Return of Plaint--Question of Jurisdiction--While deciding an application for question of jurisdiction petition not to be disposed of by deciding on merits to order return of plaint

M.M.S. Bedi, J.

The present appeal has been preferred under Section 19 of the Family Courts Act, 1984, challenging order dated 10.10.2017 passed by the Family Court, returning the petition under Section 25 read with Section 7 of the Guardians and Wards Act, 1890, for the grant of custody of the minor child Anish @ Deepanshu @ Rishi from the custody of the parents of respondent No.1, the ex-wife of the appellant.

2. Brief facts, which are relevant for the decision of the appeal are that the appellant had initially filed a petition for the custody of the minor child born out of his wedlock with Renu Sharma respondent No.1 at Ambala against the parents of Renu Sharma. Later on, he filed an application under Order 1 Rule 10 CPC read with Section 151 CPC, for impleading respondent No.1 in the petition as 3rd respondent being a necessary party.

3. During the course of proceedings at Ambala, Renu Sharma, respondent No.1, shifted the child to Patiala after the death of her father on 7.12.2016. She raised objections before the Court regarding the jurisdiction claiming that from the very beginning child would be deemed to be the ordinary resident of Patiala where she has been residing though for the time being for the sake of study, the child came to Ambala and resided with respondent, Smt. Kamla maternal grandmother of the child, like a child resides in hostel at different places for education purposes but ordinarily the child will be deemed to be residing in the custody of the parents.

4. While the Court was deciding the application for impleadment of Renu Sharma as a party on the basis of the pleadings in adjudication of the application under Order 1 Rule 10 (2) CPC, the learned District Judge, Family Court, Ambala, returned the petition for presenting the same at Patiala.

5. The said order has been challenged on the grounds that on account of respondent No.1 having remarried and given birth to three children, it will be in the interest and welfare of the child that the custody of the child should be handed over to him. The other ground which has been taken up in the appeal is that return of petition is illegal at the stage when the proceedings in petition under Section 25 of the Guardians and Wards Act, was at penultimate stage. It has also been challenged on the ground that the definition of 'permanent residence' under Section 9 (1) of the Guardians and Wards Act, 1890, would ordinarily be the place of residence of the minor which would determine the jurisdiction and such jurisdiction of the Court cannot be taken away by taking away the temporary residence of the child from one place to another. It was also argued that the appellant is resident of Kurukshetra. He had earlier filed a petition at Kurukshetra for the custody of minor child which was withdrawn with liberty to file the same at Ambala because the child was living at Ambala. Merely because during pendency of the petition, respondent No.1 had taken away the child to Patiala, the Court at Ambala will not lose jurisdiction and the petition could not have been ordered to be returned under Order 7 Rule 10 (1) CPC.

6. We have heard the counsel for both the parties at length and taken into consideration the written submissions made by respondent No.1 that the minor child Anish @ Deepanshu @ Rishi, does not even identify the appellant as his father and does not want to meet him and he is living a peaceful life. Respondent No.1 while appearing before the lower Court as RW.1 had stated that she stayed with the appellant only for six months and thereafter went to her parental house and the husband did not agree to provide any treatment during pregnancy. She had shifted to Patiala, but the child continued to study at Ambala at S.A. Jain Model School but later on was finally shifted to a school at Patiala. The appellant was guilty of his own wrong, as such was not entitled to any benefit.

7. We have considered the facts and circumstances of the case. Records had been called.

8. A pe