1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FAMILY COURT APPEAL NO. 8 OF 2010 Rajesh s/o Ashokrao Baviskar, Aged031 years, Occ: Service, R/o. Plot No.20, Sadgurukrupa Grahnirman Sanstha Maryadit, N-8, B, CIDCO, Aurangabad. ...APPELLANT VERSUS Sow. Kavita w/o. Rajesh Baviskar, Age: 26 years, Occ: Household, R/o. C/o. Jagdish s/o Atmaram Vispute, C-2, Laser Point. In front of New Petrol Pump, Manikpur (West), Vasai Road, Taluka Vasai, Dist. Thane. ...RESPONDENTS ... Shri. B.K. Patil, Advocate for Appellant. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVED ON :28/09/2010 PRONOUNCED ON: 06/10/2010 ORDER : (PER K.K. TATED, J.) 1. Heard learned counsel for the appellant. 2 2. In this Family Court Appeal, the appellant - original petitioner challenges the decision rendered by the learned Principal Judge, Family Court, Aurangabad in Petition No. D-06/2008 decided on 30-03-2010, whereby it has disallowed the application for the custody of minor daughter, on the ground of jurisdiction as well as, on merits and directed return of the petition for presentation to the appropriate forum. 3. The Family Court Appeal is finally decided at the stage of admission, without sending for the record and proceedings, as the question to be decided is purely a question of law that whether as per the provisions of Section 9(1) of the Guardians and Wards Act 1890, a Family Court at Aurangabad has territorial jurisdiction to entertain the appellant's petition for the custody of his minor daughter. 4. The marriage of the appellant and the 3 respondent was solemnized at Jalgaon on 14th May 2006 as per Hindu rites and thereafter the parties went to reside at Aurangabad. During the wedlock a female child was born on 16th March 2007. Thereafter the relations of the parties got strained and respondent on 30th September 2007 with the child went to reside at the house of her parents at Vasai Road, Tal. Vasai Dist. Thane. 5. While the respondent and child were residing at Vasai Road the appellant filed a petition under Section 26 of the Hindu Marriage Act, 1955 for judicial separation in the Family Court at Aurangabad, and also on 16-06-2008 filed petition for the custody of the child. 6. The appellant's petition for the custody of the minor was decided on 30-03-2010. Family Court at Aurangabad found that a child at the time of presentation of the petition ordinarily resided at Vasai Road in Thane District and as such, in view of the provisions of Section 9(1) of the Guardians 4 and Wards Act, the Court at Aurangabad has no jurisdiction to entertain the petition and hence ordered the return of the petition to the petitioner for presenting before the proper Court. 7. Shri. B.K. Patil, learned Counsel appearing on behalf of the appellant submits that impugned order dated 30-03-2010 passed by the Family Court is against justice, equity and good conscience and same is liable to be set aside. He submits that the trial Court should not have decided all issues at the time of deciding territorial jurisdiction for filing Petition under Section 25 of the said Act for custody of minor daughter. He submits that in view of Section 9A and Order XIV Rule 2 of the Code of Civil Procedure, the trial Court erred in deciding all issues on merits. He submits that in view of both these provisions, the trial Court should have decided only preliminary issue, without giving any reasons on merit in respect of other issues. He further submits that the trial Court has not passed appropriate order as per 5 Order VII Rule 10 of the Code of Civil Procedure, at the time of returning the Petition to the appellant for presentation before appropriate forum. He submits that in view of Order VII Rule 10 of the Code of the Civil Procedure, the trial Court should have transferred the Petition to the appropriate Court with a direction to the parties to appear before that Court on a particular date. On those submissions, the learned Counsel for the appellant submits that order passed by the trial Court is liable to be set aside. 8. We have heard the learned Counsel appearing on behalf of the appellant at length. His main contention is about the jurisdiction of the trial Court under Section 9(1) of the said Act. He submits that in view of Section 9(1) of the said Act, the Petition is maintainable where ordinarily the parties/minor is residing. He submits that initially the respondent alongwith the minor child resided at Aurangabad and therefore, Family Court, 6 Aurangabad has jurisdiction to entertain the Petition for custody of minor child under the said Act. He further submits that as the Petition for Restitution of Conjugal Rights under Section 26 of the Hindu Marriage Act, 1955 is pending in Family Court at Aurangabad, the Petition for custody of the minor daughter is also maintainable at Family Court, Aurangabad. 