Rajesh v. Komal

IN T

Rajesh

Komal

CORAM : HO HO

Present:- Mr

for

Mr

for

SUDEEPTI SH

1.

The passed by learne under Order 7 R case GW/26/202

2.

Bri application (An Guardians and before the learn minor son Disha appellant-husban A-3) for reject

THE HIGH COURT OF PUNJ AT CHANDIGA -.-

FAO N

Reserv

Prono

Versus

ON'BLE MR. JUSTICE SURE ON'BLE MRS. JUSTICE SUD

r. Bharat Julka, Advocate the appellant. r. Samay Singh Sandhawalia, Ad the respondent

HARMA, J. e appellant-husband has challe ed Principal Judge, Family Cour Rule 11 of Code of Civil Procedu 23 seeking rejection of plaint, ha ief facts of the case are tha nnexure A-1) under Section 2 Wards Act, 1890 (herein after ned Principal Judge, Family Cou ant (aged 3.5 year). During the p nd moved the application under tion of plaint and the respon

JAB AND HARYANA ARH No. 2294 of 2024 ved on :-08.08.2024 ounced on :- 27.08.2024

...... Appellant

...... Respondent ESHWAR THAKUR EEPTI SHARMA dvocate enged the order dated 24.04.20 rt, Kaithal, whereby his applicat ure, 1908 (for short, 'CPC') filed as been dismissed. at the respondent-wife moved 25 read with Section 12 of r to be referred as 'Act of 189 urt, Kaithal, seeking custody of pendency of the above petition, r Order 7 Rule 11 CPC (Annex ndent-wife filed her reply to

tion d in an 90')

application (An dated 24.04.202 SUBMISSIONS

3.

Lea liable to be set a the application made to the D ordinarily reside Panchkula and i the minor son w left the company

4.

Per settled law that is not with the jurisdiction with of this Court pa (Civil) 213]; Am Vs. Divya [2021 Judge has dism judgments. He Family Court, K husband did no opportunities. H the husband, the after the delay o

nnexure A-4) but the same was

¶24Hence the present appeal. S OF THE LEARNED COUN arned counsel for the appellant c aside in view of Section 9 of th with respect to guardianship of District Court having jurisdictio es. He further submits that the is studying in Manav Mangal Sch was with the appellant since 24. y of the appellant. r contra, learned counsel for the whenever the age of child is les mother then the district in wh h respect to the custody of the ch assed in Smt. Sarabjit Vs. Piar mit Kashyap Vs. Pooja [2017(1) 1(1) RCR (Civil) 722]. He furth missed the application of the further contends that the respon Kaithal on 12.04.2023 and from ot file his written statement in He further contends that since th erefore, he has filed the applicat of one year and was seeking adjo

s dismissed, vide impugned or SELS contends that the impugned orde he Act of 1890, which provides t f the person of the minor shall on in the place where the mi minor son is residing with him hool, Sector 11, Panchkula. Furt .07.2022 when the respondent-w e respondent-wife submits that i s than 5 years and physical custo hich mother resides shall have hild. He relies upon the judgme ra Lal and Another [2005(3) R 1) Law Herald] and Akashy Gup her contends that the Family Co appellant by relying upon th ndent-wife filed the custody case m the past one year the appella nspite of availing five consecut he custody of child is already w tion under Order 7 Rule 11 of C ournments for the last one year.

rder er is that l be inor m at ther wife it is ody ents RCR upta ourt hese e in ant-tive with CPC

further contends age whereas the proceedings he was asking for a

5.

We record of this ca

6.

Lea application unde the minor son w Section 6 of the child below 5 ye Family Court fu and Guardiansh be in physical deemed to be at at the time of in guardian of the natural custody place where the the judgments o RCR (Civil) 21 Gupta Vs. Divy Court, Kaithal d appellant by hol try the petition a

s that the mother is natural guard e custody of the child is with the did not take objection of jurisd adjournments for filing reply. e have heard learned counsel for ase. arned Principal Judge, Famil er Order 7 Rule 11 CPC filed b was born on 24.11.2020 and is l e Hindu Minority and Guardian ears would ordinarily lie with the urther held that the intention of hip Act, 1956 is that even though custody/residing with mother b t the place where the mother is r nstituting proceedings before the minor child since the child was would also be presumed to be child was actually/physically re of this Court in Smt. Sarabjit Vs 3]; Amit Kashyap Vs. Pooja [2 ya [2021(1) RCR (Civil) 722] dismissed the application under lding that the Family Court, Kait as the child is below the age of

