Delhi High Court
Ramji Lal Yadav vs Dalip K. Yadav on 9 September, 1998
Equivalent citations: 1(1999)CLT121, 76(1998)DLT526
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
1. This appeal is directed against an order passed on an application of the petitioner/respondent (father) under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 (hereinafter called 'the Act' for short).
2. Brief relevant facts, are as under :
3. Sh.Dalip Kumar Yadav, the petitioner/respondent, was married to Smt. Shashi Bala on 26.4.86. Out of this wedlock a male child Jatin Yadav was born on 25.3.87 in Delhi. Smt.Shashi Bala along with her son went to her parents' house in Nainital. On 29.5.87 Smt. Shashi Bala died in suspicious circumstances. The child remained in the custody of his maternal grandfather.
4. According to the case of the petitioner/respondent, his repeated requests to his father-in-law to return the child were turned down and the custody of the minor child has not been handed over. Feeling aggrieved he filed the aforesaid application.
5. It is further the case of the appellant that Master Jatin was hardly two months old at the time of death of his mother and since then he has been living in Nainital with the appellant (maternal grandfather). Hence, Delhi Courts have no jurisdiction to try the su it. The respondent (father) was unable to maintain the child as he himself was working, and has no time to look after the child. It is also contended that the petitioner/respondent had married in the year 1991 and as such paramount consideration of welfare of the child would be well-served if the child remains in the custody of the maternal grandfather.
6. The learned Trial Court proceeded to decide the matter on the following issues:
"Issues (1) Whether it is in the interest and welfare of the minor to hand over his custody to the petitioner as alleged? OPP (2) Whether the petition is not maintainable under Section 9 of the Guardians & Wards Act, as alleged> If so, to what effect? OPP (3) Relief."
7. The learned Trial Court on Issue No. 1 took the view that it will be in the interest and welfare of the child if the petitioner is allowed to visit the child in his school and hostel as and when he desires and the child is handed over to the petitioner during holidays. On Issue No. 2, it was held that the ordinary residence of minor Jatin is in Delhi and as such, Delhi Court has jurisdiction. While granting relief it was clarified that this arrangement shall continue for three years and the petitioner is at liberty to move another application if circumstances change.
8. Feeling aggrieved by the impugned order, the present appeal has been filed by the maternal grandfather challenging the finding that Delhi Courts have jurisdiction. On the other hand, learned Counsel for the respondent/father of the child submits that no appeal is permissible in respect of an order passed under Section 9.
9. Having heard learned Counsel for the parties at length and after going through the record, I take up the point of maintainability of the appeal first. Since the father of the minor himself has moved an application not only under Section 7 but also under Section 25 of the Act and the learned Trial Court below has granted a limited relief of delivery of the custody of the minor for a limited and restricted period only during holidays, the matter appears to be covered by Clause (c) of Section 47 of the Act, for it provides that an appeal shall lie to the High Court from an order made by a Court under Section 25 making or refusing an order for return of the ward to the custody of its guardian. In this connection, learned Counsel referred to Section 12 as well as Section 48 of the Act. It may be mentioned that ultimately the order which has been passed appears to be of interlocutory nature for a period of three years and might have fallen under Section 12. But the order has not been passed under Section 12 but on an application under Section 7 and Section 25 of the Act. Consequently, the submission of the learned Counsel for the respondent cannot be accepted that the order had become final and no appeal would lie. Accordingly, this contention is rejected.
10. In so far as the question of territorial jurisdiction is concerned, Section 4(4) of the Act defines the District Court indicating that the term "District Court" has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. Section 4(5) defines the term "the Court" as meaning the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or where a guardian has been appointed or declared as a guardian in pursuance of any such application, the Court which appointed or declared the guardian or in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides. The phrase "where the ward for the time being ordinarily resides" came to be interpreted in numerous cases. It may be mentioned that the phrase is not only "ordinarily resides", but the phrase takes into consideration "for the time being ordinarily resides". In case we interpret the term "residence"; ordinarily the residence of a minor would be the residence of the natural guardian i.e. the father. But when we consider "where the ward for the time being ordinarily resides" it emphasises on the minor's ordinary place of residence and excludes the places to which minor may be removed or about the time of filing of application for enforcement of guardianship and custody of minor. The new place to which the minor may have gone or may be removed could become for the time being ordinary place of residence or minor only after the he/she has settled down at the place for reasonably long time and the residence has passed over the state of casual and temporary residence. The phrase also means that neither factual residence nor deemed residence along with the residence of the natural guardian would be appropriate for consideration of the phrase "where the ward for the time being ordinarily resides". For deciding residence in such context, it becomes a question of fact depending upon circumstances under which the minor was removed from the place of residence of his natural guardian, the conduct of the guardian, period of stay of the minor at the place where jurisdiction is sought to be conferred upon the Court. Thus, this kind of residence should have two elements: factum of residence in the sense of length and circumstances; and intention of residing permanently or for indefinite period at the place other than that of the residence of natural guardian or of the parties. Since we cannot attribute any animus et factum to the minor, for the child depends on others depending upon the circumstances, the conduct of the parties becomes very important.
