FAO No. 1512 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 1512 of 2008 Date of decision: September 05, 2009 Anup Kumar Takiar ........ Appellant Versus Ritu Takiar .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Arvind Mittal, Advocate for the appellant Mr. Arvind Sharma, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is an appeal against the order dated 01.04.2008 passed by the Guardian Judge, Jalandhar, vide which the petition under Section 25 of the Guardian and Wards Act, 1890 (hereinafter referred as 'the 1890 Act') to hand over and deliver the custody of the minors was dismissed on the grounds of jurisdiction by holding that the Court at Delhi and not the Guardian Court at Jalandhar has the territorial jurisdiction, to decide the present petition. Learned counsel for the appellant submitted that the parties were living at Jalandhar after their marriage. Both the minor children were also FAO No. 1512 of 2008 2 residing at Jalandhar. The respondent wanted to settled at Delhi. Therefore, on the pretext to attend the marriage of some relative, which took place on 22.04.2002, the respondent went to Delhi, but she did not return and refused to come back. The respondent had also taken the minor children along with her and continued to keep them in her custody at Delhi. It was submitted that she had taken the children from Jalandhar to Delhi by misleading the appellant. Learned counsel referred the judgement of the Delhi High Court rendered in the case of 'Paul Mohinder Gahun v. Mrs. Selina Gahun', 2007(1) RCR (Civil) 129. In that case, wife, husband and minor child of the age of five years were all Canadian citizens. The wife came to India along with the minor child and started residing at Delhi. It was held that the Delhi Court has no jurisdiction, as the child cannot be said to be “ordinarily residing in Delhi”. A reference was also made to the judgement of this Court rendered in the case 'Ramesh Bhardwaj v Ram Saran Dass', 1998(2) R.C.R. (Civil) 109 ,wherein it was held that the jurisdiction lies where the minor “ordinarily resides” which shall mean the jurisdiction of District Court where the minor would have continued to remain, but for his removal. Learned counsel for the appellant further submitted that the judgement of the Orissa High Court rendered in the case of 'Konduparthi Venkateswarlu and others v. Ramavarapu Viroja Nandan and others', AIR 1989 Orissa 151 was referred to by the Additional District, but was not properly understood, the same reads as follows:- “Since the permanent residence of the father and also of the minor child is at Berhampur and they had in the fact remained in Orissa and it is only his father who had taken him along with his mother to Visakhapatnam for the treatment of his mother, the ordinary place of residence of the minor must be held to be at Berhampur and, FAO No. 1512 of 2008 3 therefore, the District Judge, Ganjam was right in his conclusion that he has jurisdiction under S 9 of the Act to entertain the application for the custody of the child.” Learned counsel for the respondent, on the other hand, relied on the judgement rendered in the cases of Pooja Badhadur v. Uday Bahadur, 1999(3) RCR(Civil) 219, Acharya Shri Kundan Maharaj v. Smt. Indra, 2004(4) RCR (Civil) 832, Smt. Sunita Jain and others v. Mittar Sain Jain and another, 2003(1) RCR (Civil) and Abraham G Karimpanal v. Nil, 2004 (3) RCR (Civil) Karnataka DB. Learned counsel for the parties have been heard. It is apparent from the judgement cited by the learned counsel that the jurisdiction of the Court to decide the petition under Section 25 of the 1890 Act will depend on the facts and circumstances of each case. In view of the same, it would be necessary to see as to whether the children were forcibly removed by the respondent or the respondent mother was forced by the circumstances to stay away from her matrimonial home. From the facts and pleading before this Court, nothing has been brought to the notice, which may lead the Court to conclude that the minor children were forcibly removed by the respondent or were forced to leave the house of the father, except mere allegations. On a specific query by the Court, learned counsel for the appellant admitted that the divorce petition had been filed by the appellant against the respondent wife. The written statement was filed by the respondent before the Guardian Court stating therein that she was tortured and was thrown out by the appellant from the matrimonial home along with minor children and now she was residing with her parents along with the minor children at Delhi. FAO No. 1512 of 2008 4 The judgement of the Apex Court rendered in the case of Pooja Badhadur (supra) was referred to, wherein the minors were residing with their father at Delhi and this Court took the view that the proceeding for custody of the minors by the mother, would lie under the 1890 Act at Delhi and not in the Court at Chandigarh. Hon'ble the Apex Court, in that case, up held the order by noticing that the minors were residing with their father at Delhi, therefore, no fault can be found with the order. This High Court in the case of