9. To consider the submissions made by the learned Counsel appearing on behalf of the appellant, it is appropriate to reproduce Section 9 of the Guardians and Wards Act, 1890 and Section 9, Order XIV Rule 2 and Order VII Rule 10 of the Code of Civil Procedure. "9. Court having jurisdiction to entertain application. (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District 7 Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if, in its opinion, the application would be disposed of more justly or conveniently by any other District Court having jurisdiction." 8 "9. Courts to try all civil suits unless barred-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place." 9-A. Where at the hearing of 9 application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue- (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of receiver or otherwise, made in any suit and objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as 10 possible and shall not in any case be adjourned to the hearing of the suit. (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending, determination by it of the preliminary issue as to the jurisdiction." "Order VII... Rule 10. Return of plaint (1) Subject to the provision of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted." "ORDER XIV... Rule 2. Court to pronounce judgment on all issues- (1) Notwithstanding that a case may be disposed of on a 11 preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 10. The learned Counsel appearing on behalf of the appellant relied on the judgment in the matter of 12 Sudesh w/o Sushilkumar Handa vs. Abdul Aziz s/o Umarbhai and another reported in 2001(1) Mh.L.J. 324, in support of his submission that the preliminary issue to be decided in the first instance before proceeding to decide the matter on any other issue. He particularly relied on Para-10 of the judgment, which reads thus : "10. As aforesaid, the question whether the suit is barred by limitation, in my view, is a question which would expressly touch upon the issue of jurisdiction of the Court, for, if the suit is barred by limitation, the Court trying such a suit is precluded to pronounce upon the merits of the contentions. With a view to avoid multiplicity of proceedings as observed by the Division Bench of this Court, it would be, therefore, essential that issue of jurisdiction in the context of suit being barred by limitation, is framed and 13 decided in the first instance before proceeding to decide the suit on any other issue. If the said issue is answered against the plaintiff, then it would be wholly unnecessary for the trial Court to undertake the extensive exercise of recording of evidence with regard to the rival stand on the merits of the case. This would enable the Court to decide the proceedings with utmost dispatch and would sub-serve the purpose with which section 9A has been introduced by the Maharashtra Amendment Act, 1977." 11. We have gone through said judgment. It is not applicable to the facts and circumstances of the present case. In this authority, the learned Single Judge held that with a view to avoid multiplicity of the proceedings, it would be essential that the issue of jurisdiction in the context of suit being barred by limitation, is framed and decided in the first instance before 14 proceeding to decide the matter on any other issue. In the present case, according to the petitioner, as the respondent and her child before leaving for Vasai Road to reside with the parents of the respondent, resided with the petitioner at Aurangabad and therefore, Family Court at Aurangabad had jurisdiction to entertain the petition. Therefore, the Family Court framed issues on all points including jurisdiction of Court and referred all issues for trial and after recording evidence, recorded finding on all those issues. As the Court found that child at the time of filing the petition ordinarily resided at Vasai Road in Thane District, the Court at Aurangabad had no jurisdiction to entertain the petition and hence the petition was ordered to be returned to the petitioner for presenting before the proper Court. 12. Our High Court in the matter of Deviprasad s/o Bhimanchandra Mukherjee vs. Smt. Sandhyadevi w/o Deviprasad Mukherjee and another reported in 15 1987(1) Bom.C.R. 83, (Nagpur Bench) held that Petition for guardianship of minor would lie in District Court where the minor ordinarily resides and not where the appellant resides. Para-5 of the judgment reads thus : "5. Before I proceed to consider the merits of the contentions raised on behalf of the applicant it necessary to refer to the most important question relating to the jurisdiction of the learned trial Court either to entertain the application or to proceed with the same. If the learned trial Court has no jurisdiction in the mater in my view it would be futile to keep the proceedings pending in