dian of the child below five years e appellant. Therefore, to delay diction at the initial stage when r the parties and perused the wh ly Court, Kaithal dismissed by the appellant on the ground t less than 5 years of age and as nship Act, 1956 and custody of e mother. Learned Principal Jud Section 6(a) of the Hindu Mino h the minor below 5 years may but still his/her custody would residing and the respondent-mot Family Court, was deemed natu below 5 years of age, therefore, with the mother, regardless of siding at that time. By relying up Vs. Piara Lal and Another [2005 [2017(1) Law Herald] and Aka ], learned Principal Judge, Fam Order 7 Rule 11 CPC filed by thal has jurisdiction to entertain a 5 years and has to reside ordina

s of n he hole that per dge, rity not be ther ural pon 5(3) shy mily

with the mother to be interpreted

RELEVANT P

7.

For being reproduce

GA Sec in t pro hav to pro pro jur may disp hav Sec min may

r, therefore, the expression "wher d to mean the residence of mothe PROVISIONS OF LAW r proper adjudication of the mat ed as under:- AURDIAN AND WARDS ACT, ction 9 . Court having jurisdicti e application is with respect to e minor, it shall be made to the the place where the minor ordin If the application is with r operty of the minor, it may be ving jurisdiction in the place wh a District Court having jurisd operty. If an application with res operty of a minor is made to a D isdiction in the place where the y return the application if in its posed of more justly on conven ving jurisdiction. ction:-12 . Power to make inte nor and interim protection of pe y direct that the person if any,

re the minor ordinarily resides" er. tter, relevant provisions of law 1890 ion to entertain application.- (1) the guardianship of the person District Court having jurisdict narily resides. respect of the guardianship of made either to the District Co here the minor ordinarily resides diction in the place where he spect to the guardianship of District Court other than that hav minor ordinarily resides, the Co s opinion the application would niently by any other District Co erlocutory order for production erson and property.- (1) The Co , having the custody of the min

has are ) If n of tion ourt s or has ving ourt d be ourt n of ourt nor,

sha min app bei con due Sec gua min gui sub min Cou cha kin exis or h Cou

all produce him or cause him to b d before such person as it appo e temporary custody and protecti nor as it thinks proper. If the minor is a female w pear in public, the claiming to be ing her husband, unless she is nsent of her parents, if any, or Any person to whom the tem e property if a minor is entruste e course of law any person in pos ction:-17 Matter to be conside ardian.- (1) In appointing nor, the Court shall, subject to ided by what, consistently with bject, appears in the circumsta nor. In considering what will be urts shall have regard to the age aracter and capacity of the prop to the minor, the wishes, if an sting or previous relations of the his property. If the minor is old enough to urt may consider that preference

be produced at such place and t ints, and may make such order ion of the person or property of who ought not to be compelled e her guardian on the ground of s already in his custody with mporary custody and protection ed to dispossess otherwise than ssession of any of the property. ered by the Court in appoint or declaring the guardian of o the provisions of this section, h the law to which the minor ances to be for the welfare of e for the welfare of the minor, e, sex and religion of the minor, posed guardian and his nearness ny, of a deceased parent, and a e proposed guardian with the mi o form an intelligent preference, e.

ime for f the d to f his n of n by ting f a , be r is s of any

gua Sec lea Cou retu retu to b of t

HIN Sec

(a) eig

(b) min inc

The Court shall not appoin ardian against his will. ction 25 . Title and guardian t ves or is removed from the custo urt, if it is of opinion that it wil urn to the custody of his guar urn and for the purpose of enfor be arrested and to be delivered i For the purpose of arresting e power conferred on a Magistra the Code of Criminal Procedure, INDU MINORITY AND GUARD ction 4. Definitions.—In this Act "minor" means a person wh ghteen years; "guardian" means a person h nor or of his property or of b cludes—

