High Court of H.P.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 436 of 2020

Date of Decision 2

nd

January,2021

________________________________________________________

Diwakar Dutt …Petitioner

Versus

Kamlesh Kumari @ Anju & another ….Respondents

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?

1

Yes

______________________________________________________________

For the Petitioner: Mr. Romesh Verma, Advocate,

through Video Conferencing.

For the Respondents: None.

__________________________________________________________________

Vivek Singh Thakur, J.

Petitioner had approached the Family Court, Shimla

by filing a petition under Section 25 of Guardian and Wards Act

1890 (in short ‘the Act’), against his wife and one other, for the

custody of his minor son.

2 Learned District Judge/Family Court vide impugned

order dated 3.11.2020 has returned the petition preferred by

petitioner along with documents for its presentation before the

appropriate Court of law with observation that matter is not

1

Whether Reporters of Local Papers may be allowed to see the judgment? Yes

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within jurisdiction of his Court as minor son is not residing within

jurisdiction of his Court. Reliance has also been placed by Family

Court on a pronouncement of High Court of Allahabad in case of

Dr.Vinay Samuel Arawattigi vs. Principal Judge, Family

Court, Kanpur reported in AIR 2007 Allahabad 13.

3 Being aggrieved by aforesaid order passed by Family

Court, Shimla, petitioner has approached this Court and has

relied upon judgments passed by Apex Court in Ruchi Majoo

vs. Sanjeev Majoo, reported in (2011)6 SCC 479; and also

pronouncements of different High Courts in Ramesh Bhardwaj

vs. Ram Saran Dass, reported in (1998-3) 120 P.L.R.35;

Bhagyalakshmi and another vs. K. Narayana Rao reported

in AIR 1983 Madras 9; and Hariom Ram Pratap vs. Sunil

reported in AIR 2011 Rajasthan 138 . He has also relied upon

judgment of Allahabad High Court, in support of his plea, which

has been relied upon by Family Court for returning the petition.

4 Impugned order has been passed at the initial stage

without issuing notice to respondent. Therefore, I am of the

opinion that in present petition also, issuance of notice to

respondent is not necessary as no order has been passed by

Family Court on merits, but, the petition filed by petitioner has

been returned for its presentation before the appropriate Court of

law.

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5 Provisions of Section 9 of the Act, relevant to present

case, prescribing jurisdiction to entertain the application are 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 minor

ordinarily resides”

6 Discussing the meaning and scope of expression

“where the minor ordinarily resides”, the Supreme Court in Ruchi

Majoo’ case (referred supra) has observed as under:-

“24. It is evident from a bare reading of the above

that the solitary test for determining the jurisdiction

of the court under Section 9 of the Act is the

`ordinary residence' of the minor. The expression

used is "Where the minor ordinarily resides". Now

whether the minor is ordinarily residing at a given

place is primarily a question of intention which in turn

is a question of fact. It may at best be a mixed

question of law and fact, but unless the jurisdictional

facts are admitted it can never be a pure question of

law, capable of being answered without an enquiry

into the factual aspects of the controversy.

25. The factual aspects relevant to the question of

jurisdiction are not admitted in the instant case.

There are serious disputes on those aspects to which

we shall presently refer.

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26. We may before doing so examine the true

purpose of the expression `ordinarily resident'

appearing in Section 9(1) (supra). This expression has

been used in different contexts and statutes and has

often come up for interpretation. Since liberal

interpretation is the first and the foremost rule of

interpretation it would be useful to understand the

literal meaning of the two words that comprise the

expression. The word `ordinary' has been defined by

the Black's Law Dictionary as follows:

"Ordinary (Adj.) :Regular; usual; normal;

common; often recurring; according to established

order; settled; customary; reasonable; not

characterized by peculiar or unusual circumstances;

belonging to, exercised by, or characteristic of, the

normal or average individual."

The word `reside' has been explained similarly as

under:

"Reside: live, dwell, abide, sojourn, stay, remain,

lodge. (Western- Knapp Engineering Co. V. Gillbank,

C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a

thing in a place, to be stationed, to remain or stay, to

dwell permanently or continuously, to have a settled

abode for a time, to have one's residence or domicile;

specifically, to be in residence, to have an abiding

place, to be present as an element, to inhere as

quality, to be vested as a right. (State ex rel. Bowden

v. Jensen Mo., 359 S.W.2d 343, 349.)"

