Per Court:— Judgment and order handing over custody of minor daughter Mihira to the applicant in Misc. Civil Application No. 44/2010 by Page: 806District Judge-2, Ambajogai is assailed in the present appeal on the issue of jurisdiction.
2. Mr. Salunke, learned Advocate for the appellant submits that the minor Mihira, daughter of the appellant and the respondent - now aged about 12 years (bom on 25-9-2000), was/is residing at Madnapalli, District Chittoor (Andhra Pradesh), and as such, the learned District Judge, Ambajogai had no jurisdiction to entertain, try and dispose off the Misc. Civil Application Tor the custody of the minor as per section 9 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956. section 9 of the Guardians and Wards Act, 1890 reads as under:
“9. Court having jurisdiction to entertain application, — (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.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.
3. It makes it abundantly clear that an application for 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. Perusal of the application made before the District Judge, Ambajogai reveals that the applicant, wife of the respondent, stayed with the respondent, the appellant herein - her husband, till she was driven out of the matrimonial home and forced to reside with her father at Parli, within the jurisdiction of the District Court, Ambajogai and as she resides within the territorial jurisdiction of the District Court, Ambajogai, the District Court, Ambajogai has jurisdiction to entertain, try and dispose off the said application. Issue of jurisdiction was raised by the answer to the application filed by the appellant on 22-6-2011.
4. Learned District Judge, while answering this issue, did observe that section 9 of the Guardians and Wards Act requires filing of the application for custody of minor child generally at the place where minor ordinarily resides. However, the learned District Judge observed that the applicant has no other source of income or help to or prosecute the proceedings at Madnapalli (Andhra Pradesh) and the application for custody of the minor daughter has to be decided according to provisions of Hindu Minority and Guardianship Act, 1956 and, therefore, it has jurisdiction to entertain, try and dispose off the said application.
5. It is true that parties are Hindus and their substantive rights to the guardianship are spelt out by the Hindu Minority and Guardianship Act, 1956. However, the issue of jurisdiction needs to be answered by the supplementary provisions of section 9 of the Guardians and Wards Act, 1890. Nowhere the relevant provision takes into account the economic condition or resourcefulness Page: 807of the parties to the proceedings for guardianship. Issue of guardianship of the person of minor concerns the minor and as such, it is the District Court in whose jurisdiction the minor ordinarily resides, has the jurisdiction to entertain, try and dispose off the issue concerning the guardianship and this has been adequately expressed in sub-section (1) of section 9 of the Guardians and Wards Act, 1890. It appears that the learned District Judge was swayed by the economic condition of the applicant rather than by the provisions of law. Learned District Judge thus fell in error in concluding that it had a jurisdiction to entertain, try and dispose off the application for guardianship of minor Mihira who then resided at Madnapalli, District Chittoor (Andhra Pradesh). Impugned order has thus been passed without jurisdiction and deserves to be set aside. Order dated 5-12-2011, passed by the learned District Judge, Ambajogai in Misc. Civil Application No. 44/2010 is, therefore, set aside and the applicant is directed to present her application for custody of the minor Mihira to the Court of competent jurisdiction. First Appeal No. 51/2012 thus stands disposed off. Consequently, Civil Application No. 346/2012 therein stands disposed off.
Order accordingly.
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