Back
2015 Supreme(P&H) 956
PUNJAB & HARYANA HIGH COURT
R.P. Nagrath, J.
Kamal Maini - Appellant
Versus
Natasha and Ors. - Respondent
C.R. No. 6438 of 2014 (O&M)
Decided On : 29-05-2015
For the Appellant :Arun Jain, Senior Advocate and K.S. Sidhu, Advocate
For the Respondents:Munish Gupta, Advocate
The ordinary residence of the minor determines the jurisdiction of the court under Section 9(1) of the Guardian and Wards Act, 1890, with the welfare of the child being the paramount consideration.
Headnote:
Guardian and Wards Act - Jurisdiction - 1890 - Section 25
Fact of the Case:
The petitioner sought custody of the minor child under Section 25 of the Guardian and Wards Act, 1890. The respondents applied for return of the petition on the ground of want of territorial jurisdiction, stating that the child was residing with the mother at Hoshiarpur.
Finding of the Court:
The court found that the petition did not deserve to be accepted and held that the case should be tried by the Court at Hoshiarpur, where the child was residing with the mother.
Issues: The main issue was the determination of the territorial jurisdiction for the petition under Section 25 of the Act of 1890, considering the ordinary residence of the minor child.
Ratio Decidendi: The court relied on previous judgments to establish that the ordinary residence of the minor determines the jurisdiction of the court under Section 9(1) of the Act. It emphasized the welfare of the child as the paramount consideration for deciding territorial jurisdiction.
Final Decision: The petition was dismissed, and the case was transferred to the Court at Hoshiarpur, where the child was residing with the mother.
1. The petitioner has applied under Section 25 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act of 1890') to the Guardian Judge, Ludhiana seeking a direction to the respondents to hand over custody of the minor child, namely; Vivan Maini, who was about 6 1/2 years old at the time of filing of the said petition. Respondent No. 1 is the wife of petitioner and respondents No. 2 and 3, the parents and respondent No. 4 is the brother of respondent No. 1.
2. The respondents appeared and applied to the Guardian Judge under Section 9 (1) of the Act of 1890 for return of the petition on the ground of want of territorial jurisdiction. It was stated that petitioner and his family members turned out respondent No. 1 alongwith the minor child on 15.07.2014 by giving her severe beating as she was not able to meet the demand of ` 10 lacs. She had no shelter and thus came to her parents' house at Hoshiarpur with the minor child. The child was admitted in Toddlers Home Study Hall School, Hoshiarpur and presently residing with the mother at Hoshiarpur. Reply (Annexure P-4) to the said application was filed by the petitioner. The learned Guardian Judge vide order dated 08.09.2014 allowed the application of respondents and transferred the petition to District Court, Hoshiarpur where the parties were directed to appear on 30.09.2014 for receiving further orders.
3. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 08.09.2014 passed by the Guardian Judge, Ludhiana.
4. I have heard learned senior counsel for the petitioner, learned counsel for the respondents and perused the paper-book.
5. Learned senior counsel for the petitioner vehemently contended that the minor child can be said to be ordinarily residing at Ludhiana, and simply because the child was illegally removed from the custody of petitioner on 15.07.2014 by the wife in his absence cannot oust the jurisdiction of Guardian Court, Ludhiana to entertain and try the petition. The marriage of petitioner and respondent No. 1 was solemnized on 10.12.2006 at Hoshiarpur. The child was born on 19.01.2008. The child has been residing at Ludhiana and getting education there. After narrating various incidents, it was stated in paragraph No. 6 of the petition (Annexure P-1) filed before the Guardian Judge that parents of petitioner were at Delhi on 15.07.2014. The petitioner left for his shop at about 06.30 p.m. while respondent No. 1 and the child were at home. At about 07.45 p.m. the petitioner received a telephonic call on his mobile phone that respondent No. 1 is going to Hoshiarpur alongwith respondents No. 2 to 4 and the minor son. She had locked the house and gave the keys to Chowkidar of the colony. The petitioner rang up respondent No. 1 many a times but she did not respond and switched off her mobile phone. Father of the petitioner also returned from Delhi at 09.00 p.m. it was learnt that respondents No. 2 to 4 had come from Hoshiarpur to take away respondent No. 1 and forcibly removed the minor child from custody of petitioner without his consent and knowledge. The petition under Section 25 of the Act of 1890 was presented on 24.07.2014.
6. It was stated that the child was studying at Jesus Sacred Heart School, Ludhiana where he studied in the Nursery, LKG and UKG. The child also performed extremely well in extra curricular activities. Due to the outstanding performance, the school authorities published his photograph highlighting the creative work of the child in the school prospectus. The voluminous record of the Jesus Sacred Heart School, Ludhiana was attached with the petition with regard to studies of the child in the school, which issued various certificates of merit. It was asserted in the reply to the application under Section 9(1) of the Act of 1890 that the respondents received summons in the petition from the Guardian Court on 06.08.2014 and the child wa