In Websters dictionary also the word `reside' finds a

similar meaning, which may be gainfully extracted:

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"1. To dwell for a considerable time; to make

one's home; live. 2. To exist as an attribute or

quality with in.

3. To be vested: with in"

28. In Annie Besent vs. Narayaniah, AIR 1914 PC

41 the infants had been residing in the district of

Chingleput in the Madras Presidency. They were

given in custody of Mrs. Annie Besant for the

purpose of education and were getting their

education in England at the University of Oxford.

A case was, however, filed in the district Court of

Chingleput for the custody where according to

the plaintiff the minors had permanently resided.

Repeating the plea that the Chingleput Court

was competent to entertain the application their

Lordships of the Privy Council observed:

"...The district court in which the suit was

instituted had no jurisdiction over the

infants except such jurisdiction as was conferred

by the Guardians and Wards Act 1890. By the 9

th

Section of that Act the jurisdiction of the court is

confined to infants ordinarily residing in the

district. It is in their Lordship's opinion

impossible to hold that the infants who had

months previously left India with a view to being

educated in England and going to University had

acquired their ordinary residence in the district

of Chingleput."

In Jagir Kaur and Anr. v. Jaswant Singh AIR 1963

SC 1521, this Court was dealing with a case

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under Section 488 Cr.P.C. and the question of

jurisdiction of the Court to entertain a petition

for maintenance. The Court noticed a near

unanimity of opinion as to what is meant by the

use of the word "resides" appearing in the

provision and held that "resides" implied

something more than a flying visit to, or casual

stay at a particular place. The legal position was

summed up in the following words: (AIR p. 1524,

para 8)

".......Having regard to the object sought to be

achieved, the meaning implicit in the words

used, and the construction placed by decided

cases there on, we would define the word

"resides" thus: a person resides in a place if he

through choice makes it his abode permanently

or even temporarily; whether a person has

chosen to make a particular place his abode

depends upon the facts of each case....."

20. In Kuldip Nayar & Ors. Vs. Union of India &

Ors. Reported in 2006 (7) SCC 1, the expression

"ordinary residence" as used in the

Representation of People Act, 1950 fell for

interpretation. This Court observed:

"243. Lexicon refers to Cicutti v. Suffolk County

Council (1980) 3 All ER 689 to denote that the

word "ordinarily" is primarily directed not to

duration but to purpose. In this sense the

question is not so much where the person is to

be found "ordinarily", in the sense of usually or

habitually and with some degree of continuity,

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but whether the quality of residence is

"ordinary" and general, rather than merely for

some special or limited purpose.

244. The words "ordinarily" and "resident" have

been used together in other statutory provisions

as well and as per Law Lexicon they have been

construed as not to require that the person

should be one who is always resident or carries

on business in the particular place.

245. The expression coined by joining the two

words has to be interpreted with reference to

the point of time requisite for the purposes of

the provision, in the case of Section 20 of the RP

Act, 1950 it being the date on which a person

seeks to be registered as an elector in a

particular constituency.

246. Thus, residence is a concept that may also

be transitory. Even when qualified by the word

"ordinarily" the word "resident" would not result

in a construction having the effect of a

requirement of the person using a particular

place for dwelling always or on permanent

uninterrupted basis. Thus understood, even the

requirement of a person being "ordinarily

resident" at a particular place is incapable of

ensuring nexus between him and the place in

question."

31. Reference may be made to Bhagyalakshmi

and Anr. v. K.N. Narayana Rao AIR 1983 Mad 9,

Aparna Banerjee v. Tapan Banerjee AIR 1986

P&H 113, Ram Sarup v.Chimman Lal and Ors.

AIR 1952 All 79, Smt. Vimle Devi vs. Smt. Maya

Devi and Ors. AIR 1981 Raj. 211, and in re: Dr.

Giovanni Marco Muzzu and etc. etc. AIR 1983

Bom. 242, in which the High Courts have dealt

with the meaning and purport of the expressions

like `ordinary resident' and `ordinarily resides'

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and taken the view that the question whether

one is ordinarily residing at a given place

depends so much on the intention to make that

place ones ordinary abode.”

