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Harihar Pershad Jaiswal Vs. Suresh Jaiswal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 534 of 1976
Judge
Reported inAIR1978AP13
ActsGuardians and Wards Act, 1890 - Sections 9, 9(1) and 19
AppellantHarihar Pershad Jaiswal
RespondentSuresh Jaiswal and ors.
Advocates:V. Hanumantha Rao, Adv.
Excerpt:
.....1890 - petitioner filed petition in court at hyderabad declaring himself to be natural guardian of minor girl - section 9 provided that application shall be made to district court having jurisdiction in place where minor ordinarily resides in case it relates to guardianship of minor - minor girl did not ordinarily resided at hyderabad - held, court at hyderabad had no jurisdiction to entertain petition. - - 3 went to her brother's place to attend a function and stayed there for a period of four months .after her return from nagpur ,she found that her husband developed illicit intimacy with a gujrati lady who was living in the same house .thereafter the petitioner and his mistress used to harass her and her children and made the life of the 3rd respondent and her children very..........studying at the shiv dat raj high school, lal bazar, hyderabad in 4th class in the year 1970. the minor girl neeta was kidnapped on 2-10-1970 at 12 noon from the house of the petitioner by the respondents expect respondent no. 3 who is wife and the girl has been concealed after kidnapping all the respondents under the changed name 'anita' . it was his case that the girl was kept at nagpur and tumsar, bhandara district, maharashtra state and that on receiving information on 7-5-1975 that the minor girl, had been kidnapped, the petitioner tried to trace the girl, but the respondents concealed her and threatened the petitioner and asked him to go away. consequently the petitioner got issued a search warrant at both places and the girl was recovered at tumsar from the custody of the first.....
Judgment:

1. This appeal arises out of an order passed by the Additional Chief Judge, City Civil Court, Hyderabad dismissing the application field by the appellant (Petitioner) under S. 25 of the Guardians and Wards Act, on the ground that the Court has no jurisdiction to entertain the petition. The petitioner is the appellant herein.

2. The relevant facts of the case are as follows : The petitioner is the husband of the 3rd respondent. They were married some time in the year 1959 and they had a boy and one girl. The girl was born in some time in the year 1962. The parties lived together at Hyderabad. Some time in the year 1967, quarrels started between the petitioner and respondent No. 3. It is the case of the petitioner that the girl (Neeta) was born on 7-5-1962 and she has been studying at the Shiv Dat Raj High School, Lal Bazar, Hyderabad in 4th class in the year 1970. The minor girl Neeta was kidnapped on 2-10-1970 at 12 Noon from the house of the petitioner by the respondents expect respondent No. 3 who is wife and the girl has been concealed after kidnapping all the respondents under the changed name 'Anita' . It was his case that the girl was kept at Nagpur and Tumsar, Bhandara District, Maharashtra state and that on receiving information on 7-5-1975 that the minor girl, had been kidnapped, the petitioner tried to trace the girl, but the respondents concealed her and threatened the petitioner and asked him to go away. Consequently the petitioner got issued a search warrant at both places and the girl was recovered at Tumsar from the custody of the first respondent. It may be noted that the first respondent is the brother-in law of respondent No. 3 who is the wife of the petitioner. Thereafter she was produced by the 1st respondent before the Court of the 5th Metropolitan Magistrate, Hyderabad, Andhra Pradesh. At that stage, the third respondent filed a petition for handing over of the girl having given her address as house No. 2-1-161/2, Nallakunta, Hyderabad. It is in these circumstances the petitioner filed O. P. No. 195/75, out of which the above appeal arises, in the Court, of the Additional Chief Judge, City Civil Court, Hyderabad for declaring him to be the natural guardian of the minor and for the custody of the minor girl Neeta. The petitioner has impleaded as many as five persons as respondents, the first respondent being the sister's husband of his wife Suseela who is impleaded as respondent No. 3. Respondents 2 and 5 are brothers of his wife respondent No. 3. Respondent No. 4 is the father of respondent No. 1.