(i) a natural guardian,

(ii) a guardian appoin or mother,

(iii) a guardian appoin

(iv) a person empower enactment relating to a

nt or declare any person to b to custody of ward.- (1) if a w ody of a guardian of his person, ll be for the welfare of the ward rdian, may make an order for rcing the order may cause the w nto the custody of the guardian. g the ward, the Court may exerc ate of the first class by section 1 , 1882 (10 of 1882). DIANSHIP ACT, 1956 t,— ho has not completed the age having the care of the person o both his person and property, a , nted by the will of the minor's fat nted or declared by a court, and red to act as such by or under a any Court of wards.

e a ard d to his ward

cise e of of a ther

(c) sec Sec gua as inte

(a) him

(b) gir

(c) per und Exp do SUBSTANTIA

8.

The the expression " 9(1) of the Guar

"natural guardian" means an ction 6. ction 6. Natural guardians of ardians of a Hindu minor; in re in respect of the minor's proper erest in joint family property), ar in the case of a boy or an unm m, the mother: provided that the custody of e age of five years shall ordinari in the case of an illegitimate l—the mother, and after her, the in the case of a married girl rson shall be entitled to act as der the provisions of this section—

(a) if he has ceased to be a H

(b) if he has completely an becoming a hermit (vanap sanyasi). planation.—In this section, the e not include a step-father and a s AL QUESTION OF LAW e question which is to be decide "the place where the minor ordin rdian and Wards Act, 1890.

ny of the guardians mentioned of a Hindu minor.—The natu espect of the minor's person as w rty (excluding his or her undivid re— married girl—the father, and af of a minor who has not comple ily be with the mother; boy or an illegitimate unmarr e father; l—the husband: Provided that s the natural guardian of a mi — Hindu, or nd finally renounced the world prastha) or an ascetic (yati expressions "father" and "moth step-mother. ed by this Court is interpretation narily resides" referred to in Sect

d in ural well ded fter eted ried nor d by or er" n of

ANALYSIS O COUNSEL FO

1.Smt. Sarabjit

2.Amit Kashyap

¶3Akashy Gupt

9.

In Court decided t ordinarily reside mean, for the ch of Section 6(a) all the above re Section 9 of the

10.

A p the person who his person and p

11.

Sec the natural guar respect of minor him, the mother not completed th

12.

By intention of the feeding child an gives birth to th

OF JUDGMENTS REFERRE OR THE RESPONDENT AND Vs. Piara Lal and Another [200 p Vs. Pooja [2017(1) Law Heral ta Vs. Divya [2021(1) RCR (Civi all the above referred to judgm the question of jurisdiction by es" as used in Section 9 of the hildren below 5 years of age to of the Hindu Minority and Gua eferred to decisions of learned Guardian and Wards Act 1890, perusal of the definition of 'Gu is having the care of the person property which includes natural g ction 6 defines natural guardian rdian of Hindu minor in respec r's property is in case of boy or r. Proviso to this section states he age of five years shall ordinar using the language "shall or legislature is that since the chil nd requires love and affection f he child, the child is more com

ED TO BY THE LEARN THE FAMILY COURT 05(3) RCR (Civil) 213]; ld] il) 722] ments learned Single Bench of t interpreting the expression "mi Guardian and Wards Act, 1890 be residence of the mother in vi ardianship Act, 1956. We find t Single Judge are per-incuriam a has been wrongly interpreted. uardian' shows that the guardian n of a minor or his property or b guardians. n of the Hindu minor as per wh ct of minor's persons as well as unmarried girl, the father and a that the custody of minor who rily be with the mother. rdinarily be with the mother" ld below 5 years is normally bre from the mother and since mot mfortable in the lap of the moth

ED this inor 0 to iew that n is both hich s in fter has east ther her,

therefore the in For that the lan with the mother intention of the minor cannot b insensitive, lead father of the chi conducive for legislature is t Guardianship A child. If the inte Guardianship A who has not com under Sections redundant for th

13.

A b Wards Act, 18 appointing or d provisions of S consistently with be for the welfa the welfare of th the minor.

14.