7 The Punjab and Haryana High Court in Ramesh

Bhardwaj’s case (referred supra) has observed and held as

under:-

“8. ….It is true that the minor's ordinary place or

residence necessarily may not be a place where his

father who is the natural guardian resides, as held by

the Andhra Pradesh in the case of Harihar Parshad

Jaiswal (supra) and the Saurashtra High Court in the

case of Bai Shri Arun Kumari (supra). In the case of

Sarda Nayar (supra) decided by a Division Bench of

the Kerala High Court also, it was observed that the

place of ordinary residence of the minor would be the

place where the minor would have continued to

reside but for the recent removal of the minor to a

different place.

9. In the present case, as stated in the earlier part of

the judgment, the minor children were ordinarily

residing at Chandigarh till their mother died on 28th

June, 1996 and their father who is the natural

guardian was arrested on the basis of the FIR lodged

by the petitioner. The said minors were handed over

to the petitioner during the proceedings of Criminal

Writ Petition No. 890 of 1996 as the respondent who

is the natural guardian was in custody. The

respondent immediately after his release, filed

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Criminal Writ Petition No. 1706 of 1996 for the

custody of the minor children and after he was

relegated to civil remedy., he filed an application

under Section 25 of the Act. From these facts, it is

clear that the minor children would have continued to

live in Chandigarh but for the fact that they were

handed over to the petitioner in the facts and

circumstances of the case. In view of these facts, I

am of the opinion that the Courts in Chandigarh have

jurisdiction to entertain and try the present

application filed by the respondent under Section 25

of the Act.”

8 Madras High Court in Bhagyalakshmi’s case (referred

supra) has held as under:-

“7….The words 'ordinarily resides' would in my view

connote, a regular, normal or settled home and not a

temporary or forced one to which a minor might

have been removed either by stealth or by

compulsion. The place of residence at the time of the

filing of the application under the Act does not help

to ascertain whether a particular court has

jurisdiction to entertain the proceedings or not, as it

would be easy to stifle proceedings under the

provisions of the Act by the mere act of the moving

the minors from one place to another and

consequently from one jurisdiction to another. The

question whether the minors were ordinarily residing

in any particular place has to be primarily decided on

the facts of the particular case. The paternal family

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of the house of the family residence may normally be

taken to be the place of ordinary residence of the

minors as well. The words 'ordinarily resides' are

incapable of any exhaustive definition as those

words have to be construed according to the purpose

for which the enquiry is made. The intention of not

reverting back to the former place of residence

would normally be relevant; but in the case of the

minors, it is rather difficult to impute any such

intention to them. It has also be borne in mind that

mere temporary residence or residence by

compulsion at a place however long, cannot be

equated to or treated as the place of ordinary

residence. Bearing in mind these considerations, it is

necessary to ascertain from the materials available

in this case as to where the minors 'ordinarily

resided' for purpose of the Act…….”

9 The Rajasthan High Court in Hariom Ram Partap’s

case has held:-

“9. It is not the place where the minor is presently

residing when application seeking custody is filed

under Section 9 of the Act. which would be

determinative of deciding the jurisdiction of the Court

under Section 9 of the said Act, but it is factually as

well as constructive custody prior to arising of cause

of action for claiming such custody again, which

could decide the jurisdiction of the Court under

Section 9 of the Act. Merely because in the

circumstances that upon death of mother of the

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child, the child was removed from the custody of the

father who is the natural guardian of the minor and

was taken away by the maternal grandfather and was

therefore, living away at different plac at Gurgaon,

that would not take away the jurisdiction of the Court

at Nohar, where the father-natural guardian ordinarily

resides and prior to the death of mother of the child,

the child with his mother also used to live.

10. In these circumstances, in present case after

having filed the application under Section 9 of the Act

for claming custody of the child at Nohar, even

though the child was removed from the custody and

was taken away by maternal grandfather to Gurgaon,

Court at Nohar cannot be said to be lacking

jurisdiction in the matter and therefore, the

application under Order 11 Rule 7 CPC filed by

maternal grandfather was rightly rejected by learned

Court below.”