the trial Court by exercising the power under Section 10 of the C.P.C. I am told at the bar that the said question was raised on behalf of the non applicant No.1 before the trial Court but the consideration of the same 16 postponed. Section 9(1) of the Act provides that an application with respect to guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In the instant case the minor appears to be residing with the non applicant No. 1 at Tejpur as is clear from the orders in the matrimonial case referred to above granting custody of the minor to the non applicant No.1. If it is, therefore, found that the minor ordinarily resides at Tejpur then the District Court at Nagpur will have no jurisdiction to consider the application of the application for guardian of the person of the minor daughter." 13. In another judgment in the matter of Smt. Shahnaz Shaharyari @ Shirin Shaharyari vs. Dr. Vijay s/o Yashwant Gawande reported in 1996(1) 17 Bom.C.R.473 (Nagpur Bench), held that the application in respect of guardianship of the person of a minor requires to be filed where the minor ordinarily resides. Para-16 of the judgment reads thus : 16. The alternative relief sought is to transfer the execution proceeding pending before the Family Court, Bombay to the Court of the District Judge, Nagpur, where the proceedings for declaration of permanent guardianship and custody of the children are pending. Shri. Bobde, the learned Counsel for the respondent specifically submitted that the respondent is ready to withdraw the proceeding instituted in the Court of the District Judge, Nagpur in Civil Suit NO. 679 of 1992, under Sections 6 and 7 of the Hindu Minority and Guardianship Act read with Section 17 and 25 of the Guardians and Wards Act, 1890. The learned Counsel invited my attention to the definition of the "the Court" in section 4(5) of the 18 Guardians and Wards Act which reads as follows : (5) "the Court" means - (a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or (b) where a guardian has been appointed or declared in pursuance of any application - (i) the Court which, or the Court of the Officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or (ii) in any matter relating to the person of the Ward the District Court having jurisdiction in the place where the Ward for the time being ordinarily resides; or (c) in respect of any proceeding 19 transferred under section 4-A, the Court of the Officer to whom such proceeding has been transferred. Section 9 of the Guardians and Wards Act, 1980 deals with jurisdiction of the Court to entertain the application. Section 9(1) reads as under. "9.(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the ordinarily resides. It is, thus, clear that an application in respect of guardianship of the person of a minor requires to be filed where the minor ordinarily resides. Thus, by no stretch of imagination it could be said that respondent has succumbed to the jurisdiction of the Nagpur Court. Statute provides that application for appointment of guardian be made where the minor 20 ordinarily resides. In the instant case, the minors are residing at Nagpur and therefore the proceedings were instituted before the District Judge, Nagpur." 14. It is crystal clear from both those authorities that the Petition under Section 25 of the said Act, for custody of minor lies where the minor ordinarily resides at the time of filing the Petition. Therefore, the view taken by the trial Court that the Family Court at Aurangabad has no jurisdiction to entertain the appellant's Petition under Section 25 of the said Act, for custody of the minor needs no interference. 15. The other submissions made by the learned Counsel appearing on behalf of the appellant in respect of Order XIV Rule 2, Section 9 and Order VII Rule 10 of the Code of Civil Procedure are also not acceptable. Jurisdiction in its classical concept means the power to hear and determine a cause, to adjudicate and exercise any 21 judicial power in relation to it; in other words by jurisdiction meant the authority on which a Court has to decide a case i.e. litigated before it or to take cognizance of the matter presented in a formal way for its decision. Section 9 of the Code of Civil Procedure says that Civil Courts have jurisdiction to decide all civil disputes unless and until it is expressly barred by other provisions. In the present case, the appellant filed application under Section 25 of the said Act, for custody of minor child. Once the application is filed under the said Act then all provisions of the said Act are applicable to those proceedings. Therefore, in view of Section 9(1) of the said Act jurisdiction comes to Court where minor child ordinarily resides. 