Gujarat High Court
Kirtibhai Meghjibhai Rathod vs Kanjibhai Virabhai Solanki on 25 September, 2023
NEUTRAL CITATION
C/AO/95/2022 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 95 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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KIRTIBHAI MEGHJIBHAI RATHOD
Versus
KANJIBHAI VIRABHAI SOLANKI
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Appearance:
MR MAYUR RAJGURU(1198) for the Appellant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original applicant against the respondents - original opponents against the order passed by the learned 3 rd Additional District Judge, Gir Somnath at Veraval in CMADC of 37 of 2021 on 19.02.2022. The parties are hereinafter referred to as the Page 1 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined applicant and the opponents in their rank and character as they stood in the original suit for the sake of convenience, clarity and brevity.
2. The facts leading to filing of this appeal are summarized as under:
2.1. That the applicant filed an application under Section 25 of the Guardian and Wards Act, 1890 (herein after referred to as 'the Act') seeking custody of his minor daughter, who is with the opponents. The opponents are the grant parents of the minor daughter and the father-in-law and mother-in-
law of the applicant and it is the say of the applicant that the applicant had married one Jashoda, daughter of the opponents on 24.06.2006, and out of the said wedlock, minor daughter - Jigyasha was born. That Jashoda had suffered from ill health and in the year 2015, it was found that she was suffering from cancer, and hence, the applicant had sent her along with the minor daughter to her parental home at Vanakbara, Diu. That Jashoda and the minor daughter remained at Vanakbara and after a long treatment, Jashoda expired on 01.12.2019. That her funeral rites were conducted at Vanakbara, and thereafter, the opponents did not send minor Jigyasha with the applicant to his house at Sutrapada, District Gir Somnath.
Page 2 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined 2.2. That the applicant sent a notice dated 18.08.2021 for custody of the minor daughter and also filed Criminal Misc. Application No.102 of 2021 under Section 97 of the Code of Criminal Procedure before the learned Judicial Magistrate First Class, Sutrapada for the custody of minor Jigyasha.
2.3. After the parties were served with the notice, they appeared before the learned Judicial Magistrate, First Class, Sutrapada and the applicant withdrew the application as talks of compromise were going on and the matter was disposed by an order dated 27.09.2021 by the learned Judicial Magistrate, First Class, Sutrapada.
2.4. The applicant submits that he is the natural and legal guardian of minor Jigyasha and the opponent No.2 has filed an application for maintenance of minor Jigyasha before the learned Judicial Magistrate, First Class, Diu being Criminal Misc. Application No. 9 of 2021 under Section 125 of the Code of Criminal Procedure. That the opponents are not handing over the custody of minor Jigyasha to the applicant and hence, the applicant filed Civil Misc. Application No.37 of 2021 seeking custody of minor Jigyasha from the opponents under the provision of Section - 25 of the Act.
3. The learned 3rd Additional District Judge, Gir Somnath, at Page 3 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined Veraval heard the learned advocate for the applicant and found that minor Jigyasha was residing at Vanakbara, District Diu and the application for maintenance was also filed at Diu and held that as per Section 9 of the Act, the Court of Gir Somnath at Veraval does not have jurisdiction as the minor was not ordinarily residing in the jurisdiction of the Court at Veraval, and hence, passed an order under Order-7 Rule-10 of the Code of Civil Procedure and returned the application for presentation to the Court having jurisdiction to institute the case.
4. Being aggrieved and dissatisfied with the said order, the appellant - original applicant has filed present appeal mainly stating that the impugned order is absolutely illegal, perverse and contrary to the facts and the averments of the pleadings and the learned Court has wrongly interpreted Section-7 of the Act. That the temporary residence of the minor cannot be termed as 'ordinary residence of the minor' and the deceased wife of the applicant had gone to her parental home for rest and treatment in February, 2019 with her minor daughter and if she would have recovered, she would have returned to Sutrapada to join the applicant with the minor daughter. That the custody of minor Jigyasha with the opponents is illegal and the learned Court has failed to reconsider that the Page 4 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined ordinary place of residence of the minor would be Sutrapada as the minor was born at Sutrapada and mainly on presumption and without application of mind, the impugned order has been passed, which is bad in law and the same is required to be quashed and set aside.
5. Heard learned advocate Mr. Mayur Rajguru for the appellant
- applicant. Though served, the respondents - opponents have not appeared before this Court either in person or through an advocate.