10 Even in Dr. Vinay Samuel Arawattigi’s case, relied

upon by the Family Court for returning the petition, Allahabad

High Court has also observed:-

“13. All these catena of judgments, which have been

quoted above are clear and categorical that only said

District Court has jurisdiction to proceed with the

matter under the Guardians and Wards Act within

whose territorial jurisdiction the minor "ordinarily

resides". The question as to whether said minor

"ordinarily resides" within the territorial jurisdiction of

aforementioned District Court is essentially question

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of fact. When issue is sought to be raised in this

respect, then burden of proving that minor "ordinarily

resides" within the territorial jurisdiction of

aforementioned District Court lies with the applicant,

who is moving an application before the District Court

and Court will have to decide this question on the

basis of the evidence adduced and the facts and

circumstances of each case. The court will have to

see by way of evidence as to whether pleadings,

which have been set up qua forceful deprivation of

custody are rightful pleadings or same has been

mentioned only for the purposes of conferring

jurisdiction. Jurisdiction cannot be permitted to be

usurped and the question ordinary place of residence

of minor, when it is pleaded has been forcibly shifted

has to be decided on the basis of the evidence

adduced and the material available on the record qua

the intention with which minor has been removed,

the period with whom minor has been residing and all

other relevant factors.

13-A…….Last residence, is not at all the relevant

criteria and consideration for conferring jurisdiction,

for the purposes of Section 9 of Guardian and Wards

Act and to the contrary, Court within whose

jurisdiction minor ordinarily resides is the only

relevant criteria for conferment of jurisdiction .

Pleadings qua ordinary place of residence of minor at

Kanpur is conspicuously missing and to the contrary

pleadings on its own suggest, that minor is ordinarily

residing at Miraj. In paragraph 8 respondent has

admitted, that on 2nd birthday of Simran ,

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Respondent went to Miraj and participated in the

same. Residence of minor at Miraj has not at all been

disputed.”

11 After going through judgment of Allahabad High

Court in Dr.Vinay Samuel case, referred supra, it is apparent that

it was observed by said Court that in that case pleadings qua

ordinarily place of residence of minor at Kanpur were

conspicuously missing and to the contrary, pleadings on its own

were suggesting that minor was ordinarily residing at Miraj,

Whereas, in present case, it has been specifically pleaded in

petition that minor was admitted in Modern Public School at

Sanjauli at the age of 3½ years and at present, he is student of

5

th

class in said school and petitioner and respondent No.1, wife

of petitioner, were living with their son at Sanjauli till June, 2020

and it is only on 6

th

June, 2020 when respondent No.1 ran away

with respondent No.2 and also took minor son Lakshay along

with her without knowledge and consent of petitioner.

12 I am in agreement with principle propounded in

aforesaid judgments that to determine the place of ordinarily

residence with reference to provisions of Section 9 of the Act,

place of ordinarily residence of minor would be the place where

minor would have continued to reside but for recent removal of

minor to different place and the words “ordinarily resides” would

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connote, a regular, normal or settled home and not a temporary

or forced one to which a minor might have been removed either

by stealth or by compulsion and place of residence at the time of

the filing of petition under the Act does not help to ascertain

whether a particular Court has jurisdiction to entertain the

proceedings or not as it would be easy to stifle proceedings

under the provisions of the Act by the mere act of moving the

minors from one place to another and consequently, from one

jurisdiction to another.

13 In present case, to determine the jurisdiction of Court

present place of residence of minor is not relevant but the place

of residence of minor prior to arising of cause of action for

claiming custody of minor child would decide the jurisdiction of

Court under Section 9 of Act. While passing the impugned order,

Family Court has failed to appreciate the provisions of Section 9

of Act and material on record in its right perspective and has also

applied the ratio of law of pronouncement relied upon by him

under wrong perception.

14 For material available on record and discussion

herein-above, I am of the considered opinion that appropriate

Court of law for filing the petition by petitioner for custody of his

minor son is Family Court, Shimla.

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15 In view of above, impugned order is quashed and set

aside and petitioner is directed to present his petition before the

District Judge/Family Court, Shimla on 7

th

January, 2021 either in

person or through counsel. Thereafter learned District

Judge/Family Court shall consider the matter in the light of

aforesaid discussion and proceed further by passing an

appropriate order in accordance with law.

16 It is made clear that findings and observations with

respect to facts and effect thereof made herein above, are based

on material available on record and in case, issue of jurisdiction

is disputed by respondents by placing on record further relevant

material, the said issue shall be decided by the Court

uninfluenced by observations of this Court made in herein with

respect to facts and effect thereof but undoubtedly based on

ratio laid down in this judgment.

17. The petitioner is permitted to produce copy of order

downloaded from the High Court website and the trial Court shall

not insist for certified copy of the order, however, they may

verify the order from the High Court website or otherwise.

Petitions stand disposed of.

Dasti copy on usual terms.

January 02, 2021 (Vivek Singh Thakur)

(ms) Judge

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