Sunita Jain (supra) held that the paramount consideration to decide the territorial jurisdiction is welfare of the children, and thus, it would be appropriate to initiate proceedings at the place where the minor resides. While holding so, it was observed as under:- “Therefore, for all intents and purposes, the minors were in custody of the petitioner would be deemed to be residing at Rohtak. Even otherwise, the paramount consideration for deciding the territorial jurisdiction namely welfare of the children would also lean towards taking the view that instead of minors travelling from Rohtak to Bhiwani, it would be appropriate, if these proceedings are initiated in the courts at Rohtak. It may not be for the welfare of the minors to travel to Bhiwani because in order to ascertain the intention of the children, the courts have to summon the minors at an appropriate state to the proceedings. Therefore, the order passed by the Addl. District Judge, Bhiwani is liable to be set aside and it is held that the Courts at Bhiwani would not have any territorial jurisdiction to proceed with the application of the respondent for the custody of the children.” FAO No. 1512 of 2008 5 A Division Bench of Karnataka High Court in the case of Abraham G Karimpanal (supra) took into consideration the judgement rendered by the Apex Court in the case of Smt. Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3, while deciding that a family court where the minor whose guardianship is sought ordinarily residence is the Court, which should entertain the application under Section 9 of the 1890 Act. Para 13 and 14 of the aforesaid judgement as reproduced from the judgement rendered by the Apex Court in Smt. Jeewanti Pandey's case (supra) read as under:- “13. The words 'ordinarily resides' fell for interpretation of the Apex Court and High Courts in large number of cases under various statute. In Smt. Jeewanti Pendey's case (supra), the Supreme Court, dealing with a situation where jurisdiction of a Court was based on 'the ground of residence' has observed in para 12 as under:- 12. In order to give jurisdiction on the ground of 'residence', something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word 'reside' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense 'residence' is more or less of a permanent FAO No. 1512 of 2008 6 character. The expression 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster's Dictionary, 'to reside' has ben defined as meaning 'to dwell permanently or for any length of time', and words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person canot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. For health or business or for a change, If a person live with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides.” 14. Having construed the word 'residence' in paragraph 12, the Apex Court proceeded to hold further in para -13, thus: “It is plain in the context of clause (ii) of Section 19 of the Hindu Marriage Act, 1955 that the word 'resides' must mean the actual place of residence and not a legal or constructive residence, it certainly does not connote the place of origin. The word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and FAO No. 1512 of 2008 7 cannot be read in isolation. It follows that it was the actual residence of the appellant at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora had jurisdiction or not.” Much stress has been laid on the words 'minor ordinarily resides', as given in Section 9 of the 1890 Act. There is nothing to suggest at this stage that the children have been forcibly removed from Jalandhar. Hence, the judgement cited by the learned counsel for the appellant is not applicable in the facts of present case. In the facts of the present case, there is no doubt that the minors are residing with the mother since the year 2001. The petition under Section 25 of the 1890 Act was filed by the appellant on 29.04.2004, i.e almost after a gap of three years. The date when the respondent shifted to Delhi is disputed. According to the appellant, she left on 02.02.2002. Even if the date, as stated by the appellant is accepted, still, the petition was instituted after more than two years. Admittedly, the minors at that time were around the age of 3 and 4 years, respectively. The minors of that age are to be in the custody of the mother. They will reside, wherever the mother is residing. The mother, herein, is residing at Delhi since 2001/2002. Thus, the residence of the minors has to be understood as Delhi and not Jalandhar. Looking from any angle, it canot be disputed that the children are residing in Delhi. They are studying at Delhi. They cannot be expected to miss the school to travel to Jalandhar to attend Court. The Guardian Court at Jalandhar has rightly dismissed the same on the question of territorial jurisdiction. Therefore, it is only the Court at Delhi that will have the jurisdiction to try the petition in the present case. No ground to interfer in the order dated FAO No. 1512 of 2008 8 01.04.2008 passed by the Guardian Judge, Jalandhar and the appeal is accordingly dismissed. (Nirmaljit Kaur) Judge September , 2009 mohan