3. In the above said O. P. 195/75, respondent No. 3, the wife of the appellant has filed a counter opposing the reliefs prayed for the petitioner . According to her , her marriage with the petitioner took place in the year 1959 at Nagger at her parent's house . After the marriage, she came to Hyderabad and started residing with the petitioner as his wife at Charminar where the petitioner owns a house . They had two children , one boy and one girl and they were born in the year 1961 and 1963 respectively .The name of the son is Anil Jaiswal and that of the daughter is Anita Jaiswal; but the family people used to call her as Neeta which is the shorter form of her name . She further states that respondent No. 3 lived with her children till 1967 and that during the period from 1959 to 1967 the petitioner developed hatred towards her and abused her on many occasions and was saying that he would marry another woman . He was ill-treating her and her children and he never cared for their proper boarding and lodging in the year 1967 respondent No. 3 went to her brother's place to attend a function and stayed there for a period of four months . After her return from Nagpur , she found that her husband developed illicit intimacy with a Gujrati lady who was living in the same house . Thereafter the petitioner and his mistress used to harass her and her children and made the life of the 3rd respondent and her children very miserable .

In these circumstances the respondent 3 started living with her children along with her mother-in-law in the second floor of the building , but there also the petitioner used to come and ill-treat her. For some time, respondent No. 3 finding no other way to maintain herself, started stitching clothes and maintain herself and her children. Even there the 3rd respondent was not left alone and on one occasion she alleges that the petitioner and her mistress tried to pour Nitric Acid on her, but she somehow escaped and that this incident has been witnessed by the neighbours who had saved her. The petitioner drove respondent No. 3 keeping both the children with him. She further alleges that the children remained with the 3rd respondent till 6-7-1970 and in the year 1970 respondents 4, 5, 2 and also the father of the 3rd respondent came to Hyderabad for a settlement, but the petitioner refused to maintain her children and handed over both the children to them and thereafter the children went to Nagpur. The children were admitted in Naveen Vidya Bhavan, Nagpur in the year 1970. In 1970 when her son Anil was playing in the school grounds, the petitioner came there and took him without her consent and knowledge and on the way he sent a cable message stating that he was taking his son along with him. Thereafter her father expired in 1972 and she shifted herself along with her daughter Anita to Tumsar where her sister resides. She admitted the minor into school where the girl has studied 6th and 7th classes and is at present in the 8th class. It is further stated that the petitioner field M. P. 879/75 in the month of June 1975 before the 5th Metropolitan Magistrate, Hyderabad under Ss. 97 and 98 of the Cr. P. C. praying for a search warrant stating that the minor was kidnapped in the year 1970 and he came to know about her whereabouts only in June 1975. The Magistrate issued a search warrant and in compliance with the same, the girl was produced before the Magistrate at Hyderabad on 21-6-1975 and the Magistrate, after recording the sworn statement of the girl, handed over the custody of the girl to respondent No. 3 during the pendency of the said Criminal Miscellaneous petition on certain conditions.

Having failed in his attempt to get the custody of the child under the Criminal Proceedings, the above original petition has been filed. She also states that I.A. No. 348/75 has been filed requesting the Court to hand over the girl to him and if the girl is not handed over to him, she may ordered to be sent to a certified school. The lower Court passed an order dated 8-7-1975 permitting respondent No. 3 to keep the girl along with her till the disposal of I. A. No. 348/75. It is her case that during the period from 1960 to 1975 the petitioner is writing several letters to the respondent No. 3 and her children and that he obtained the orders of the search by playing fraud and misrepresentation . She further states that since the petitioner is of bad character and was actually living with another lady, it is not in the interests of the minor girl to be handed over to the custody of the petitioner. She further alleges that the petitioner has been consuming liquors and was leading a bad life and hence the minor cannot be given to the petitioner. She further contended that the Court at Hyderabad had no jurisdiction to entertain the petitioner.

