Judicial impropriety and procedural irregularities can vitiate a judgment, leading to its setting aside and remittance for de novo consideration.

ORDER :

Shree Chandrashekhar, J.

Guardianship Case No. 576 of 2015 was instituted by the mother of Arijita Das seeking appointment as legal guardian of her daughter.

2. In her petition filed under section 7 read with section 17 of the Guardians and Wards Act, 1890, Jyoti Das averred that she gave birth to Arijita Das on 4th November 2004. Her daughter subsequently came in custody of her husband who sent her to Delhi where her daughter started residing with her uncle. Later in time, she started a beauty parlour for her livelihood and now being capable of taking care of her daughter she wanted that she should be appointed legal guardian of her daughter. She further averred that her husband was suffering from liver cancer and he tried several times to kill her. In one of the cases, her husband was arrested by the police and sent to judicial custody. She alleged that her husband had immoral relations with other ladies and was not taking care of the daughter. There are various allegations levelled by the wife against her husband on the basis of which she pleaded that her daughter must remain in her company by appointing her legal guardian of Arijita Das.

3. The petition was presented for registration on 22nd December 2015 and an application under Order VI Rule 17 of the Code of Civil Procedure (in short 'CPC') read with section 151 CPC was filed for incorporating the following facts under paragraph No.3A:

“3A. That the daughter of the applicant namely Arijita Das was taken birth at Mercy Hospital, Jamshedpur and she was lastly in custody of the applicant on 06.09.2008 of H. No. 14, Zone No.4, Birsa Nagar, Jamshedpur and she lastly met with the applicant on 07.02.2015 at Civil Court Campus, Jamshedpur by order of the learned Court in connection with Misc. Case No. 33/2011 in presence of one Bharti Banerjee and Sanjay Kumar Das.”

4. Guardianship Case No. 576 of 2015 was posted for admission before the Principal Judge, Family Court, Jamshedpur and by an order dated 6th February 2017 the suit was posted for hearing on the point of admission on 14th February 2017. The order dated 14th February 2017 records that the Court heard the counsel for the petitioner on the issue of jurisdiction (maintainability). The Principal Judge, Family Court, Jamshedpur proceeded to take note of the judgment of the Hon'ble Supreme Court in “Ruchi Majoo v. Sanjeev Majoo” (2011) 6 SCC 479 wherein the Hon'ble Supreme Court has held that the test for determining the jurisdiction is the ordinary place of residence of the minor and “intention” to make that place one's ordinary abode has to be looked into. The Principal Judge, Family Court, Jamshedpur, after recording that the minor child lived with her mother only for four years at Jamshedpur and for the larger part of her life she was at Delhi with her uncle came to form an opinion that the Court at Jamshedpur has no jurisdiction to entertain the petition under section 7 of the Guardians and Wards Act, 1890.

5. By an order dated 20th February 2017, Guardianship Case No. 576 of 2015 was dismissed on the ground that the Family Court, East Singhbhum at Jamshedpur has no jurisdiction to entertain the suit in terms of section 9 of the Guardians and Wards Act, 1890. The suit was dismissed with liberty to the applicant to file a “fresh suit” in the Court having jurisdiction under section 9 of the Guardians and Wards Act, 1890.

6. The appellant has challenged the aforesaid judgment dated 20th February 2017 passed in Guardianship Case No. 576 of 2015 on the ground of judicial impropriety – amongst other grounds.

7. We have perused the lower Court records and find that procedural irregularities were committed by the Court while dealing with Guardianship Case No. 576 of 2015. The proceedings in the said case disclose that an application for amendment was filed on 2nd June 2016 which was posted for hearing on several dates and finally by an order dated 23rd January 2017 the said application was allowed. We are quite surprised to se