Sec that if a ward le

ntention of the legislature is wel nguage is "shall ordinarily be w r". By using the words "shall o legislature is to see the welfar e with the mother who is unch ding to estranged matrimonial r ild), sick, physically or mentally ideal upbringing of the child that the proviso to Section 6 Act, 1956 is not mandatory but ention of the legislature under Se Act, 1956 would have been that th mpleted the age of 5 years shall 12, 17 and 25 of the Guardian he minor below the age of 5 years bare perusal of the provision o 90 shows that this is mandato declaring the guardian of a min ection 17 of Guardian and Wa h the law to which minor is subj are of the minor. It further reads he minor, the Court shall have re ction 25 deals with the title of gu eaves or is removed from the cus

lfare and the comfort of the ch with the mother" and not "shall ordinarily be with the mother", re of the child. The custody of haste, insane, leading immoral l relationship with her husband ( y suffering from any disability, d. Therefore, the intention of 6(a) of the Hindu Minority a t depends upon the welfare of ection 6 of the Hindu Minority a he natural guardian of Hindu mi l be the mother then the provisi n and Wards Act, 1890 would s. of Section 17 of the Guardian a ory provision which reads that nor, the Court shall, subject to ards Act 1890, be guided by wh ect, appears in the circumstance that in considering what will be egard to the age, sex and religion uardian to custody of ward. It re stody of the guardian of his pers

hild. l be life, (the not inor ons d be t in hat, s to for n of eads son,

the Court, if of t custody of his enforcing the or custody of the g

15.

A c shows that the jurisdiction is th lie to the Distric and physically Minority and Gu

16.

Ho [1973 AIR Sup and Wards Act, "14 con cus gua ens pro war rea Hyp dut wel

the opinion that it will be for the guardian, may make an order fo rder may cause the ward to be a guardian. conjoint reading of all the abov e intention of the legislature i hat application for the guardiansh ct Court having jurisdiction in th residing and not as per the p uardians Act, 1956. n'ble Supreme Court in Rosi J preme Court 2090] while dealin 1890 held as under:-

¶4In our opinion, Section 25 ntemplates not only actual phys stody of the guardian which ardians. The object and purpose sure the welfare of the minor wa otection of the right of his gu rd's health, maintenance end asonably liberal interpretation per-technicalities should not be e necessary assistance from the C ties and obligations towards his lfare. If the Court under the D

welfare of the ward to return to for his return and for the purpose arrested and to be delivered into ve referred to statutory provisi in Section 9 with respect to hip of the person of the minor sh he place where the minor is actua proviso to Section 6(a) of Hin Jacob Vs. Jacob A. Chakramak ng with Section 25 of the Guard of the Guardians And Wards sical custody but also construct term includes all categories e of this provision being ex facie ard, which necessarily involves d ardian to properly look after education, this section dema so as to effectuate that obj allowed to deprive the guardian Court in effectively discharging s ward so as to promote the latte ivorce Act cannot make any or

e of ons hall ally ndu kkal dian Act tive of e to due nds ect. n of his er's

wit app Sec unf his exh our app eld que chi und ord to cus und sug pref con Div ent of t

th respect to the custody of Ajit: d it is not open to the Court und point or declare guardian of ction 19 during his lifetime, if fit, then, the only provision to w children's custody is Section 2 haustively the circumstances in w r opinion, on the facts and circum plication under Section 25 was der children. The Court was en estions of fact or law properly ra ildren. With respect to Mahesh der the Divorce Act is at pres ders relating to his custody, m erefore, somewhat difficult to imp set up another parallel Court stody of a minor which is withi der the Divorce Act. We are un ggestion that his application sh eferred for appointing or declari e respondent's prayer for cus nsidered under the Guardians a vorce Act, as observed by Mahar tirely agree, "the controlling co the children is the welfare of th

alias Andrew and Maya alias M der the Guardians and Wards Ac the person of his children un the Courts does not consider h which the father can have resort

¶25Without, therefore, laying do which Section 25 can be invoked mstances of this case the husban competent with respect to the t ntitled to consider all the dispu aised before it relating to these t alias Thomas, however, the Co sent empowered to make suita maintenance and education. It pute to the Legislature an intent to deal with the question of in the power of a competent Co nable to accede to the responde hould be considered to have b ing him as a guardian. But whet stody of the minor children and Wards Act or under the Ind rajan J., with which observation onsideration governing the custo he children concerned and not