4. After the counter was filed by respondent No. 3, the case was taken up for trial and three issues have been framed. Issue No. 2 was whether the lower Court has got jurisdiction to entertain the petition in view of S. 9 of the Guardians and Wards Act and it was agreed on both sides that the hearing on issue No. 2 may be taken up as a preliminary issue. No evidence has been let it on the said issue and the Court decided on the pleadings contained in the petition and the counter. Having regard to the provisions of the Guardians and Wards Act and the respective averments of the parties, the Court below has dismissed the petition on the ground that the Court has no jurisdiction to try the petition. The lower Court has ordered the petition to be returned for presentation before the proper Court having jurisdiction. Hence this appeal.

5. In this appeal, the learned counsel for the appellant has urged two main contentions. The first contention is that the Court below erred in holding that it has no jurisdiction in view of the provisions of S. 9 of the Guardians and Wards Act. According to him, Hyderabad must be considered as the place of ordinary residence of the minor as the petitioner and respondent No. 3 along their children lived at Hyderabad till the year 1970 and that the minor girl had been kidnapped in the year 1970 and since the minor girl has been kidnapped in the year 1970 on account of which she was residing at Tumsar in Bhandara District, Maharashtra state, it cannot be said that the minor's place of ordinary residence is Tumsar. The place of ordinary residence of the minor must be construed as the place of residence of her natural guardian who is the father and hence the Court at Hyderabad has got jurisdiction to try the petition . Secondly it was contended that in any view of the matter from June, 1975 when the girl was given to the custody of the mother respondent No. 3 who gave her address as Nallakunta in Hyderabad, it must be deemed that the minor has been residing at Hyderabad at the time of filing of this application. In this connection it may be noted that this application has been filed on 3rd July, 1975. I am afraid I cannot accept either of the two contentions. In order to appreciate these contentions, I may refer to certain provisions of the Guardians and Wards Act which have a bearing on the matter. Section 25 of the Guardians and Wards Act reads as follows : --

' 25. Title of guardian to custody of Ward :-- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. '

The expression 'Court' has been defined under S. cation under this Act for an order appointing or declaring a person to be a guardian. Hence we have to see which is the District Court that has got jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. This is dealt with by S. 9 which says that 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. From these provisions, it is clear that an application under S. 25 of the Guardians and Wards Act has to be filed in the District Court, having jurisdiction in the place where the minor ordinarily resides. Hence the crucial question which falls for consideration is what is meant by the expression ' Where the minor ordinarily resides.'

In Lalitha Twaif v. Paramatma Prasad (AIR 1940 All 329), it is pointed out that the minor's actual place of residence at time of application under S. 9(1) does not determine the jurisdiction of the Court. It must be proved where the minor ordinarily resides as laid down in S. 9(1) of the Act. Relying on this decision, the learned counsel for the petitioner contends that the minor must be deemed to be ordinarily residing at Hyderabad which is the place of residence of the natural guardian who is the father. In the aforesaid , case the facts are that the mother took away the minors to Shadiabad where her parents resided about three or four months before the application was made . Before that the minors and their mother were living for several years in Benaras where her husband had lived, within the jurisdiction of the District Judge at Benaras . It was under those circumstances the court has held that the court at Benaras had jurisdiction as Benaras was the place where the minor should be deemed to have their ordinary residence . The mere fact that the minor had been taken by their mother to Shadiabad when she went for a visit, would not make Shadiabad as the place of ordinary residence of the minor . I do not see how this decision helps the case of the petitioner and the said case is easily distinguishable on two grounds . One is that the mother had taken the children to her father's place to which she goes off and on , on some visits and it was only about three or four months before the filing of the application that the minors were taken to their mother's place at Shadiabad and were staying there .But in the present case from the pleadings , it appears that the minor girl was living with the mother from the year 1970 either at Nagpur or at Tumsar in Maharashtra State and the present application has been filed in the year 1975 . Further it was not for the purpose of any visit that the minor was taken by the respondent N0. 3. but due to estrangement between herself and the petitioner whatever the reasons might be .Hence this decision is of no use to the petitioner .