11. Learned Counsel for the appellant refers to Smt. Aparna Banerjee v. Tapan Banerjee, . In that case two judgments Arun kumar v. Jhala Harpal Singh Natwar Singh, AIR 1954 Saurashtra 152 and Harihar Pershad Jaiswal v. Suresh Jaiswal, -- were considered. In both these cases the father filed application for custody against the mother of the child and the applications were dismissed. In the earlier case, the view taken was there was no presumption that the minor is deemed to reside at the place where his natural guardian resides and the place of residence of the natural guardian is not determining factor in/deciding the question of Court's jurisdiction, except as one of the circumstances to be considered in determining the ordinary place of residence of the minor. Even if such presumption can be raised, it is a weak presumption liable to easily rebutted by the proof of other circumstances. In the latter case, the view taken was that if the expression 'place of ordinary residence' means the residence of his natural guardian, the very purpose of using the words 'the residence of the minor' in section 9 would be lost. It is not the place of residence of the natural guardian that gives the jurisdiction to the Court under Section 9(1) but it is a place of the ordinary residence of the minor and the Legislature has designedly used the words 'where the minor ordinarily resides'. Hence, the actual residence of the minor, having regard to the circumstances under which the minor happens to be residing at the particular place must be taken into consideration in deciding the place where the minor ordinarily resides. Following these two judgments, it was held that the ordinary residence of the minor was Calcutta where the child was residing with his mother for the last 3 years.
12. In Tilak Raj Kapoor v. Smt. Asha Kapoor, also, the child was living with his mother at Bharatpur. The Rajasthan High Court held that "the District Judge, Jodhpur has no jurisdiction to entertain the application". The test laid down by the Rajasthan High Court is that the Court which has jurisdiction to hear the application under Section 9(1) of the Act where the minor ordinarily resides and with whom the minor must be deemed to have been in constructive custody.
13. In Shah Harish Chand Ratan Chand v. Birbal and Ors., , also, the dispute was between husband and wife about custody of the child and it was held that since Legislature has statutorily defined Court for the purpose of Section 25(1), legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody. In that case also minor children were residing at a new place in Vaghel with their mother which had become settled home of the minor children.
14. One must not loose sight of the fact that in all these cases there was a dispute between father and mother about custody of the child.
15. However, learned Counsel for the respondent relies upon Bhagyalakshmi and Anr. v. K. Narayana Rao, . In that case the Madras High Court took the following view :
"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 residence of the minors with their mother at her maternal home, though for some years had necessarily to be regarded as a temporary one or under compulsion or force of circumstances and could not therefore be regarded as their ordinary place of residence, which connotes the idea of a settled home which in the instant case was the father's place of residence."
16. Learned Counsel for the respondent also relies upon Lovejoy Patell and Anr. . In that case it was held as under:
"It is the ordinary place of residence of the minor which determines the jurisdiction of the particular Court to entertain the application bya person for appointment as guardian of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of the presentation of the petition."
17. In Chandra Kishore and Anr. v. Smt. Hemlata Gupta, , the Allahabad High Court held as under:
"The words "ordinarily resides" obviously mean more than temporary residence, even though such residence is spread over a long period. In the case of people who are 'sui juris', the difficulty in applying these words is considerably minimised because the person in respect of whom the question of residence may arise can give evidence to say where he actually ordinarily resides.
It was further held that:
"Under the Hindu law, the father is the natural guardian and the preferential guardian of his minor children. Therefore, when there is a contest between the mother and the father in regard to what the residence of the minor children is going to be, then the mother's word cannot be accepted in preference to the word of the father."
18. In that case the minors had ancestral home in Meerut and they had been there with their father and mother before they had been taken by their mother to Dehradun only for a very brief span of few hours. The Allahabad High Court took the view that the ordinary residence of the minors was Meerut and the Court at Dehradun has no jurisdiction to entertain the application of the mother for guardianship of the minor sons.
