The High Court has jurisdiction to appoint a guardian of a minor residing outside its ordinary original civil jurisdiction, provided that the minor is a British subject and resides within the Bengal Division of the Presidency.

Lakshmanan, J.

1. This petition is filed by the husband against his wife, the respondent herein, under Sections 3 and 23 of Guardians and Wards Act, 1890 and Order 21, Rules 1 and 2 of Original Side Rules, read with Article 17 of Letters Patent, 1865 to direct the respondent to deliver the minor children to, the custody of the petitioner and for other reliefs. This petition was filed in this Court on 19.7.1990.

2. The respondent has filed a counter stating that this Court may not have jurisdiction to entertain this petition inasmuch as the children whose custody is sought by the petitioner, are permanently residing at Coimbatore outside the Ordinary Original Civil Jurisdiction of this Court.

3. When the matter was taken up for hearing on the earlier occasion the counsel for the respondent raised the very same objection and submitted that this petition filed in this Court is not maintainable. According to the learned Counsel, the wife is permanently stationed at Coimbatore and that she is working in some firm and find it very difficult to take leave from her employer. The children are also studying at Coimbatore for the last six years. Hence on the question of inconvenience of parlies this Court may not have jurisdiction to entertain this petition.

4. Per contra, Mr. Kothandaraman, learned Counsel appearing for the petitioner submitted that this Court alone has jurisdiction and to try the matters like this and in support of his contention, learned Counsel for the petitioner placed before me the following decisions reported in Rajah of Vizianagaram v. Secretary of State 71 M.L.J. 873 : 169 I.C. 189 : I.L.R. 1937 Mad. 383 : A.I.R. 1935 Mad. 51, Tarun Chandra Ghosh In re. A.I.R. 1930 Cat 598, Mahadeo Krishna Rupji In re. A.I.R. 1937 Bom. 98, Lovejoy Patel, In re. A.I.R. 1944 Cal. 433 and Pamela Williams v. Partrick Cyril Martin .

5. In Rajah of Vizianagaram v. Secretary of State 71 M.L.J. 873 : 169 I.C. 189 : I.L.R. 1937 Mad. 383 : A.I.R. 1935 Mad. 51, I he Division Bench of this Court has held as follows:

Under Clause 32, Letters Patent of 1890, the jurisdiction of High Court in regard to infants is plenary and is not subject to limitations as to persons or place. So the High Court can have jurisdiction over ever an infant though not of British birth and though residing outside limits of Presidency Town. But supposing that the jurisdiction of the Supreme Court over infants was confined to British subjects of British descent, the moment direct control was assumed by the Crown, every native of British India became ipso facto a British subject and from that lime onwards nothing could hinder the Supreme Court from exercising jurisdiction over native Indian infants in the mofussil. Clause 17 docs not impose as a condition the residence of the infant for ihe exercise of the jurisdiction thereunder. So a resident of Madras can invoke the jurisdiction of the High Court for the protection of his parental rights and it is immaterial where the children are residing so long as they are within the Presidency.

In Tarun Chandra Ghosh In re. A.I.R. 1930 Cal. 598, learned single Judge of the Calcutta High Court has held as follows:

There is no restriction in the powers granted to either the Supreme Court or the High Court which limits the exercise of guardianship jurisdiction to the town or to European British subjects, and even if any such limitation exists, it does not apply where person who is outside the limits of ordinary jurisdiction or who is not a European British subject desires to avail himself of the jurisdiction of the Court and there is no opposition there to.

In Mahadeo Krishna Rupji In re. A.I.R. 1937 Bom. 98, the Bombay High Court has held that the High Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor's property is an undivided share in the family property apart from the Guardians and Wards Act. It is further held that the Court has jurisdiction to sanction