16. The objection of the learned Counsel appearing on behalf of the appellant about deciding all the issues by the trial Court alongwith preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure is not sustainable because under Order 22 XIV Rule 2 of the Code of Civil Procedure, the Courts have discretionary power either to decide preliminary issue alone or all other issues on its merits on the facts and circumstances of the case. From bare reading of Order XIV Rule 2 of the Code of Civil Procedure, it is easily seen that there is an obligation cast upon the Courts that even though a case may be disposed of on a preliminary issue the Courts shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. In other words, the obligation to decide a question of law as a preliminary issue if that decision disposes of the case or part of the case is no longer there. A duty is cast upon the Court that it must proceed to hear all the issues and pronounce judgment on them. There is however, a small exception carved out to the above provision. The Court may try an issue relating to the jurisdiction of the Court or to the legal bar to the suit as a preliminary issue but this is more in the nature of a discretion rather than a duty and the Court is not bound to try an issue, 23 despite the provision contained in sub-rule (2) of Rule 2 of Order XIV of the Code. The words "it may try" are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue. 17. Recently Division Bench of this Court in the matter of Jagdish Hari Thatte & Ors. vs. Municipal Corporation of Greater Bombay & Anr. reported in 2007(1) Bom. C.R.577, held that as per wording of Rule 2(2) of Order XIV, when a Court decides not to dispose of case on preliminary ground of jurisdiction it has to pronounce judgment on all issues so that Appellate Court if rejects plea of jurisdiction it may not be handicapped in deciding other issues for which evidence is already recorded in lower Court. Para-10 of the judgment reads thus : "10. A perusal of sub-rule (2) of Rule 2 of Order XIV makes it 24 clear that when issue of law and of fact arise in the same suit and the Curt is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue first when that issue relates to (a) jurisdiction of the Court; or (b) the bar to the suit created by any law for the time being in force. Thus, it is not disputed that issue of jurisdiction of the Court can be tried as a preliminary issue. But, now in view of Order XIV, Rule 2(2) of the said Code it gives discretion to the Court. It is not mandatory on the Court to decide the question of jurisdiction or other issue relating to the maintainability of the suit as preliminary issue. If we carefully read the wording of the issue that has been referred to this Division Bench for consideration, it is very clear that it contemplates the situation where the Court has decided not to try the issue 25 with regard to jurisdiction as preliminary issue and parties have in fact led evidence on all the issues and the suit is ready for final judgment. It is also needless to say that in view of the provisions of Order VII, Rule 10, plaint can be returned at any stage. It obviously means that it can be done so even while deciding the suit finally. The main question is whether it is necessary for the Court to record finding on all issues when the Court has not followed the course contemplated under Order XIV, Rule 2(2) of the said Code". 18. In view of the above mentioned discussion, we do not find any substance in the submission made by the learned Counsel appearing on behalf of the appellant in respect of Order XIV Rule 2 of the Code of Civil Procedure. 26 19. The submission made by the learned Counsel appearing on behalf of the appellant on the point of Order VII Rule 10 of the Code of Civil Procedure is also not acceptable because admittedly in the present case, the respondent is residing at Vasai Road, District Thane alongwith minor daughter. Therefore, in view of Section 9(1) of the said Act, Family Court, Aurangabad has no jurisdiction to entertain the Petition preferred by the appellant under Section 25 of the said Act. Once the Court comes to the conclusion that it has no jurisdiction to entertain the Petition, then the Petition can be returned to the appellant for presentation in appropriate Forum under Order VII Rule 10 of the Code of Civil Procedure. Order VII Rule 10 of the Code of Civil Procedure clearly applies in the instant case. Order VII Rule 10 of the Code of Civil Procedure provides that subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been 27 instituted. In the instant case, the trial Court rightly held return of the Petition to the appellant for presentation before appropriate forum in view of Section 9(1) of the said Act. 20. In the facts and circumstances of the case, we do not find any substance in the present appeal and the same is dismissed with no order as to costs. sd/- sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] sut/OCT10/fca8.10