19. Taking into consideration all the judgments cited by both the parties, one has to take into consideration that the phrase "where the ward for the time being ordinarily resides" is considered something more than temporary residence and if it is also considered in the light of the relationship between the applicant, the minor and the opponent, then it is evident that the father is preferential guardian as compared to the maternal grandfather, in absence of any disqualification. The constructive and deemed residence cannot be ruled out altogether, specially in the circumstances where the wife had gone to her father's house temporarily and within two months she died in suspicious circumstances (ranging from suicide to murder). There is no indication of any intention in the pleading or otherwise that the mother of the minor had left the house of her husband for good and there was any animus disrendi; and in turn not to come back to her matrimonial house to place state higher pedestal than that of a temporary stay at her father's place. In this case, the fact, however, remains that the child remained with the maternal grand father after death of his mother between 29th May, 1987 till 6th October, 1988 and it is also not in dispute in view of the pleadings that the petitioner/respondent repeatedly requested the respondent/appellant to give the custody of the minor which he refused on the ground that the child was of tender age and the father had no time to look after the child. There is no doubt that the child has been got admitted in a school at Nainital without the consent of his father and now, the child is over 10 years of age. All the cases which were cited were that of mothers who had left their husbands residence alongwith the child and decided not to return. Moreover a mother is supposed to have the custody of a child who has not completed the age of 5 years under Section 6(1) of the Hindu Minority and Guardianship Act, 1956. Therefore, while deciding the question of ordinary residence of the minor so long the child is of 5 years of age, it has to be deemed that he is residing with the mother and the residence of the mother would be indicative of the ordinary residence of the child also. If seen in this light, there appears a rationale in accepting the view laid down in the cases cited by the learned Counsel. In certain cases where the mother got a child admitted in a school indicating her own Will to stay at her parents' place it may be understood that the residence of the mother coupled with the admission of the child in the school would make the place of mother's residence as the place of ordinary residence of the minor. But in a case like the present one, it is difficult to accept the proposition that the residence of the maternal grand father who happened to have just temporary custody of the child should be the place of ordinary residence of the minor. However, in case we take into consideration literally the phrase "time being ordinary residence", then one may be inclined to take into consideration even stay in a school/hostel also as a place "time being ordinary residence". But whether it was in tended by the Legislature? I feel not. (see Mrs. Annie Besant v. G. Narayaniah and Anr. AIR 1914 P.C. 41). "If the temporary stay is forcibly prolonged by the respondent by getting the child admitted in the school against the wishes of the father would it enure to the benefit of the person who is depriving the father, a natural guardian of the custody of the child?" is another question which stares us. In case the mother of the child was alive and was living at Nainital, this Court might not have any hesitation or inhibition to accept the contention of the learned Counsel for the appellant that only Nainital Courts would have jurisdiction. But in absence of the mother, the whole complexion changes. While ascertaining the residence of the minor one has to see all the circumstances, the place where the child is living, the relation who is having the custody, the person who has preferential claim of the custody in natural course, age of the child, welfare of the child, qualification or disqualification of the preferential natural guardian and the place of residence of such guardian to decide constructive and deemed residence of the minor. Each factor is equally important and subservient to the ultimate purpose of over all welfare of the child. In absence of any disqualification of the father to have the custody, his permanent residence being in Delhi, age of the child, his interest in meeting his father, the circumstances in which the child has been detained by maternal grandfather against the wishes of the father justify the finding of the learned Court below. In such a circumstance, I am not inclined to accept the contention of the learned Counsel for the appellant.
20. Supposing for the sake of argument, the contention of the learned Counsel is accepted and it is held that Delhi Court has no Jurisdiction, one of the questions which is required to be considered is "Has there been any failure of justice? If not, its effect on the validity of the order? It is not a case where the appellant has not been heard. The custody of the child is not being permanently delivered to the real guardian/father of the child. It is temporary custody during holidays without disturbing education of the child. The learned Court below has taken all possible precaution and that appears to be best possible order in the circumstances for the welfare of the minor child. In such circumstances, it would not be appropriate to modify the order or to set at nought the entire proceedings and to deprive the father, a natural and preferential guardian even this negligible privilege of having his son with him for few days during holidays. In Bhagyalakshmi and Anr. v. K. Narayana Rao, , the Madras High Court taking in to consideration Section 21 CPC observed in para 8 as under:
"Section 21 C.P.C. is intended to avoid technicalities based on local or territorial jurisdiction in the upholding of orders of Court. In Shah Harichand Ratanchand v. Virbbai, , it has been laid down that Section 21 C.P.C. is a transcendental and curative provision to see that technicalities do not prevail, when there is no failure of justice and that the Appellate Court was bound to resort to this curative provision before declaring the order of the District Court to be null and void by upholding the objection about territorial jurisdiction. Even on this ground, the contention of the appellants that the District Court at Salem had no jurisdiction to entertain the application filed by the respondent has to fail."
21. Since there has been no consequential failure of justice, I am not inclined to accept the submission of the learned Counsel for the appellant.
22. Accordingly, I find no force in this appeal and dismiss the same.