The court emphasized the importance of establishing a valid cause of action and jurisdiction under the relevant legal provisions before filing a petition for custody.

Heard: This is an application filed by the petitioner, who is the father of the minor son A. Sai Karthick (12 years old), seeking for a permanent custody of the minor child from the respondent, under Section 25 of the Guardians and Wards Act, 1890 (for short GAWA) read with Clause 17 of the Letters Patent read with Order 21 Rules 2 and 3 of O.S. Rules.

2. The petitioner is a resident of Chennai. The respondent, the mother of the minor child, who is having the custody of the minor son, is a permanent resident of Kotucherry near Karaikal, which comes under the Union Territory of Puducherry.

3. When this petition is filed, the Registry raised several queries, including the question of maintainability of this O.P. as query No.5, which is as follows:

“5 The ordinary residence address of the Minor is out of this Court jurisdiction. It may be stated as to how this petition is maintainable.”

4. In response to the said query, the counsel for the petitioner had made the following, endorsement in the Court bundle, which reads as follows:

“Under Clause 17 of the Letter Patent, this High Court has jurisdiction to entertain the above O.P. for custody of minor child even permanently residing outside the jurisdiction of city of Madras, but within the territorial jurisdiction of this High Court. This principle has been well settled in the decision of our Hon’ble High Court, Gautam Menon v. Sucharitha Gautam (1991) 1 MLJ 212, which is annexed herewith.”

In the light of such endorsement, this O.P. was numbered and posted before this Court.

5. The cause of action set out in paragraph 18 of the O.P., contains the following averments:

“18. The cause of action for this petition arose at Chennai within the jurisdiction of this Hon’ble Court where the petitioner resides and from where the minor Said Karthic was taken away by the Respondent on 01.04.2005 and again subsequently on 28.04.2006; on 110. 1995 when the petitioner and the Respondent were married at Karaikal, and thereafter the marriage was registered at Chennai on 20.10.1995; when the minor son was born on 20.10.1997;…” (emphasis added)

6. Notwithstanding the endorsement and averments made by the learned counsel for the petitioner, this Court had doubts about the maintainability of the O.P. and hence directed the counsel for the petitioner to explain the jurisdiction of this Court in terms of Clause 17 of the Letter Patent.

7. The learned counsel for the petitioner in support of his submission primarily relied on the following two decisions of this Court:

.(a) Rajah of Vizianagaram v. Secretary of State and Other AIR 1937 Mad 51: (1936) 2 MLJ 873

.(b) Gautam Menon v. Sucharitha Gautam (1991) 1 MLJ 212

8. Since the O.P. was filed under Clause 17 of the Letter Patent, the said provision may be extracted below:

“17. Jurisdiction as to infants and lunatics and we do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these present.” (emphasis added)

9. Section 25 of the GAWA Act under which this O.P. was filed reads as follows:

“25. Title of guardian to custody of ward.-(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may pake an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.” (emphasis added)

10. Even though in the O.P. the cause of action paragraph the petitioner had averred that the minor child was taken away by the respondent on 01.04.2005 and again subsequently on 28.04.2006, in the body of the petition, there is no reference to any such act by the respondent. In the petition, he has