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Tilak Raj Kapoor v. Smt. Asha Kapoor
Factual and Procedural Background
This appeal arises under section 47(b) of the Guardians and Wards Act, 1890, challenging the order of the District Judge, Jodhpur dated September 18, 1978, which dismissed the father's application under section 25 of the Act. The father sought the return of his minor son, who had completed seven years, to his custody. At the time of filing, the minor was living with his mother at Bharatpur. It was admitted that since 1974, the minor had resided at Bharatpur and for two months stayed at the maternal grandparents' house. The application was submitted in the court at Jodhpur, but an objection was raised that the minor “ordinarily resides” within the jurisdiction of Bharatpur, thus depriving the Jodhpur court of jurisdiction. The District Judge at Jodhpur upheld this objection and dismissed the application, prompting the father to appeal.
Legal Issues Presented
- Whether the principle of the minor's “ordinary residence” under section 9 of the Act applies to applications filed under section 25 of the Act.
- Which court has jurisdiction to entertain an application under section 25 of the Guardians and Wards Act: the court where the minor ordinarily resides or another court.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the principle of the minor’s “ordinary residence” as mentioned in section 9 does not apply to applications under section 25 of the Act.
The opinion does not contain a detailed account of the respondent’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maung Ba Thein v. Ma Than Kin | An application under section 25 must be made to the court where the minor ordinarily resides. | Reinforced the necessity of jurisdiction being based on the minor’s ordinary residence for section 25 applications. |
| Chimanlal Ganpat v. Rajaram Maganchand Oswal | Jurisdiction under section 25 requires the minor to be ordinarily resident within the court’s local limits. | Supported the interpretation that “Court” as defined in section 4(5) must have jurisdiction where the ward ordinarily resides. |
| Shah Harichand Ratanchand v. Virbbal | Section 25 uses “the Court” defined as the District Court having jurisdiction where the minor ordinarily resides, not where the father resides. | Confirmed the legislative intent that jurisdiction depends on the minor’s ordinary residence, not the guardian’s residence. |
| Keshawanand Gupta v. Afroza Begum | Jurisdiction under the Act (sections 4(5), 9, and 25) is limited to the District Court where the minor is ordinarily resident. | Established that courts lack jurisdiction when the minor is not ordinarily resident within their territorial limits. |
Court's Reasoning and Analysis
The court examined the statutory provisions governing jurisdiction under the Guardians and Wards Act, particularly sections 4(5), 9, and 25. Section 25(1) empowers the Court to order the return of a ward if it is in the ward’s welfare, and “the Court” is defined in section 4(5) as the District Court having jurisdiction to entertain guardianship applications. Section 9 mandates that applications concerning guardianship of the person of the minor must be made to the District Court where the minor ordinarily resides. The court reasoned that the same principle of ordinary residence applies to section 25 applications, as jurisdiction is circumscribed by the minor’s ordinary residence within the court’s territorial limits. The court relied on precedents affirming that no District Court can entertain a section 25 application unless the minor ordinarily resides within its jurisdiction. Since the minor had been residing at Bharatpur, the District Judge at Jodhpur correctly held it lacked jurisdiction. The court found the appellant’s contention—that ordinary residence under section 9 does not apply to section 25—devoid of merit.
Holding and Implications
The appeal is rejected summarily.
The direct effect of this decision is the affirmation that jurisdiction under section 25 of the Guardians and Wards Act lies exclusively with the District Court where the minor ordinarily resides. The dismissal of the father’s application by the District Judge, Jodhpur, is upheld. No new precedent was established beyond the clear application of existing statutory provisions and case law.
S.K Mal Lodha, J.:— This appeal under section 47(b) of the Guardians and Wards Act, 1890 (No. VIII of 1890) (hereinafter referred to as ‘the Act’) is directed against the order of the learned District Judge, Jodhpur dated September 18, 1978 by which she dismissed his application under S. 25 of the Act. It may be stated here that the learned counsel for the father (applicant before the District Judge) stated before her that it is not necessary to return the application for presentation to the proper court as another application will be submitted in the court at Bharatpur if the father-applicant so likes. The appellant submitted an application under S. 25 of the Act against the respondent for return of the minor son of the parties who had completed seven years in March 1978, to his custody. In para 4 of the application, it was mentioned that the minor, at the time of its presentation, was living with his mother at Bharatpur. It was also admitted by the learned counsel for the father-applicant before the learned District Judge that after 1974, the minor has resided and has been residing at Bharatpur and that for two months, he remained at the house of the parents of the mother. This application under section 25 of the Act was submitted in the court at Jodhpur. An objection was raised that in view of the averments made by the father-applicant in the application, it is clear that the minor ‘ordinarily resides’ within the jurisdiction of the District Judge at Bharatpur, and therefore, the learned District Judge at Jodhpur cannot entertain and decide the application. This objection prevailed with the learned District Judge, Jodhpur and she held that the Court of the District Judge at Jodhpur has no jurisdiction to entertain the application. In these circumstances, she dismissed the application of the father applicant by her order dated September 18, 1978. The father applicant has preferred this appeal.
