JUDGMENT :

Vinod Prasad, J.

In a spousal dispute the most vulnerable position is that of the child who bears the most deleterious and detrimental consequence of acrimony between his/her parents, who seldom considered his/her future life prospects and to nurture him/her in healthy atmosphere full of love, affection and caring. Whichever argument, howsoever undignified it may be, is raised to get an edge over the other. In such disputes, one of the most contentious sections invariably sought to be explained, determined and decided is section 9 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”) concerning jurisdiction of the Court empowered to entertain a petition for the custody of the child/children, and the present appeal is one of such cases where section 9(1) of the Act has been mooted for determination in the given set of factual matrix stated herein below:-

2. Appellant-father Dilip Kumar Behera, resident of district Ganjam tied nuptial knot with respondent Puspanjali Behera on 23.02.2004 as per Hindu rites and customs at Aska in the district of Ganjam. Since the appellant was having his vocation at Rourkela, post-marriage the spouses came to Rourkela and stayed there. On 16.06.2008, the male child-Nilesh was born. Thereafter, family feud between the spouses cropped up and attained such severity that respondent-mother had to leave her husband, and she with Nilesh, the infant boy, returned to her parental house at Berhampur on 13.02.2010. Since that date, the spouses are living separately.

3. Since the dispute could not be resolved amicably and none of the parties budged, the appellant-husband resorted to legal proceeding by filing Civil Proceeding No. 219 of 2012 for a decree of judicial separation under the Hindu Marriage Act, 1955. Notice was issued to the wife, but it seems that she did not contest and consequently the decree of judicial separation favouring the appellant husband was passed on 13.02.2013. Thereafter, as it emerges on scanning of the record, that the appellant-father filed an application under Section 25 of the Act for restoring custody of his son claiming himself to be his natural guardian. As the pleading in this appeal goes, the reason slated by the appellant-father prompting him to file the application under Section 25 of the Act, was that the son Nilesh was reluctant to go with his ‘mother’, but the respondent with ulterior motive to take revenge with the appellant took away the son. The appellant has bitter experience in past of witnessing the barbarous assault upon the son by the respondent on silly maters. Nilesh is a meritorious student, who was reading in a well known convent school at Rourkela and his career was at stake. The appellant has got medical facilities from his employer besides education. Last but not the least, he had requested the respondent wife to bring back his son which went unheeded.

4. Learned Judge, Family Court, Rourkela registered appellant’s petition under Section 25 of the Act on 08.08.2013 as Civil Proceeding No. 207 of 2013 and directed the office to put up its note. On next two subsequent dates i.e., 16.08.2013 and 19.09.2013, the appellant-father was absent and no proceeding could take place to determine the jurisdiction of the Court to entertain the aforesaid application as the office had indicated that the same has been filed in a wrong jurisdiction. On 23.10.2013, the learned Judge, Family Court, Rourkela heard the appellant-father on the question of jurisdiction and vide impugned order dated 01.11.2013 rejected his contentions regarding vesting of jurisdiction in him and, therefore, directed to file the petition before the appropriate Court, which decision is now under challenge in this matrimonial appeal under Section 47(c) of the Act.

5. We have heard learned counsel for both the sides.

6. The grounds for challenge to the impugned order have been inked in the memo of appeal. It has been stated that the impugned order is illegal, arbitrary, err