IN THE HIGH COURT CF GHHATTISGARH AT BILASPUR ‘ WRIT PETITION(227) No. ,877L3 0f2009v- PE'IHTIONER: Shriram Niwas Agrawal S/o Late ‘Shr11 Hira Lal Agrawal, aged about 6O years R/o Nehru Nagar Bh11a1 DIStrlct Durg (CG) VERSUS 1./Sam Kumar Agrawal S/o S'hri ’Suraj _ Prakash Agrawal, > ‘R/o A—30 Gayatri Nagar, Raipur (CG); (APPLICANT) / 2.Kum. ‘ Aditi Agrawal ’@ Mitti, aged 5 years, D/o Sah'l Kumar AgraWal, through natural guardian _ mother ‘Smt. Kavita \Agrawal, W/o Shri Salil ' Kumar Agrawal, r/o B—l 'Ganga 'Gagan, ‘ behind Anant Talkies, Ghorpadi " Gaen, , Punar (Maharashtra) (NON—AFFLICANT No.1): ‘ RESPONDENTS 7) .t. Kvita Aral agd 33 yeg, ‘ Kuar Aw, /o Shri RaniasVgraal, r B— Ga ga, bed Ana alies Gb n (Mah ( N PPIANT N0) NO ALC 2 / 38m a gwa, — e ar W/o‘Sahl h graal D mwAw R/o I , nga Gan hin nt Tk, hrpadi Gaon, ' Pua harastra) . { @ WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ‘ v i HIGH COURT OF CHHATTISGARH ATnBILASPUR Si‘nqle Bench: Hon’ble Shri Justice P‘rashant Kumar Mishra i x ~ Writ Petition (227) No.187i3 of 2009 i Shri fShailendra Dubey, counsel for the petitioner. j ‘ None for respondent No.1 Salil Kumar Agrawal/husband though served. i S I Writ Petition under Article 227 of the @onstitution of India j ORAL ORDER i (Passed on 11‘“ February; 201 1) Heard. 2. i Dispute pertains to custodyiof minor child Ku, Aditi Agrawai alias (Mithi. She'is the minor daughter of Salil Kumar Agrawai and Smt. Kavita Agrawal. 3. On account of marital dispute, respondent No.1 Salil Kumar i Agrawal preferred a suit before the Chief Family Court, Raipur. The said suit has since been transferred to the Court of District Judge, Pune (Maharashtra) by the order passed by Hon‘ble the Supreme ; E Court on 15-1-2008 in Transfer Petition (C) No.232/2007. 4. ln the present writ petition, challenge has been thrown to the order passed by the Family Court, Durg, whereby objection regarding maintainability of the‘petition preferred by the said Salil t t r‘ l g /CKumar Agrawal under Section 25 o’f the Guardians and Wards Act, J - , Petitioner S nram Nlwas Agrawal . . y E t versus 3‘ 1‘ Respondents Sahl KumarAgrawal . l o hers k __-_ Préslent: ____ ____ l certificate is dated 25—7~ academic year 200 2008 and the progress report is for the 6 3 Nandan and others, AIR 1989 Orissa 151, it has been held that the words ‘ordinarily resides‘ are not identicai and do not have the same meaning as ‘residence at the time of the application’. it has been further held therein that the legislature used the words ‘ordinarily resides’ probably to avoid the mischief like the minor‘may be secretly removed to some other place and kept at that place under compulsion and, therefore, the application for custody of minor has to be filed in ordinary place of residence of minor and the residence at the time of application is not decisive of jurisdiction. 9. While interpreting meaning of the word ‘resides‘ occurring in clause (ii) of Section 19 of the Hindu Marriage Act, 1955, the Hon’ble Supreme Court in Smt. Jeewanti Pandey vs. Kishan Chandra Pandey, AIR 1982 SC 3 has held in paragraph 12 of the report thus: “12. ln 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 ambiguny and ts capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. lt is capable of being understood in its ordinary sense of having one’s own dwelling permanently, as well as in its extended sense. ln its ordinary sense reSidence is more or less of a permanentcharacter The expression resides means to make an abode for a conSIderabte time to dwell as“ permanently or for a length of time to have a settled abode for a time. It is the place where a person has a f‘ixed home or abode ln Websters Dictionary, to resrde i i r \ 4 has been defined as meaning ‘to dwell permanently or for any length of time’, and words iike ‘dweiling place’ or ‘abode’ are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casuai or temporary visit, e.g. for health or business or for a change. If a person lives 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.” W» 10. Thus, it would be apparent that the word ‘resides’ or the words ‘ordinarlly resides’ have to be assigned meaning in the circumstances and the context in which the matter requires to be used. Applying the principle in the facts of the case, the child is presently studying at Pune. The transfer petition presented by the wife has been allowed by the Hon’ble Supreme Court and the proceedings under the Hindu Marriage Act, 1955 initiated by the respondent No.1/husband in the Family Court, Raipur has already been transferred to Pune. For all these reasons, this Court is of the opinion that in the context of the present case, the words ‘ordlnarily resides’ would not mean that the Court at Durg wduld have jurisdiction to entertain an application under Section 25 of the Act, 1890 only because the date on which the application was made the minor Aditi was residing at Durg. 11, As a consequence, the instant writ'petition succeeds and is ' I'l'allowed. Thevimpugned order is set aside. The objection regarding l l. 5 “m 5 jurisdiction is allowed. it is held that the Court at Durg has no jurisdiction to take cognizance of the application under Section 25 of the Act, 1890 submitted by the respondent No.1/husband. Sd/- Prashant Kumar Mishta 3 Judge Wu“J