Madhya Pradesh High Court
Shri Adesh Gupta vs Smt. Sadhna Gupta on 5 January, 2012
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF MADHYA PRADESH,
JABALPUR
W.P. No.12742/11
Adesh Gupta and two others
.. .. Petitioners
Vs./-
Smt. Sadhna Gupta
.. .. Respondent
------------
For the Petitioners : Shri Ashok Lalwani, Advocate
For the Respondent : Shri Anoop Saxena, Advocate
===============
Present:
HON'BLE MR. JUSTICE ALOK ARADHE
----------------------------------------------------------------
ORDER
(05.1.2012) In this writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the validity of the order dated 5.5.2011 passed by the trial Court by which the application preferred by the petitioners under Order 7 Rule 11 of the Code of Civil Procedure has been rejected. In order to appreciate the petitioners' challenge to the impugned order, few facts need mention, which are stated infra.
2
2. The marriage of petitioner No.1 was solemnised on 28.6.1998. From the wedlock, a son and a daughter, respectively were born. The respondent filed a petition under Section 9 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act') on or before 18.2.2011 for appointment of respondent as guardian of the minor children and for obtaining custody of the children at Chhattarpur. The petitioners on receipt of notice of the proceeding, filed an application under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to 'CPC') on the ground that the children are not residing within the territorial jurisdiction of the Court at Chhattarpur and are studying in boarding school in Chandigarh, therefore, the Court has no territorial jurisdiction to deal with the petition. The respondent filed reply to the aforesaid application and opposed the prayer made in the application. It was averred in the reply that the children were taken out from Chhattarpur without her consent.
3. The trial Court vide order dated 5.5.2011 inter-alia held that respondent-wife is residing at Chhattarpur and in case there would not have been any dispute between petitioner No.1 and the 3 respondent, the children would have remained at Chhattarpur and, therefore, the children can be treated to be the ordinary residents of Chhattarpur and the Court therefore has the territorial jurisdiction to deal with the petition.
4. Shri Ashok Lalwani, learned counsel for the petitioners while inviting the attention of this Court to averments made in the petition filed by respondent No.1, clearly show that children are not residing within the territorial jurisdiction of the Court at Chhattarpur, and the children are living in a boarding school at Chandigarh and are prosecuting their studies at Chandigarh, and therefore, the Court has no territorial jurisdiction to try the petition. It was further submitted that either the Court at Gwalior or the Court at Chandigarh has territorial jurisdiction to deal with the petition and, therefore, the plaint should be returned for presentation to the Court of competent jurisdiction. In support of his submissions, learned counsel for the petitioners has placed reliance on the decisions of Harihar Pershad Jaiswal Vs. Suresh Jaiswal and others , AIR 1978 Andhra Pradesh 13, Shah Harichand Ratanchand Vs. Virbbal and others , AIR 1975 Gujarat 150, Amal 4 Saha Vs. Smt. Basana Saha , AIR 1988 Gauhati 22 and Ruchi Majoo Vs. Sanjee Majoo , (2011) 6 SCC
479.
5. On the other hand, learned counsel for the respondent while opposing the submissions made by learned counsel for the petitioners submitted that infact against the impugned order, the petitioners ought to have filed a civil revision and the writ petition against the impugned order is not maintainable. It was further submitted that the order passed by the trial Court is perfectly just and legal. It was also submitted that the respondent was deprived of the custody of the minor children by shifting them from the territorial limits of the Court at Chhattarpur without her consent, therefore, the Court at Chhattarpur has territorial jurisdiction to deal with the petition. In support of his submissions, learned counsel for the respondent has placed reliance on Vinayak Rao Jadhav and others Vs. Shweta Vinayak Rao Jadhav , 1997(1) MPLJ 27 and Johra Bi and others Vs. Jageshwar and others , 2010(1) MPLJ 98.
6. I have considered the submissions made on both sides. Section 9(1) of the Act provides that 5 application with regard to guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor "ordinarily resides". The residence is a mere physical fact. It means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. When this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material See: Kedar Pandey Vs. Narain Bikram Sah , AIR 1966 SC 160. In Yogesh Bhardwaj Vs. State of U.P. and others , (1990) 3 SCC 355, it has been held that residence is a physical fact and no volition is needed to establish it. Any period of physical presence, however short, may constitute residence provided it is not transitory, fleeting or casual. It has further been held that residence must be voluntary.
7. It is well settled in law that while dealing with the application under Order 7 Rule 11 of the C.P.C., only the averments made in the plaint alone are to be seen See: Saleem Bhai and others Vs. State of Maharashtra and others , (2003) 1 SCC
557. In the case of Ruchi Majoo, supra, the Supreme Court while considering Section 9(1) of 6 the Act has held that solitary test for determining the jurisdiction of the Court under Section 9 is ordinary residence of the minor. The expression used in Section 9(1) of the Act is "where the minor ordinarily resides". 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 mixed question of law and fact. It has further been held that unless jurisdictional facts are admitted, it can never be pure question of law capable of being answered without an enquiry into the factual aspects of the controversy.
8. Thus, from the aforesaid enunciation of law by the Supreme Court, it is apparent that the question whether the minor is ordinarily residing at a given place is primarily a question of fact which cannot be answered without an enquiry into the factual aspects. Besides that it is relevant to mention here that residence by volition or by compulsion within territorial jurisdiction of the Court cannot be treated as place of ordinary residence. Similarly, the words "ordinarily resides"
are not identical and cannot have the same meaning as residence at the time of filing of the application 7 for grant of custody. The purpose of using the expressions "where the minor ordinarily resides" is probably to avoid the mischief that minor may be forcibly removed at a distant place, but still the application for minor's custody could be filed within the jurisdiction of the court from whose jurisdiction he had been removed or in other words where the minor would have continued to remain but for his removal. Similar view has been taken in Koduparthi Venkateshwarlu and others Vs. Ramavarapu Viroja Nandan and others , AIR 1989 Orissa 151. If the averments made by the respondent in paragraphs 4, 11, 15 and 15 of the petition filed by her are seen, it is apparent that the children have been removed from Chhattarpur without her consent. The jurisdictional facts are not admitted and the petition contains the averment that the Court at Chhattarpur has the territorial jurisdiction to try the petition. The question whether the Court at Chhattarpur has territorial jurisdiction to try the petition is a mixed question of law and fact, as the same is dependent on the question whether the minors are residing within the territorial jurisdiction of the Court. The aforesaid question cannot be determined without holding enquiry into the factual aspects of the controversy. 8 The scope of scrutiny at the stage of consideration of an application under Order 7 Rule 11 of C.P.C. is confined only to the averments made in the petition. Thus, the question whether the Court has territorial jurisdiction being mixed question of law and fact cannot be decided by way of an application under Order 7 Rule 11 of C.P.C.
9. For the aforementioned reasons, the order dated 5.5.2011 passed by the trial Court is hereby quashed. In case the petitioners take an objection in the written statement with regard to maintainability of the petition filed by the respondent under Section 9 of the Act on the ground of lack of territorial jurisdiction, the trial Court shall frame an issue and shall decide the same in accordance with law.
10. With the aforesaid direction, the writ petition stands disposed of.
(Alok Aradhe)
a Judge