Mary ct to nder him for own d, in nd's two uted two ourt able t is tion ourt nt's een ther be dian we

righ Div und opi of t bac to b bin seld to b wel bro full dom wel reg gua wou nec inte self chi bet

ht of their parents", It was no vorce Act this is the controlling der Section 25 of the Guardian inion, to be governed primarily the minors concerned. The disc e case with all judicial discretion ckground of all the relevant facts be decided on its own facts an nding precedents, the facts of dom-if ever identical. The conten be the guardian of his minor ch lfare does not at all arise is oadly and may at times be some l notice of the real core of the sta minant consideration in making lfare of the minor children and gard has of course to be paid t ardian and also to all other rel e minor's welfare. There is a pr uld do their very best to promo cessary, would not grudge any erest and pleasure. This presump fless affection normally expec ildren. From this point of view tween the mother and the father

ot disputed that under the Ind g consideration. The Court's pow ns And Wards Act is also, in by the consideration of the welf cretion vested in the Court is, as ns to be exercised judiciously in s and circumstances. Each case nd other cases can hardly serve f two cases in this respect be ntion that if the husband is not u hildren, then, the question of th to state the proposition a bit ewhat misleading. It does not t atutory purpose. In our opinion, g orders under Section 25 is d in considering this question d to the right of the father to be levant factors having a bearing resumption that a minor's pare ote their children's welfare and y sacrifice of their own perso ption arises because of the natur cted from the parents for th w, in case of conflict or disp about the custody of their childr

dian wer our fare s is has e as eing unfit heir too take due g on ents d, if onal ral, heir pute ren,

Let dic cus fath pre con can mo und cha par from aga in c com chi jus min gen cas que hav fam

e approach has to be somewhat tters Patent Bench of the High chotomy between the fitness of t stody of his minor children and c her's fitness has to be cons edominantly in terms of the we ntext of all the relevant circums nnot promote their welfare equa ther, then, he cannot claim in der Section 25 merely because aracter and he has attachment fo rent has. These are the only tw m the stress laid by the husban ainst the wife which in our firm contending. Such allegations, in mpletely ignored in considerin ildren in the present case. The fa t mentioned cannot override co nor children. No doubt, the fathe nerally to be better fitted to look e earning member and head of th se to see primarily to the welfare estion of their custody, in the ba ving bearing on their health, mily is normally the hear of ou

different from that adopted by h Court in this case. There is the father to be entrusted with considerations of their welfare. T idered, determined and weigh elfare of his minor children in stances. If the custody of the fat lly or better than the custody of ndefeasible right to their custo there is no defect in his perso or his children -which every norm wo aspects pressed before us, ap nd on the allegations of immora opinion, he was not at all justif view of earlier decisions, had to g the question of custody of ather's fitness from the point of v onsiderations of the welfare of er has been presumed by the stat k after the children - being norma he family but the Court has in ea e of' the children in determining ackground of all the relevant fa maintenance and education. T ur society and for a balanced a

The hed ther f the ody onal mal part ality fied o be view tute ally ach acts

hea sha par una to a a fu und of t him her add a p thin con bei usef disp chi app agr hav

althy growth of children it is high are of affection and care from rental home. Where, however avoidable circumstances become a judicial decision on the questio full consideration of all the relev e father loves his children an desirable cannot necessarily lead the children would be better pro m as against the wife who may a r children and otherwise equall dition, because if her profession position to guarantee better heal em. The children are not mere ngs for their parents. Absolute d the lives of their children ha nditions, yielded to the conside ings so that they may grow up in eful members of the society and pute between the mother and the d proper balance between the re ildren and the rights of their r proach of the learned single Judg ree with him. The Letters Paten ve erred in reversing him on

hly desirable that they gel their d both the parents in their norm family dissolution due to so es necessary the Court has to co on of the welfare of the children vant circumstances. Merely beca nd is no, shown to he otherw d to the conclusion that the welf omoted by granting their custody also be equally affectionate towa ly free from blemish, and, who, n and financial resources may be lth, education and maintenance chatels: nor are they mere pl right of parents over the destin as, in the modern changed soc erations of their welfare as hum n a normal balanced manner to d the guardian court in case o e father. is expected to strike a j equirements of welfare of the mi respective parents over them. T dge, in our view, was correct and nt Bench on appeal seems to us grounds which we are unable

due mal ome ome n on ause wise fare y to ards , in e in for lay-nies cial man o be of a just nor The d we s to

app *

¶16had gro be mu gen circ mo not rela for poi wif The afte ma pro who leg

17.

