IMPORTANT POINT
Jurisdiction for custody of a minor must be determined by the child's ordinary residence, as per Section 9 of the Guardians and Wards Act, 1890.

JUDGMENT :

Sujit Narayan Prasad, A.C.J.

Prayer

1. This petition under Article 227 of the Constitution of India is directed against the order dated 10.04.2024 passed by the Addl. Principal Judge, Addl. Family Court-II, Ranchi, by which, the petition filed by the respondent, (petitioner herein) under Order 7 Rule 11 of the CPC and Section 9 of Guardians and Wards Act, has been rejected.

Facts

2. The brief facts of the case, as per the pleading made in the petition, required to be enumerated, which reads as under:-

3. It is the case that the marriage between the petitioner wife and the respondent husband was solemnized according to the Hindu Rites and Ceremonies on 10.11.2006 at Delhi. Out of this wedlock, one male child namely Aayan Pratap Singh was born on 16.07.2009. After marriage, they lived together almost for ten years. The petitioner was subjected to cruelty physically/mentally and thereafter in February, 2017 by playing deceit, shifted with the petitioner wife along with the minor son in a rented accommodation in East Delhi and admitted the minor son in a School. Thereafter, after sending the petitioner out for an interview, the respondent with the help of his sister and brothers took the minor son with all jewellery, valuable items including educational certificate.

4. The petitioner wife, upon this, filed complaint case before the Police and before the CAW Cell including W.P. (Crl.) No.2747 of 2017 before the Delhi Court to bring back the minor son.

5. It is the further case that the Original Suit seeking custody of the minor child was filed by the respondent husband with the suppression of material facts about the place of marriage of the parties, place of ordinary residence of the petitioner and minor child, the place of education of minor child and pending matrimonial dispute at Delhi since 2017.

6. It appears from the suit being Original Suit No.539 of 2023 that the respondent husband has not approached the Ld. Family Court at Ranchi with clean hands and the aforesaid Original Suit was another attempt made by him to get the custody of the minor child from the legal custody of the petitioner wife.

7. It is evident from the factual aspect as per the pleading made in the petition that the respondent husband has preferred a suit being Original Suit (Guardianship) No.539 of 2023 for seeking custody of the minor child.

8. The petitioner has filed a petition under Order 7 Rule 11 of the CPC raising the issue of maintainability of the suit before the Family Court at Ranchi.

9. The ground has been taken that although, the custody of the minor has been handed over by the order passed by the Delhi High Court in the writ of habeas corpus and further, the Delhi High Court has passed an order by directing the respondent/husband to bear all the expenses towards the education of the child besides giving Rs.10,000/- per month for other expenses of the child which includes the food and clothing for the child.

10. The husband has preferred Original Suit being Original Suit (Guardianship) No.539 of 2023, wherein, it has been alleged that the petitioner is a careless mother and does not look after the proper upbringing of the child.

11. The said petition has been objected by the petitioner wife by filing a petition under Order 7 Rule 11 of the CPC on the ground that the jurisdiction to seek such direction of custody lies with the Court having in the Delhi in view of the fact that the minor resides at Delhi in Shahadra.

12. The learned Court has considered the petition filed under Order 7 Rule 11 CPC but has dismissed the same on the ground that the issues raised by the respondent, petitioner herein, are the mixed question of law and facts and the said issue will only be decided after adducing the evidence of the parties, which is the subject matter of the present petition.

Arguments of the petitioner

13. The petitioner has argued in-person and has submitted by referring to the document as appended at Page-111 to the paper book. The said document is adm