IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 409 of 2010 Date of decision: 17.3.2011 Suman Bala …Petitioner. Versus Vipin Kumar ….Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Jagdish Thakur, Advocate. For the respondent: Mr. Y.P.Sood, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order of the learned Additional District Judge (Fast Track Court) Una, whereby he rejected the petition filed by the petitioner solely on the ground that the Court at Una had no territorial jurisdiction to decide the matter. 2. The undisputed facts are that the petitioner herein was married to the respondent at Una and out of this wedlock two children were born. The petitioner alleged that she was maltreated by her husband and thereafter she left the house of her husband and came to her parental home. Admittedly, the matrimonial home is at Kullu and not at Una. It is also not disputed that the daughter is living with the mother and the son, 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 who is more than five years old, is living with the father. The application was filed for custody of the minor son. This application has been rejected on the ground that since the minor son resides at Kullu, it is only Court at Kullu had jurisdiction. 3. Shri Jagdish Thakur, learned counsel for the petitioner urges that the learned trial Court has misdirected itself in applying Section 9 of the Guardians and Wards Act and according to him since the application was filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 the same was maintainable at Una. 4. This question is no longer in res integra. This Court in Himanshu Mahajan vs. Rashu Mahajan and others 2007(3) Shim LC 399, dealt with a case wherein the application had been filed under the Guardians and Wards Act, 1890 but while deciding the case this Court specifically made reference to Section 6 of the Hindu Minority and Guardianship Act, 1956 and after considering a number of authorities on the point held as follows:- “14. With utmost respect, I disagree with the aforesaid contrary view taken and expressed by the Karnataka and Punjab and Haryana High Courts. Clause (a) of Section 6 of 1956 Act merely stipulates and provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother (emphasis supplied by me). The use of the word 3 “ordinarily” in Clause (a) clearly indicates legislative intent that even though in normal course and normal circumstances the custody of a child below the age of five years should normally be with the mother, it cannot be mandatorily so in every fact situation, irrespective of various reasons, grounds and circumstances. Yes, it is very desirable that in normal circumstances the custody of an infant should be with the mother, she being the child’s natural guardian of the first choice, but there can be circumstances galore where it may not either be possible or desirable for such custody of the infant child being with the mother. For instance, the mother may not be leading chaste life. She may be immorally entangled with some one else, leading to estranged matrimonial relationship with her husband, the father of the child. She may be sick, physically or mentally or may be suffering from any disability, not conducive for ideal upbringing of the child. She may financially be a destitute, with hardly any means to maintain herself, what to speak of properly maintaining the child. On the other hand, the father may not be suffering from any of the aforesaid or other negative characteristics and may be leading a life which is very conducive for the upbringing of the child. The aforesaid provision in Clause (a) of Section 6 of 1956 Act, therefore, cannot be held to be of mandatory or binding nature. 15. Section 6(a) of 1956 Act and Section 9 of 1890 Act operate in different fields. Both are independent of each other. Whereas Section 6 of 1956 Act deals with the issue of the natural guardianships of a Hindu minor, and Clauses (a), (b) and (c) define the natural guardians, Section 9 of 1890 Act lays down the rule with respect to the territorial jurisdiction of the Court where the application for the custody of a child has to be filed. This Section clearly relates to and refers the “ordinary residence” of the child and says that only such Court shall have the jurisdiction to entertain the petition where the child “ordinarily resides”. The issue of the natural guardianship of the 4 child being the subject matter of Section 6 of 1956 Act cannot be thrust upon, linked with or imported into Section 9 of 1890 Act. If the Legislature intended that the residence of the mother or the father of the child should determine the ordinary residence of the child himself, it should have used the expression to that effect in Section 9 of 1890 Act. It did not do so. It used and specified the expression “ordinary residence” of the child himself. The expression is unambiguous and totally certain as well as clear. Taking a cue from the observations made by their Lordship of the Supreme court in the case of Smt. Jeewanti Pandey, AIR 1982 SC 3 (supra), it can safely be said that the expression “ordinary residence” must mean the actual, physical place and not a legal or constructive residence.” 5. The Court clearly held that the two acts are separate and the principles of one act cannot be brought into the other act. That brings us to the question as to where the petition in the present case would lie. It is well settled law that in civil proceedings, for redressal of a grievance a suit can be instituted at a place where either the cause of action or part of the cause of action has arisen or where the defendant resides. The defendant resides at Kullu. What is the cause of action for filing a petition for custody of the minor. The cause of action is against the husband and is the alleged beatings given by the husband which were given at Kullu. Even as per the averments made in the petition virtually no part of the cause of action has arisen at Una and the only ground for filing the 5 petition at Una was that the petitioner mother was residing at Una. 6. In my view this by itself is not sufficient to clothe the Court at Una with jurisdiction to try the proceedings. Therefore, the order is upheld. It is, however, made clear that the petitioner shall be at liberty to file appropriate proceedings in the Court of competent jurisdiction. The petition is accordingly dismissed. No order as to costs. 17th March, 2011 (Deepak Gupta) ™ Judge