A p Supreme Court that the object a

preciate.

*

* The respondent's contention th d granted custody, of the two y ound of their being of tender ag erefore, their custody must be ha misconceived. The age of the d st need the constant company o nuinely interested in her w cumstances the best company for ther's advice and guidance on se t been suggested at the bar th ated to Maya alias Mary would b such motherly advice and guid int of view of her education, in fe would be far more beneficial e youngest son would also, in o er by his mother than by his fat ke a mark in his profession. H ofession and we have no do oleheartedly to it he is sure to f gal profession. perusal of the above referred to while interpreting Section 25 of and purpose of this provision bei

*

*

* hat the court under the Divorce ounger children to the wife on ge, no longer holds good and th anded over to him appears to us daughter at present is such that of a grown-up female in the ho welfare. Her mother is in r her. The daughter would need everal matters of importance. It hat any grown-up woman clos be available in the husband's ho dance. But this apart, even from our opinion, her custody with than her custody with the husba our opinion, be much better loo ther who will have to work hard He has quite clearly neglected oubt that if he devotes hims find his place fairly high up in o judgment shows that the Hon' f the Guardian and Wards Act h ing ex facie to ensure the welfare

Act hat, s to she ouse her has sely ouse and. ked d to his self 'ble held

the minor child guardian to prop section demand is further held h the necessary as obligations towa

18.

In R judgement refer "3. hav chi tha see Kus Ven bas who cur und Cou Gu her pet Cou

d, which necessarily involves d perly look after the ward's healt s reasonably liberal interpretatio hyper-technicalities should not be ssistance from the Court in effe ards his ward so as to promote th Ruchi Majoo Vs. Sanjeev Majo rs to the facts of the case, which i The present happens to be one ve engaged the parties in a bitter ild Kush, aged about 11 years b at country by birth. These proce e father-respondent in this app eking divorce from the responden sh. An order passed by the Supe ntura in America eventually led sed on allegations of child abd o like the father of the minor rrently living with her parents der an order dated 4th April, 2 urt at Delhi in a petition filed ardians And Wards Act grantin r. Aggrieved by the said order tition under Article 227 of the Co urt of Delhi. By the order impug

due protection of the right of th, maintenance and education, t on so as to effectuate that object e allowed to deprive the guardian fectively discharging his duties a he latter's welfare. oo [2011(6) SCC 479], para 3 of is reproduced as under:- such case where legal proceedi r battle for the custody of their o born in America hence a citizen eedings included an action filed peal, before the American Co nt-wife and also custody of mas erior court of California, County d to the issue of a red corner not duction levelled against the mot child is a person of Indian ori in Delhi. The mother took refu 2009 passed by the Addl. Dist under Sections 7, 8, 10, 11 of ng interim custody of the minor r the father of the minor filed onstitution of India before the H gned in this appeal the High Co

his this t. It n of ngs only n of d by ourt ster y of tice ther igin fuge trict r to d a High

allo gro sam pre Cou oug bec fav citi com of t

Thr determination. "whether the H the minor on entertain the sa

Ho dealing with Sec "5. Gu par

owed that petition, set aside the d dismissed the custody case fil ound that the Court at Delhi ha me as the minor was not ordina ecedent for the Delhi Court to urt further held that all issues ght to be agitated and decided cause that Court had already p vour of the father, but also bec e parents of the minor and th izens. The High Court buttresse mity of courts and certain observ the decided cases to which we sh ree questions were framed by In the present case only the High Court was justified in dism the ground that the Court ame" n'ble Supreme Court in the cas ction 9 of the Guardian and War

There is no gainsaying that e court will have to be seen in th e pleadings of the parties and th ardian and Wards Act, 1890. A rties is, therefore, necessary

order passed by the District Co led by the mother primarily on ad no jurisdiction to entertain arily residing at Delhi - a condit o exercise jurisdiction. The H s relating to the custody of ch by the Court in America not o passed an order to that effect cause all the three parties nam he minor himself were Americ ed its decision on the principle vations made by this Court in so hall presently refer." y the Hon'ble Supreme Court first question would be relev missing the petition for custody at Delhi had no jurisdiction se of Ruchi Majoo (supra) wh ds Act, 1890, held as under:- any challenge to the jurisdiction he context of the averments made he requirement of Section 9 of closer look at the pleadings of before we advert to the le

ourt tion High hild only t in ely, can e of ome for vant y of n to hile n of e in f the

req und *

¶13pro for ide per tha min say

¶14for is "W ord inte que adm ans con

quirement that must be satisfied f der the Act mentioned above.

