MANMOHAN, J (Oral)

1. Present civil revision petition has been filed under Section 115 of Code of Civil Procedure challenging order dated 13th March, 2009 whereby the Guardianship Court has held that it has the territorial jurisdiction to entertain and try respondent’s petition.

2. Mr. Garg, learned counsel for petitioner contends that Delhi Court has no territorial jurisdiction to entertain and decide the respondent-wife’s petition under Sections 7 and 25 of Guardians and Wards Act, 1890 for custody of the two minor children of petitioner and respondent. He submits that children are presently residing and studying in Chennai and, therefore, Court at Delhi does not have territorial jurisdiction to entertain and try respondent’s petition. In this context, he referred to the following judgments:-

A. Sanjay Agarwal v. Smt. Krishna Agarwal reported in wherein it has been held as under: “12. The learned District Judge, Merta while stating the conclusions as reproduced above, has not referred to the relevant of the provisions dealing with the question of jurisdiction but it is apparent that it is the declaration in Clause (a) of Section 6 of the Act of 1956 about the ordinary desirability of custody of a minor who has not completed 5 years of age to be with the mother that has been imported to hold that for such a child below 5 years in age, the application is maintainable before the Court in whose territorial jurisdiction the mother is residing at. The considerations as adopted by the learned District Judge have been supported by the learned Counsel for the non-petitioner-mother with the same argument that for a child of tender age, the custody has to be with the mother and hence the Court having jurisdiction over the place of residence of mother shall have jurisdiction to deal with the guardianship proceedings relating to such minor. To appreciate the submissions, it shall be apposite at this juncture to refer to the decisions cited by the learned Counsel for the non-petitioner.”

B. Mrs. Annie Besant v. G. Narayaniah & Anr. reported in AIR 1914 Privy Council 41 wherein it has been held as under:- “By the ninth section of that Act the jurisdiction of the Court is confined to infants ordinarily resident in the district. It is in their Lordships’ opinion impossible to hold that infants who had months previously left India with a view to being educated in England and going to the University of Oxford were ordinarily resident in the district of Chingleput. Further a suit inter partes is not the form of procedure prescribed by the Act for proceedings in a District Court touching the guardianship of infants. It is true that the suit was subsequently transferred to the High Court under Clause 13 of the Letters Patent, 1865, but the powers of the High Court in dealing with suits so transferred would seem to be confined to powers which but for the transfer might have been exercised by the District Court.”

C. Smt. Jeewanti Pandey v. Kishan Chandra Pandey reported in (1981) 4 SCC 517 wherein it has been held as under:- “12. In order to give jurisdiction on the ground of “residence”, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word “resides” is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one’s own dwelling permanently, as well as in its extended sense. In its ordinary sense “residence” is more or less of a permanent character. The expression “resides” means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has fixed home or abode. In Webster’s Dictionary, “to reside” has been de