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IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
Asra Shakeel..... Petitioner.
Versus
Shakeel Suleman..... Respondent.
Advocates appeared :
Muchhala with R.A. Dada i/by S. Mohammedbhai Co., for Asra Shakeel, for petitioner.
Mahendra Shah i/by K.V. Aiyer Associates, for Shakeel Suleman, for respondent.
GUARDIANSHIP - JURISDICTION - LETTERS PATENT OF BOMBAY HIGH COURT, CLAUSE 17 - GUARDIANS AND WARDS ACT, 1890, SECTION 9 - ORDINARY RESIDENCE OF MINOR - INTERPRETATION - COURT'S POWER TO APPOINT GUARDIAN - INTEREST OF MINOR AS PRIMARY CONSIDERATION.
Fact of the Case:
Petitioner, a mother, left her matrimonial home in Madurai with her minor son, Faraz, and arrived in Mumbai in January 1999. She filed a custody petition in Mumbai, claiming that she intended to make Mumbai their permanent residence. The respondent, the father, raised a preliminary objection, arguing that the Mumbai court lacked jurisdiction as the minor's ordinary residence was in Madurai.
Finding of the Court:
The court held that it had jurisdiction to hear and decide the guardianship petition and interim relief application based on the averments in the petition, particularly paragraph 18, which stated the petitioner's intention to permanently leave the matrimonial home and set up residence in Mumbai.
Issues: 1. Whether the Mumbai court had jurisdiction to hear and decide the guardianship petition and interim relief application. 2. Whether the minor's ordinary residence was in Madurai or Mumbai.
Ratio Decidendi: 1. The court interpreted Clause 17 of the Letters Patent of the Bombay High Court and Section 9 of the Guardians and Wards Act, 1890, and held that the court's jurisdiction to appoint a guardian is not limited to minors ordinarily residing within the territorial jurisdiction of the court. 2. The court held that the ordinary residence of a minor is not solely determined by the minor's physical presence at a particular location but also by the intention of the parent or guardian to make that location the minor's permanent residence. 3. The court emphasized that the primary consideration in guardianship matters is the interest and welfare of the minor.
Final Decision: The court rejected the respondent's preliminary objection and held that it had jurisdiction to hear and decide the guardianship petition and interim relief application.
2. Brief narration of facts may be necessary to decide the controversy.
The petitioner married respondent on 24th January, 1987. Out of this wedlock a son named as Faraz was born on 22nd October, 1987. On 3rd November, 1998 the petitioner left Madurai taking along with her the minor son Faraz who was then schooling at Vikasa School at Madurai in Standard VI. The petitioner while leaving left a note. Only the material part of the note in so far as the present issue is concerned will be referred to. The sum and substance in the note is that the petitioner informed the respondent that she is leaving the matrimonial home. On 27th November, 1998 the petitioner and minor son arrived at Hyderabad. In January, 1999 petitioner arrived at Mumbai with Faraz. The custody petition was filed on 15th January, 1999. In the petition in paragraph 9 it is averred that the petitioner is in Mumbai since January, 1999. It is then averred that the minor child would be admitted in Green Lawns School in Mumbai in VIIth Standard in new term commencing March, 1999. In paragraph 18 it is averred that the petitioner and the minor child Faraz are in Mumbai and intend to make Mumbai their permanent residence.
3. On behalf of the respondent his learned Counsel has referred to section 9 of the Guardians and Ward Act, 1890, hereinafter referred to "the Guardians Act". In terms of section 9(1) if the application is in 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. Learned Counsel tries to point out that therefore for a Court to have jurisdiction it is only that Court where the minor ordinarily resides which would have jurisdiction. Sub-section (4) of section 4 of the Guardians Act defines District Court to include a High Court in the exercise of its Ordinary Original Civil Jurisdiction. It is pointed out by the learned Counsel that right from the date of marriage i.e. 27th January, 1987 till the petitioner left her matrimonial home along with the minor, the ordinary residence of the minor was at Madurai. In that context it is pointed out that merely because the petitioner has left with the minor and temporarily brought the minor to Mumbai would not mean that the ordinary residence of the minor is at Mumbai. Learned Counsel has relied on several authorities which I will advert to later on.
On behalf of the petitioner her learned Counsel has contended that if the averments at paragraph 18 are perused, then it is clear that the petitioner has left the matrimonial home for good with the intention of setting up a permanent residence in Mumbai. The minor child is with the petitioner. It is then pointed out that if Clause 17 of the Letters Patent of this Court is considered read with section 3 of the Guardians Act, it is this Court which will have jurisdiction to hear and decide this matter. It is also pointed out that the question is a mixed question of fact and law which this Court should not decide at this stage but defer its decision on merits. It is next contended that at any rate even while considering the petition on the issue of jurisdiction what the Court must consider is the interest of the minor child. Learned Counsel has relied on various judgments in support of his contention. The same will be adverted to while deciding the issue in controversy.
4. In so far as the issue pertaining to jurisdiction is concerned and whether it can be decided at this stage will be dealt with first. The respondent h
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