*

* Section 9 of the Guardian and ovision as regards the jurisdictio grant of custody of a minor. W entifies the court competent to p rsons of the minor, sub-sections at can be approached for guardia nor. Section 9(1) alone is, ther ys : "9. Court having jurisdiction application is with respect to the minor, it shall be ma Jurisdiction in the place whe It is evident from a bare readin determining the jurisdiction of t the 'ordinary residence' of th Where the minor ordinarily res dinarily residing at a given p ention which in turn is a questio estion of law and fact, but u mitted it can never be a pure swered without an enquiry i ntroversy. The factual aspec

for the Court to exercise its pow

*

* d Wards Act, 1890 makes a spec on of the Court to entertain a cla While Sub-section (1) of Sectio ass an order for the custody of

(2) & (3) thereof deal with cou anship of the property owned by refore, relevant for our purpose n to entertain application - (1) If o the guardianship of the person ade to the District Court hav ere the minor ordinarily resides." ng of the above that the solitary the court under Section 9 of the e minor. The expression used ides". Now whether the minor place is primarily a question on of fact. It may at best be a mix unless the jurisdictional facts question of law, capable of be into the factual aspects of ts relevant to the question

wers cific aim n 9 f the urts e. It f the n of ving " test Act d is r is of xed are eing

jur disp bef res use inte rule mea 'ord

15.

16.

isdiction are not admitted in th putes on those aspects to which fore doing so examine the true pu ident' appearing in Section 9(1) ed in different contexts and sta erpretation. Since liberal interpr e of interpretation it would be aning of the two words that co dinary' has been defined by the B "Ordinary (Adj.) : Regular recurring; according to esta reasonable; not characte circumstances; belonging to, the normal or average indivi The word 'reside' has been expl "Reside : live, dwell, abid (Western-Knapp Engineerin 129 F2d 135, 136.) To settle stationed, to remain or continuously, to have a settl residence or domicile; specif an abiding place, to be pre quality, to be vested as a righ Mo., 359 S.W.2d 343, 349.)" In Websters dictionary also

he instant case. There are seri h we shall presently refer. We m urpose of the expression 'ordina ) (supra). This expression has b atutes and has often come up retation is the first and the forem e useful to understand the lite omprise the expression. The w Black's Law Dictionary as follow r; usual; normal; common; of ablished order; settled; customa erised by peculiar or unus , exercised by, or characteristic idual." lained similarly as under : de, sojourn, stay, remain, lod ng Co. V. Gillbank, C.C.A. C e oneself or a thing in a place, to stay, to dwell permanently led abode for a time, to have on ifically, to be in residence, to h esent as an element, to inhere ht. (State ex rel. Bowden v. Jens " the word 'reside' finds a simi

ous may rily een for most eral ord ws : ften ary; sual c of, dge. Cal., o be or ne's ave e as sen

mea 16A Ma for Eng dis pla Lor

¶17Sup Sec

aning, which may be gainfully ex "1. To dwell for a considera

¶2To exist as an attribute o with in" A. In Mrs. Annie Besant v. Nar the infants had been residing i adras Presidency. They were giv the purpose of education and gland at the University of Oxford trict Court of Chingleput for th aintiff the minors had permanent e Chingleput Court was compete rdships of the Privy Council obse "The district court in whic jurisdiction over the infants conferred by the Guardians Section of that Act the juris infants ordinarily residing in It is in their Lordship's op infants who had months pr being educated in Englan acquired their ordinary resid