2. I have heard the learned counsel for the appellant at some length. His only contention is that the principle where the minor ‘ordinarily resides’ which is mentioned in section 9 of the Act, is not applicable to the applications which are filed under section 25 of the Act. I have given my most anxious and thoughtful consideration to the contention raised and have reached the conclusion that it is devoid of force. I may reproduce here section 25(1) of the Act, which is material for the disposal of this appeal,—
“25.(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return…………..”
Section 4(5) of the Act defines ‘the Court’ to mean,—
“a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian;”
Section 25(1) uses the expression ‘the Court’. This expression has been defined in section 4(5)(a) to mean the Disirict Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian Section 9 deals with the appointment of guardian of the person and property of the minor. Sub-sections (1) and (2) of S. 9 of the Act run as under,—
“(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.
(2) If the application is with respect to the guardianship of the property of the minor it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.”
It is, therefore, clear that an application with respect to the guardianship of the person of the minor has to be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The test, therefore, which the Legislature has provided is that the court which has jurisdiction for hearing an application under section 25(1) of the Act is the Court where the minor ordinarily resides and with whom the minor must be deemed to have been in constructive custody. It is, therefore, clear that in order to give the court jurisdiction under section 25, the minor must be ordinarily resident within the local limits of the jurisdiction of the court. In Maung Ba Thein v. Ma Than Kin (1), it was observed as under,—
“An application under S. 25 accordingly must be made to the court where the minor ordinarily resides.”
The matter was considered by a Division Bench of the Bombay High Court in Chimanlal Ganpat v. Rajaram Maganchand Oswal (2), wherein it was observed as follows,—
“….in order to give the Court jurisdiction under S. 25, the minor must be “ordinarily resident” within the local limits of the jurisdiction. That is provided, so far as the appointment of a guardian is concerned, by S. 9(1) and as regards S. 25, the word “Court” is mentioned there and “Court” is defined in S. 4(5) as the District Court having jurisdiction in the place where the ward for the time being ordinarily resides…..”
Section 25(1), 9(1) and 4(5)(a) of the Act also came up for consideration before a Division Bench of the Gujarat High Court in Shah Harichand Ratanchand v. Virbbal (3). After examining the various authorities, it was observed,—
“Section 25(1), however, has categorically used the expression “the Court” which has been statutorily defined in Section 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under Section 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. Therefore, the legislature has statutorily defined the Court for the purposes of Section 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody…..”
This Court, in Keshawanand Gupta v. Afroza Begum (4) held as under,—
“….Thus, reading Ss. 4(5), 9 and 25 together, it will be apparent that the jurisdiction under the Act is in the District Court whether the application is under S. 9 or S. 25 and the minor must be ordinarily resident in a place over which the District Court has jurisdiction. The jurisdiction, therefore, of the Court under the Act is circumscribed by the condition that the minor must be ordinarily resident within the jurisdiction of the District Court concerned.
Where the minor is not ordinarily resident within the jurisdiction of the District Court concerned, the District Court will have no jurisdiction to proceed under the Act….”
It follows from the cases referred to above that where the minor is not ordinarily resident within the jurisdiction of the District Court concerned, it will have no jurisdiction to proceed under the Act. It is, therefore, clear that the Court within whose local limits of jurisdiction the minor is ordinarily resident has jurisdiction to entertain the application under S. 25 of the Act. In this case, as is clear from the averments made in the application under S. 25 that since 1974 and at the time of the presentation of the application, the minor was residing at Bharatpur with his mother. For the aforesaid reasons, the judgment of the learned District judge is correct in law.
3. The result is that there is no merit in this appeal and it is, accordingly, rejected summarily.
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