatraman, namely, the judgment of Hon’ble Mr. Justice V.Periya Karuppiah, in Application No.3411 of 2010 in OP No.154 of 2008 and the judgment of Hon’ble Mr.Justice C.V.Karthikeyan, in Application No.5557 of 2017 in OP No.311 of 2017 have taken a different view.
18. Let me consider the judgments of the Division Bench of this Court which have been relied upon by Mrs.B.Poongkhulai, first. Dealing with the jurisdiction of this Court over minors and lunatics, a Division Bench of this Court in The Rajah of Vizianagaram v. The Secretary of State for India in Council and Ors, reported in 1936 (2) MLJ 873, after exhaustively http://www.judis.nic.in 12 considering the scope of the provisions of Clause 17 of the Letters Patent as well as Section 9 of the Guardians and Wards Act, has observed as follows:
“The question is, what is the order and course observed in England? The jurisdiction in regard to persons and properties of infants is that exercised by the Chancellor in the Court of Chancery as a part of the general delegation of the authority of the Crown virtute officii. It has therefore its foundation in the prerogative of the Crown flowing from its general power and duty as parents patriae see (1891) AC 388 Barnardo v. Mac Hug, (395). This power is exercised even it the infant is residing outside the jurisdiction of the Court of Chancery; vide 30 Ch D 324 at p.338 (an intant) (per Cotton, L.J.) and arising out of the prerogative of the Crown is not subject to any territorial limitation. All that is necessary is that at the time it is invoked the minor must be a subject of His Majesty. It is the same jurisdiction which is conferred by Clause 32.”
19. In Pamela Williams v. Patrick Cyril Martin, reported in AIR 1970 (M) 427, another Division Bench of this Court had after exhaustive consideration of the Law relating to the jurisdiction concluded that though the Court has got jurisdiction, it is a matter of discretion to appoint a person resident outside India as the guardian of the minor. The Division Bench http://www.judis.nic.in 13 upheld the jurisdiction of this Court to deal with guardianship of a minor, who is resident outside its jurisdiction.
20. The Full Bench of Bombay High court in In Re: Ratanji Ramaji, reported in AIR 1941 Bombay 397, had in fact relying upon the judgment of the Division Bench of this Court in The Rajah of Vizianagaram, cited supra, and concluded that the High Court in exercise of its original jurisdiction has jurisdiction even over minors residing outside its territorial jurisdiction. While doing so the Hon'ble Full Bench observed as follows:
“15. In this state of case-law, it appears that there is nothing in the words of Clause 37 to exclude infants, who are outside the limits of the ordinary original civil jurisdiction of the Court, but who are stated in this case to be within the Bombay Presidency from its operation. The weight of judicial decisions is in favour of that view.”
21. The learned Single Judge of the Calcutta High Court in Sanjib Saha v. Bidisha Sana, reported in AIR 2006 Cal 214, had after taking note of the language of Clause 17 of the Letters Patent, concluded as follows:
“15. The language of clause 17 of Letters Patent 1865, and also the Supreme Court as far the Bengal division of the Presidency of Fort William http://www.judis.nic.in 14 are same with those of the Bombay Division. It is the historical event therefore, Supreme Courts in three different Presidency towns by the Charter were established, thereafter three chartered High Courts were established by first Letters Patent 1862 followed by 1865. I with respect following the aforesaid interpretation of the corresponding Clause 17 of Bombay division hold that the jurisdiction conferred upon this Court is not restricted to the territory of Presidency town of Calcutta, but extend to Bengal Division of the Presidency of Fort William meaning thereby throughout State of West Bengal.
The phrase ‘shall have like power and authority’, means the power and authority over the subject-
matter, not restricting to territory.
16. The decision of this Court reported in AIR 1930 Cal 598 cited by this Court was not approved nor it was taken to be an authority on the question of jurisdiction by the said Special Bench judgment of Bombay High Court. Justice Kania (as His Lordship then) in the same judgment considered the decision of this Court cited by Mr.Kar expressed his own views in extenso. His Lordship considering the said decision of this Court and the decisions of the other High Courts came to the same interpretation as that of Chief Justice. Under those circumstances, I am unable to accept the arguments of Mr.Kar that scope and purview of http://www.judis.nic.in 15 Clause 17 of Letters Patent restrict to Presidency town of Calcutta meaning thereby within the city of Calcutta in its Ordinary Original civil Jurisdiction. I feel this provision is independent of Clause 12 of the Letters Patent. Precisely for this reason under Section 3 of the Guardians and Wards Act 1890 power under Clause 17 of Letters Patent of the High Court has been carved out and kept untouched.”
22. In Gautam Menon v. Sucharitha Gautam, reported in 1991 (1) MLJ 212, Hon’ble Mr.Justice A.R.Lakshmanan, had considered the question of jurisdiction and after referring to the Division Bench judgments in The Rajah of Vizianagaram and Pamela Williams, referred to supra, had held as follows:
“10. The argument advanced by the learned Counsel for the respondent that hardship would be caused to his clients if they are asked to appear before this Court and to contest the proceedings, cannot have any basis when the question of jurisdiction is involved in this case. As stated above Clause 17 of the Letters Patent confers jurisdiction on this Court. When the question of jurisdiction is involved the question of convenience as alleged by the respondent does not arise at all for any consideration. Hence I http://www.judis.nic.in 16 reject the arguments advanced by the learned Counsel for the respondent and accept the arguments for the petitioner with regard to the jurisdiction. In my opinion all the decisions referred to above are directly applicable to the facts and circumstances of this case. Respectfully following the above decisions I hold that this Court has jurisdiction to try the O.P. filed by the husband in this Court, for the custody of the minor children.”