6. Learned advocate Mr. Mayur Rajguru has submitted that the appellant is permanently residing at Sutrapada and after marriage, his wife Jashoda came to reside at the matrimonial home at Sutrapada. That the wife of the applicant, after her marriage, had fallen ill at her matrimonial home and she was detected with cancer and in the year 2015, she went for further treatment to her parental home at Vanakbara, District Diu and was there till her demise on 01.12.2019. That minor daughter had also accompanied her mother and after the sad demise of Jashoda on 01.12.2019 at Government Hospital, Diu, final rites were also conducted at Diu, which was attended by the appellant and at that time, the appellant wanted to take minor daughter Jigyasha with him but as the sad demise of Jigyasha had occurred, the opponents had Page 5 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined requested the appellant to leave the minor daughter at Vanakbara, District Diu, and thereafter, the opponents have refused to hand over the custody of minor Jigyasha. That in the ordinary circumstances, minor Jigyasha would be residing with the appellant at Sutrapada, and hence, her ordinary place of residence would be Sutrapada and the learned Court at Sutrapada would have jurisdiction to entertain the application under Section 25 of the Act.
7. Learned advocate for the applicant has relied on the following citations in support of his case:
1. Divya J. Nair D/o Jayan Vs. S.K. Sreekanth reported on 2018 SCC Online Ker 3375.
2. Ruchi Majoo Vs. Sanjeev Majoo reported on 2011 (6) SCC 479.
3. Begum Sabiha Sultan Vs. Nawab Mohd. Mansur Ali Khan reported on 2007(4) SCC 343.
4. Rinky Vs. Ravi Narendra Padia reported on 2019 SCC Online Guj 6172.
8. The short question before this Court is what would be the ordinary place of residence of the minor to decide the jurisdiction of the Court for the purpose of custody of the minor within the meaning of Section 9 of the Act in light of the above facts of the case.
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9. Section 9 of the Act 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."
10. As per the provision of Section - 9 of the Act, the District Court where the minor ordinarily residing would have jurisdiction to decide the application regarding the guardianship and the custody of the minor. In the case of Divya J. Nair (Supra), the High Court Kerala at Earnakullam observed as under:
13. In the instant case, it is not stated in the original petition filed by the appellant in the court below, on which date she became estranged from the respondent. However, learned counsel for the appellant submitted that they have been living separately from 08.03.2017 onwards. Due to enstrangment between the parties, whatever be the reason, the appellant has been staying in her house at Ottapalam with the child from 08.03.2017 onwards. Till that date the child was residing with her parents in the house of the respondent at Neyyattinkara. The school records produced by the respondent would reveal that the child has been studying in a school near the house of the respondent from the year 2016 onwards. As per the allegation raised in the original petition filed by the appellant, it was on 19.03.2017 Page 7 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined that the respondent took the child forcibly from her house at Ottapalam. The original petition was filed in the court below on 05.04.2017. In other words, except for the short period from 08.03.2017 to 19.03.2017, the child had been residing in the house of the respondent at Neyyattinkara. In such circumstances, the finding made by the lower court that the child has been ordinarily residing in the house of the respondent at Neyyattinkara cannot be found fault with. On the basis of the temporary stay or residence of the child for the short period from 08.03.2017 to 19.03.2017 in the house of the appellant at Ottappalam, it cannot be found that the child has been ordinarily residing within the Jurisdiction of the Family Court, Ottapalam.
18. We are unable to accept the contention raised by the learned counsel for the appellant that the mother being the natural guardian of the child, who was aged below five years, the ordinary residence of the minor child can only be the residence of the mother. It is not the place of residence of the natural guardian that determines the jurisdiction of the court under Section 9(1) of the Act. It is the place where the minor ordinarily resides which determines the jurisdiction. There is no presumption that the minor is deemed to reside at the place where his natural guardian resides. If the expression "the place where the minor ordinarily resides" in Section 9(1) of the Act means only the residence of his natural guardian, the legislature would have specifically provided so. If the legislature intended that the residence of the natural guardian of the child should determine the ordinary residence of the child, it would have used the expression to that effect in Section 9(1) of the Act. It did not do so.
11. In the case of Ruchi Manjoo (Supra), the Apex Court has observed as under:
23. Section 9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. While sub-
section (1) of Section 9 identifies the court competent to pass an order for the custody of the person of the minor, sub-sections (2) and (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is. therefore, relevant for our purpose. It says:
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,"Page 8 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023
NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined
24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the "ordinary residence" of the minor. The expression used is "where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law. capable of being answered without an enquiry into the factual aspects of the controversy.
25. The factual aspects relevant to the question of jurisdiction are not h admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer.
26. We may before doing so examine the true purpose of the expression "ordinarily resident" appearing in Section 9(1). This expression has been used in different contexts and statutes and has often come up for a interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word "ordinary" has been defined by Black's Law Dictionary as follows: "Ordinary (adj.).-Regular; usual; normal; common; often recurring: according to established order: settled; customary: reasonable; not be characterised by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual." The word "reside" has been explained similarly as under:
"Reside. Live, dwell. abide, sojourn, stay, remain, lodge. (Western-Knapp Engg. Co. v. Gilbank', F 2d at p. 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right. (Bowden v. Jensen, SW 2d at p. 349.)"
27. In Webster's Dictionary also the word "reside" finds a similar meaning, which may be gainfully extracted:
"1. To dwell for a considerable time; to make one's; lie 2. To exist as an attribute or quality with in 3. To be vested :
with in."