6. The next decision cited on behalf of the applicant is S . M Vimalabai v. Babu Rao Shamrao, (AIR 1951 Nag 179 ). It is stated there that under the Hindu Law the father is the natural guardian of his children and his children must be deemed to reside where he resides and where a man has no permanent abode , he must be deemed to reside where he actually resides . And it follows therefore , that his children also must be deemed to reside at the place where he happens to reside . The facts in the Nagpur case are that the wife filed a petition in a Court at Nagpur under S. 10 of the guardians and Wards Act for the appointment of a person as guardian of his minor daughter on the ground that the girl was born at Nagpur and that she has ordinarily been residing at Nagpur along with the minor and that the paternal grand-mother of the minor had taken the minor to their house at Dharampeth for a short stay, promising to give her back . The paternal grand-mother did not keep up her promise but took the minor girl to Amraoti where the applicant's husband is serving as lecturer in some college . It further transpires that the applicant and her husband lived together at Nagpur for several years after they got married , but later on when misunderstandings arose between the parties , the husband shifted to Amraoti where he got appointment as a lecturer and that he took the minor girl with him to Amraoti . It was at that stage the application had been filed by the mother at Nagpur .It was actually found in that said case that the minor was living with her father at Amraoti for one year prior to the date of the application . In those circumstances the Nagpur High Court has held that the court at Nagpur has no jurisdiction to try the petition as the mother's residence was at Amraoti . This decision is of no assistance to the appellant as it was found in the said case that the minor was living with her father who is the natural guardian at Amraoti which is not within the jurisdiction of the Court at Nagpur .It was in those circumstances that it was held that the mother must be deemed to be in-charge of the minor at Nagpur while her husband was at Amraoti and that for all practical purposes the ordinary residence of the minor must be considered as Amraoti . This decision does not help the appellant in view of the fact that in the present case the minor was actually found residing with her mother either at Nagpur or Tumsar for a period of about five years prior to the filing of the present petition . Prima facie I am not inclined to believe the statement of the appellant that the minor was kidnapped in the year 1970 . This allegation was denied by the respondent No. 3 who contended that the petitioner forcibly drove out respondent No . 3 and her children at the instance of his mistress and that the mother and children were forced to reside at her parents' house at Nagpur . The petitioner would not have kept quiet till the year 1975 without taking any action . I am not expressing any final view in this matter . Prima facie it appears that the petitioner has set up this plea of kidnapping only to raise a possible contention that the minor has not been ordinarily residing at a place other than Hyderabad . The act remains that the minor was produced from Tumsar and it is the admitted case on both sides that the minor has not been residing at Hyderabad from 1970 . In this connection , I may refer to the decision of the Gujarat High Court in Shah Harichand Ratanchand v. Virbbal , : AIR1975Guj150 . In the said case , the minor children were residing with their mother at a particular place for two years before their father applied for custody . It is held that the place of the minor's residence would be the place where they were residing with their mother and not the place where the applicant's father resides .

It is pointed out therein as follows :

'S. 25 however, has categorically used the expression 'the Court' which has been statutorily defined in S. 4 (5) (a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under S. 9(1) if the application is with respect to the guardianship of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the 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.'

The question as to where the minor ordinarily resides is a question of fact. If we examine the facts of the Gujarat case, it can be safely said that they are very much similar to the facts of the present case. In this case the parties were married in 1961 and they were residing at Palanpur. Three children were born of that marriage in 1963, 1966, 1968. The case of that petitioner was that the mother ran away from the family house at Palanpur in 1967 to her father's house in the Village Vaghel in the jurisdiction of the Mehsana District Court. Therefore the father applied for the custody of the children who removed by the wife to the village Vaghel against the will of the father. The said application was filed in 1970 before the District Court at Palanpur and in the same application the wife's father and mother were jointed as respondents. The trial Court by an order dated 3rd Sept. 1971 held that it had jurisdiction as the minor children must be taken to be residing with the father who had the legal custody. The said order of the District Court was reversed by a single Judge of the High Court on the ground that the Palanpur Court had no jurisdiction as the minor was actually living with her mother at Vaghel Village which was within the jurisdiction of the Mehasana District Court. Against this decision of the single Judge, a Letters Patents Appeal had been filed and a Division Bench of the Gujarat High Court has clearly observed that Court at Palanpur had no jurisdiction to try the original petition as the minors were actually found residing with their mother at a different place. Having regard to the fact that the minors have been living for a considerable time with the mother at a place which is not within the jurisdiction of the Palanpur Court it was observed :