23. Even in C.V.Ananth Padmanabhan v. Bindu, reported in 2008 (7) MLJ 22, cited supra, relied upon by the learned counsel Mr.R.Venkatraman, Hon’ble Mr.Justice V.Ramasubramanian, has upheld the jurisdiction of this court, in fact the learned Judge, para 31 of the judgment has observed as follows:
“31. In my considered view, the jurisdiction of this Court to entertain the O.P. did not depend upon the physical availability of the children at Chennai on the date of presentation of the O.P. Even if the applicant had not gone to Hyderabad on 16.02.2008 and brought back the children to Chennai, this Court would have still had jurisdiction to entertain the O.P. for the simple reason that from the dates of their birth in the years 1999 and 2003 respectively, both the http://www.judis.nic.in 17 minors were ordinarily residing at Chennai till October 2007. The fact that the respondent shifted the children to Hyderabad in October 2007 and admitted them to a school in Hyderabad, whether with or without the consent of the applicant, did not make them non-resident Chennaiites.”
24. The learned Judge had also extensively quoted from another judgment of this Court in Bhagyalakshmi and another v. Narayana Rao, reported in 1981 TLNJ 451, wherein it was observed as follows:
“The words “ordinarily resides” would in my view, cannote, 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 the moving the minors from one place to another and consequently from one jurisdiction to another. The question whether the minors were http://www.judis.nic.in 18 ordinarily residing in any particular place has to be primarily decided on the facts of the particular case.
The paternal family house or the family residence may normally be taken to be the place of ordinary residence of the minors as well. The words “ordinarily resides” are incapable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. The intention of not reverting back to the former place of residence would normally be relevant; but, in the case of minors, it is rather difficult to impute any such intention to them. It has also to be borne in mind that mere temporary residence or residence by compulsion at a place howeverlong, cannot be equated to or treated as the place of ordinary residence.”
25. The judgment of Hon’ble Justice K.Chandru, relied upon by Mr.R.Venkatraman, may not be helpful in deciding the jurisdiction of this Court because the learned Judge held that this Court would not have jurisdiction on the ground that the minor was resident at Karaikal, which was outside the Madras Presidency. Therefore, the jurisdiction conferred on this http://www.judis.nic.in 19 Court under Clause 17 of the Letters Patent, as preserved by Section 3 of the Guardians and Wards Act, would not extend to territories outside the Madras Presidency. Coming to the decisions of Hon’ble Justice C.V.Karthikeyan, in Application No.5557 of 2017 in OP No.311 of 2017 and Hon’ble Mr. Justice V.Periya Karuppiah in Application No.3411 of 2010 in OP No.154 of 2008, I find that the attention of the learned Judges, who decided those two cases were not drawn to the settled position of law, regarding jurisdiction of this Court in matters relating to custody and guardianship of minors.
26. The earlier Division Bench judgments of this Court were not brought to the notice of the learned judges, who decided the above two cases. In fact the attention of the Hon’ble Mr.Justice V.Periya Karuppiah was not drawn even to Clause 17 of the Letters Patent and Section 3 of the Guardian and Wards Act 1980. Insofar as the order of Hon’ble Mr.Justice C.V.Karthikeyan, is concerned the learned Judge has basically relied upon the order of Hon’ble Mr.Justice V.Periya Karuppiah, referred to supra. Therefore, I am unable to agree with the views of Hon’ble Mr.Justice V.Periya Karuppiah and Hon’ble Mr.Justice C.V.Karthikeyan, since they run counter to the Division Bench judgments of this Court. I am not referring the issue to a larger Bench in view of the fact that both the orders of Hon’ble http://www.judis.nic.in 20 Mr.Justice V.Periya Karuppiah and Hon’ble Mr.Justice C.V.Karthikeyan, run counter to the earlier pronouncements of Division Benches of this Court.
27. As already pointed out the Hon'ble Division Benches of this Court in The Rajah of Vizianagaram and Pamela Williams, referred to supra, have very categorically concluded that the jurisdiction of this Court under Clause 17 of the Letters Patent read with Section 3 of the Guardian and Wards Act, would extend even to minors who are ordinarily residents outside its jurisdiction. I am therefore, of the considered opinion that this Original Petition is maintainable in this Court and the same cannot be rejected on the ground of want of jurisdiction. Therefore, the preliminary objection raised by the learned counsel for the respondent is over ruled. There shall be no order as to costs.
28. The Registry is directed to post the Original Petition for further hearing on 14.03.2019.
08.03.2019 Index : Yes Internet: Yes Speaking order jv http://www.judis.nic.in 21 R.SUBRAMANIAN,J.
jv Pre Delivery Order Application Nos.5445 and 5446 of 2018 in OP No.599 of 2018 08.03.2019 http://www.judis.nic.in