In Mst. Jagir Kaur and A preme Court 1521, this Court ction 488 Criminal Procedure Co

xtracted : able time; to make one's home; l or quality with in. 3. To be vest rayaniah AIR 1914 Privy Coun in the district of Chingleput in ven in custody of Mrs. Annie Bes d were getting their education d. A case was, however, filed in he custody where according to tly resided. Repeating the plea t nt to entertain the application th erved : ch the suit was instituted had s except such jurisdiction as w and Wards Act 1890. By the ni sdiction of the court is confined n the district. pinion impossible to hold that reviously left India with a view nd and going to University h dence in the district of Chinglepu Anr. v. Jaswant Singh, AIR 19 t was dealing with a case un Code and the question of jurisdict

ive. ted: ncil sant n in that heir was inth d to w to had ut." nder

of not imp par wor ..... imp cas res or par

¶18SC Rep obs

the Court to entertain a peti ticed a near unanimity of opinio e word "resides" appearing in th plied something more than a fl rticular place. The legal positio rds : " ..Having regard to the object s plicit in the words used, and th ses there on, we would define t ides in a place if he through cho even temporarily; whether a rticular place his abode depends

In Kuldip Nayar & Ors. v. CC 1, the expression "ordina presentation of People Act, 1950 served : "

¶243Lexicon refers to Cic

(1980)3 All England Repo "ordinarily" is primarily d purpose. In this sense the q person is to be found "ordi habitually and with some de quality of residence is "or merely for some special or li

¶244The words "ordinarily

ition for maintenance. The Co on as to what is meant by the use he provision and held that "resid flying visit to, or casual stay a on was summed up in the follow ought to be achieved, the mean he construction placed by decid the word "resides" thus: a pers oice makes it his abode permanen a person has chosen to make s upon the facts of each case....." Union of India & Ors., 2006 ary residence" as used in 0 fell for interpretation. This Co cutti v. Suffolk County Coun orter 689 to denote that the w directed not to duration but question is not so much where inarily", in the sense of usually egree of continuity, but whether rdinary" and general, rather th imited purpose. y" and "resident" have been u

ourt e of des" at a wing ning ded rson ntly e a " 6(7) ourt ncil word to y or han

¶19Nar Ban Ch Sm Gio exp

together in other statutory p Lexicon they have been con person should be one who business in the particular pla joining the two words has t the point of time requisite fo the case of Section 20 of the which a person seeks to b particular constituency.

¶246Thus, residence is a co Even when qualified by t "resident" would not resu effect of a requirement of th for dwelling always or on Thus understood, even the "ordinarily resident" at a ensuring nexus between him Reference may be made to rayana Rao, AIR 1983 Madra nerjee, AIR 1986 Punjab an imman Lal and Ors., AIR 1952 t. Maya Devi & Ors., AIR 198 ovanni Marco Muzzu and etc. etc e High Courts have dealt with pressions like 'ordinary reside

provisions as well and as per L nstrued as not to require that is always resident or carries ace. 245. The expression coined to be interpreted with reference or the purposes of the provision e RP Act, 1950 it being the date be registered as an elector in oncept that may also be transito the word "ordinarily" the w ult in a construction having he person using a particular pl n permanent uninterrupted ba e requirement of a person be particular place is incapable m and the place in question." Bhagyalakshmi and Anr. v. K as 9, Aparna Banerjee v. Tap nd Haryana 113, Ram Sarup Allahabad 79, Smt. Vimla Dev 81 Rajasthan 211, and in re: c., AIR 1983 Bombay 242, in wh the meaning and purport of ent' and 'ordinarily resides' a

Law on d by e to , in e on n a ory. ord lace asis. eing e of K.N. pan v. vi v. Dr.

tak at pla

Aft answered the qu CONCLUSION

19.

In v against the statu the present appe

20.

Pen

(SURESHWA

JUDGE

August 27, 202 tripti

ken the view that the question w a given place depends so muc ace ones ordinary abode." ter above referred to discussi uestion in negative. N view of the above, we find the o utory provisions of law. Therefo eal. nding applications, if any, also st AR THAKUR)

(S E

whether one is ordinarily resid ch on the intention to make t ion the Hon'ble Supreme Co rder dated 24.04.2024 is infirm a ore we set aside the same and all tand disposed off. SUDEEPTI SHARMA) JUDGE Speaking

ding that ourt