Gujarat High Court
Kiranben W/Oprafulbhai Gori D/O ... vs Prafulchandra Kanjibhai Gori on 15 September, 2023
NEUTRAL CITATION
C/MCA/766/2023 ORDER DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 766 of 2023
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KIRANBEN W/OPRAFULBHAI GORI D/O JAGDISH BHADRA
Versus
PRAFULCHANDRA KANJIBHAI GORI
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Appearance:
MS AISHWARYA H CHAUDHARY(11539) for the Applicant(s) No. 1
MR BALWANTSINH PARMAR WITH MR PIYUSH B TRIVEDI(12401) for the
Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/09/2023
ORAL ORDER
1. The petitioner has filed this petition under section 24 of the Code of Civil Procedure, 1908 for withdrawing and transferring CMA / DC No.55 of 2022 filed before the learned District Principal District Judge, Ankleshwar to competent Court, Ahmedabad.
2. The respondent - Prafulchandra Gori has filed application under the provisions of Guardian and Wards Act for appointing him as guardian of two minor children and seeking custody thereof. Vide application being CMA / DC No.55 of 2022 was filed before Court of learned Principal District Judge, Ankleshwar joining the petitioner as opponent.
3. Facts of the case are as under :-
3.1. The petitioner and respondent are legally wedded wife and husband. Their marriage took place on 24.11.2012 at Village -
Ratatalav in Kachchh as per Hindu rites and rituals. Both of Page 1 of 4 Downloaded on : Mon Sep 18 20:41:11 IST 2023 NEUTRAL CITATION C/MCA/766/2023 ORDER DATED: 15/09/2023 undefined them have consumed matrimonial life given birth to two minor daughters. Later on some dispute arose between the parties and their matrimonial relationship has been discorded. Since 14.01.2021 the petitioner is living separately from her husband at Ahmedabad on the address shown in the petition along with two minor daughters. Respondent husband feels that minor daughters also require love and affection of father and therefore, the respondent husband has filed application under the Guardian and Wards Act seeking to declare himself as guardian of minor daughters and further seeking custody of both minor daughters from the petitioner. This petition was filed at the Court of learned Principal District Judge, Ankelshwar inter-alia on the grounds mentioned in this petition. The petitioner is seeking transfer of CMA / DC No.55 of 2022 to the competent Court at Ahmedabad.
4. Learned advocate Ms.Aishwarya Chaudhary would submit that at present both the minor daughters are living at Ahmedabad at parental home. She would submit that it is settled proposition of law that father seeking custody of two daughters has to prefer petition before the Court within whose jurisdiction both minor daughters are residing. She would submit at present minor daughters are living in Naroda and in that circumstances, District Court, Ankleshwar has no territorial jurisdiction to entertain application. She would further submit even otherwise it is impractical or inconvenience for her to attend proceedings along with two daughters on each and every date. This would run contrary to basis canon of welfare of children. Thus she would submit to allow this petition.
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5. On the other hand, learned advocate Mr. Balwantsinh Parmar would submit that it is difficult for father to attend proceedings at Ahmedabad, if such proceedings is transferred. He would further submit that once both the daughters were living within territorial jurisdiction at Ankleshwar that gives cause of action for the petitioner to file petition at District Court, Ankleshwar. He would submit that the Court should not ordinarily disturb jurisdiction at first instance. In the present case, District Court, Ankleshwar has jurisdiction to decide the issue and therefore, he would submit to dismiss the petition.
6. The issue that which Court has jurisdiction to decide custody of children under the Guardian and Wards Act is no more res-integra in view of judgment of Division Bench in the case of Harichand Ratanchand v/s. Virbala [1974 GLR 499]. Para 3 of the said judgment reads as under :-
"3. section 25(1), however, has categorically used the expression "the Court" which has been statutorily defined in Section 4(5)(a) to me an the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. u/s 19(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. Therefore, the legislature has statutorily defined the Court for the purposes of section 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislative the 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. If the application is made immediately after the removal from the father''s custody, the place where the Page 3 of 4 Downloaded on : Mon Sep 18 20:41:11 IST 2023 NEUTRAL CITATION C/MCA/766/2023 ORDER DATED: 15/09/2023 undefined father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly, if there are two places where it could be held that the minor was ordinarily residing, the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumptive, legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor. This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances."
7. Thus, it is clear that District Court under whose jurisdiction respondent resides has no jurisdiction to entertain the application. Admittedly, both the daughters are living at Ahmedabad.
8. In view of section 7(1)(g) of the Family Courts Act, 1984, Family Courts established under section 3 of the said Act has jurisdiction to try and decide the proceedings in relation to custody of minor daughters. Conjoint reading of section 25 of the Guardian and Wards Act and section 7(1)(g) of the Family Courts Act, jurisdiction to decide custody of minor daughters filed by the respondent herein is left with the Family Court, Ahmedabad.
9. For the foregoing reasons, this petition deserves consideration. Accordingly, the petition is allowed. CMA / DC No.55 of 2022 is withdrawn from the jurisdiction of District Court, Ankleshwar and transferred to Family Court, Ahmedabad for disposal in accordance with law.
Direct service is permitted.
(J. C. DOSHI,J) SATISH Page 4 of 4 Downloaded on : Mon Sep 18 20:41:11 IST 2023