'If the application is made immediately after the removal from the father's custody, the place where the 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 the conveniences because the legislative test would be fulfilled. The question however cannot be decided on presumptive, legal or constructive custody but by ordinary residence of the minor. This would surely be a question of fact to be resolved in each case by taking into consideration all relevant circumstances.'

Having laid down the test , on the facts of the said case, the learned Judges held that the minor must be deemed to be ordinarily residing at the new place in Vaghel with his mother which has become the settled home of the minor children who were taken away by respondent No. 1 who was their mother as early as in 1967, almost more than two years from the date of the father's which was in January 1970. As already stated, the facts of the present case are almost similar to the facts referred to above. In the present case, the minor has been living with her mother for a period of about five years from 1970 till 1975 when she was produced at Hyderabad pursuant to the search warrant issued by Magistrate in the criminal proceedings. It is the case of the respondent No. 3 that she was living at Nagpur till 1970 which is her father's place along with the minor girl, and thereafter, when her father passed away in 1972 she shifted to Tumsar , Bhandara District in the state of Maharashtra as her sister was residing at that place and she was keeping her minor girl at Tumsar. This fact is corroborated by the girl being produced in 1975 from the custody of respondent No. 1 who is no other than the husband of the sister of respondent No. 3. as stated already, the theory of kidnapping does not appear to be true as the petitioner would not have kept quiet for a period of 5 years if the minor had been kidnapped as long back as 1970. Further it is case that the minor had been kidnapped by respondents 1, 2, 4 and 5 and he curiously states that the 3rd respondent has nothing to do with it. It is unlikely that respondents 1, 2, 4 and 5 would have kidnapped a minor girl without the knowledge of respondent No. 3 . Accordingly to the petitioner, his wife respondent No. 3 was still at Hyderabad. It appears to me, that due to enstrangment between the parties, whatever the reason might be, respondent No. 3 has left Hyderabad to her place in year 1970 along with the minor children and has been staying there at Nagpur and later on shifted to Tumsar, her sister's place. From these facts, it is clear that the minor's ordinary place of residence cannot be said to be Hyderabad merely because the father who is the natural guardian is residing at Hyderabad. If the expression 'place of ordinary residence' means the residence of his natural guardian, the very purpose of using the word 'the residence of the minor' in S. 9(1) would be lost. It is not the place of residence of the natural guardian that gives jurisdiction to the Court under S. 9(1) but it is place of residence of the minor and the Legislature has designedly use 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 reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides. Having regard to the facts of the present case, I am of the opinion that the Court at Hyderabad has no jurisdiction to try the original petition when the minor has been living with her mother at Nagpur for some time and at Tumsar in Maharashtra state for some time. Hence, I reject the first contention of the learned advocate for the appellant.

7. The second contention viz., that in any view from June 1975 the minor has been residing at Hyderabad and since the application has been filed in July 1975 it must be construed that the minor has been actually residing at Hyderabad also cannot be accepted. Firstly there is no evidence in this case to show that the minor was residing at Hyderabad in July 1975. Assuming it to be so, it can only be said to be a place of temporary residence for the purpose of complying with some conditions imposed by the Magistrate and this temporary residence cannot be deemed as the place of ordinary residence of the minor. In these circumstances, the trial Court was justified in holding that the Court at Hyderabad has no jurisdiction to try the petition and returning the same for presentation to the proper Court. In view of the aforesaid discussion, I find no merits in this appeal and the same is accordingly dismissed, but in the circumstances without costs.

8. Appeal dismissed.


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