45. It is difficult to appreciate how the respondent could in the light of the above communications still argue that the decision to allow the appellant and Master Kush to stay back in India was taken under any coercion or duress. It is also difficult to appreciate how the respondent could change his mind so soon after the above e-mails and rush to a court in US for custody of Page 9 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined the minor accusing the appellant of illegal abduction, a charge which is belied by his letter dated 19-7-2008 and the e-mails extracted above. The fact remains that Kush was ordinarily residing with the appellant, his mother and has been admitted to a school, where he has been studying for the past nearly three years. The unilateral reversal of a decision by one of the two parents could not change the fact situation as to the minor being an ordinary resident of Delhi, when the decision was taken jointly by both the parents."
12. In the case of Rinky (Supra), this Court has in para - 13 as observed as under:
13. On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit is one which comes within the purview of Sections 16(b) and (d) of the Code. If a suit comes within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. that Section 20 of the Code cannot have application in view of the opening words of Section 20 "subject to the limitations aforesaid". This Court has also held that the proviso to Section 16 would apply only if the relief sought could entirely be obtained by personal obedience of the defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants c in the suit. We are in respectful agreement with the view expressed in the above decision. Applying the test laid down therein, it is clear that the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the five defendants are residing within the jurisdiction of the court at Delhi."
13. In light of the above settled principles of law, as per the case of the appellant, his daughter minor Jigyasha was born on 21.01.2015 and his wife Jashoda was detected with cancer in the year 2015 and she went to reside at her parental home at Vanakbara, Diu along with minor daughter Jigyasha. That minor Jigyasha remained with her mother till the sad demise of Jashoda on 01.12.2019 and even thereafter also, she Page 10 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined remained with the opponents at Vanakbara, Diu. As per the say of the appellant, Criminal Misc. Application No. 102 of 2021 seeking the search warrant for custody of the minor Jigyasha under Section 97 of the Code of Civil Procedure was filed before the learned Judicial Magistrate First Class, Sutrapada on 14.09.2021 and the same was withdrawn and disposed of by an order dated 27.09.2021. The appellant has also submitted that the opponent No.2 has filed an application for maintenance on behalf of the minor and the appellant has produced the copy of application, which shows that Criminal Misc. Application No. 9 of 2021 pending before the Court of the Chief Judicial Magistrate, Diu was preferred by the opponent No. 2 on 07.09.2021 and the notice was issued and the matter was adjourned on 16.10.2021. Admittedly, the appellant, after withdrawing the application for search warrant and after the application for seeking the maintenance under Section 125 of the Code of Criminal Procedure was filed, the present application seeking custody of the minor child is filed and the appellant was silent and no efforts were made to take custody of the minor daughter after the death of Jashoda on 01.12.2019. As far as the ordinary place of residence of the minor is concerned, it is settled that though ordinary residence would not mean the temporary residence and in the present incident, it appears Page 11 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined that minor Jigyasha is residing at Vanakbara since 2015 and as per the appellant, minor Jigyasha was born on 21.01.2015. This means the regular and usual dwelling place for considerably long period of time of minor Jigyasha is at Vanakbara, Diu and the expression where the minor ordinarily resides being a mixed question of law and facts in the instant case can be answered considering the factual aspects put up by the appellant himself that the ordinary residence of the minor is at Vanakbara, Diu.
14. Learned advocate for the appellant has vehemently argued that in ordinary circumstances, if the mother was alive, the mother and minor Jigyasha would be residing with the appellant at Sutrapada, and hence, the ordinary place of residence of the minor should be considered at Sutrapada. But, in view of the above settled principle of law as laid down by the Apex Court in case of Ruchi (Supra), it is clear that there cannot be a presumption that the place where the minor ordinarily resides would mean the residence of his natural guardian. In the instant case, as discussed above, if the legislature had intended that the residence of the natural guardian should determine the ordinary residence of the minor, the expression would not have been used to that effect in Section 9(1) of the Act. But, the question of ordinary Page 12 of 13 Downloaded on : Wed Sep 27 20:41:12 IST 2023 NEUTRAL CITATION C/AO/95/2022 JUDGMENT DATED: 25/09/2023 undefined residence of the minor being a mixed question of fact and law has to be determined on the facts of each case and in the instant case, it is clear that the ordinary residence of the minor at Vanakbara, Diu.
15. The learned 3rd Additional District Judge has discussed all the aspects regarding the jurisdiction and has rightly passed the order of returning the application under Order - 7 Rule 10 of the Code of Civil Procedure for presentation to the Court, in which, the application should have been instituted. Hence, no interference is required in the said order.
16. On request of the learned advocate for the appellant, it is hereby ordered that as the order was under challenge, the time consumed before this Court may not be treated as delay by the concerned Court.
17. In light of the above, the present appeal stands dismissed.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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