Jurisdiction of court in case Minor is forcibly taken to jurisdiction of other court

A temporary residence at a particular place or residence by compulsion at a place however long cannot be treated as the place of ordinary residence. Similarly, the words "ordinarily resides" are not identical and cannot have the same meaning as "residence at the time of application". The purpose for using the expression "where the minor ordinarily resides" is probably to avoid the mischief that a minor may be stealthily removed to a distant place and even if he is forcibly kept there, the application for the minor's custody could be filed within the jurisdiction of the District Court from where he had been removed or in other words, the place where the minor would have continued to remain but for his removal".

Punjab-Haryana High Court

Jasbir Singh -- vs Krishna Devi -- on 30 November, 2009

FAO No. 358 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh. FAO 358 of 2010 (O&M)
Decided on 03.5.2010.
Jasbir Singh -- Appellant vs.
Krishna Devi --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Citation; AIR 2011 (NOC)30 P&H

This revision petition is directed against the order of Guardian Judge cum Civil Judge (Senior Division), Kapurthala, dated 30.11.2009, who has dismissed the petition filed by the appellant under Section 25 of the Guardian and Wards Act,1890 (for short, the Act) on the ground of lack of territorial jurisdiction.

Brief facts of the case are that parties to the dispute are Christians who got married on 28.11.1997 as per Christian religious rites at village Seeowal. Their marriage was registered at village Khera Post Office Jamsherpur, District Jalandhar. They were blessed with three children, who are residing at the house of the petitioner in village Hothian, District Kapurthala and are studying in Tara Singh Memorial College/School Dhaliwal Bet, Kapurthala. It is alleged by the petitioner FAO No. 358 of 2010 2 that while he was away, the respondent had taken away all the children from his house about two months ago from the care and custody of their natural guardian and father and in order to secure their custody, he had to file this application under Section 25 of the Act.

Upon notice, the respondent did not appear and was proceeded against exparte before the Court below.

In his ex-parte evidence, the petitioner examined five witnesses. However, the Court below dismissed his application on the ground of lack of jurisdiction observing that the respondent is now residing in village Seeowal, Post Office Gill Tehsil Nakodar, District Jalandhar and all the three children are also in the custody of the respondent, therefore, the Court at Kapurthala had no territorial jurisdiction. Notice of motion was issued in the present appeal. The respondent did not appear despite service and was proceeded against ex- parte on 1.4.2010.

Learned counsel for the appellant has vehemently argued that the order passed by the Court below is patently illegal as the minors have been removed from his custody from Kapurthala, therfore, the Court at Kapurthala had the territorial jurisdiction and not the Court at Jalandhar as the children were ordinarily residing at Kapurthala. He has placed reliance upon a decision of Orissa High Court in the case of Konduparthi Venkateswarlu and others Vs. Ramavarapu Viroja Nandan and others AIR 1989 Orissa, 151 and also a decision of this Court in the case of Parshanat Chanana Vs. Mrs. Seema alias Priya 2010 (1) RCR (Civil) 400.

In the case decided by the Orissa High Court, it was held FAO No. 358 of 2010 3 as under:-

"A temporary residence at a particular place or residence by compulsion at a place however long cannot be treated as the place of ordinary residence. Similarly, the words "ordinarily resides" are not identical and cannot have the same meaning as "residence at the time of application". The purpose for using the expression "where the minor ordinarily resides" is probably to avoid the mischief that a minor may be stealthily removed to a distant place and even if he is forcibly kept there, the application for the minor's custody could be filed within the jurisdiction of the District Court from where he had been removed or in other words, the place where the minor would have continued to remain but for his removal".

In the aforesaid decision of this Court, it was held as under:-

"Section 9 (1) makes if clear that it is the ordinary place of residence of minor which determines the jurisdiction of a particular Court to entertain an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the challan. The term 'residence' is an elastic word of which an exhaustive definition cannot be given. It is differently construed according to the purpose for which enquiry is made into meaning of the term. The sense in which it should be used is controlled FAO No. 358 of 2010 4 by reference to the objector. A reasonable meaning of 'residence' would mean dwelling in a place for some continuous time. The word 'ordinarily resides' in sub Section 1 means mere a temporary residence even though, it will be of such temporary residence may be considerable. Word ordinarily resides would mean a regular normal a settled home or a regular place of abode which can be distinguishable from a temporary or a forced stay. If a minor child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child 'ordinarisly resides' ".

I am fully in agreement with the arguments raised by learned counsel for the appellant as the case laws referred to above are fully applicable to the facts of the case in hand. In view of the above this appeal is allowed. The impugned order is set aside and the matter is remanded back to the Court of Guardian Judge- Civil Judge (Senior Division), Kapurthala, with a direction to decide the dispute between the parties in accordance with law and the parties are directed to appear before the Court below on 25.5.2010. 03.5.2010

RR (Rakesh Kumar Jain) Judge