JUDGMENT

S.J. Chhatpar, J.

1. This appeal is from a decision of the District Judge, Jhalawad, dismissing an application of the Appellant under Section 25, Guardians and Wards Act for custody of his minor son Mulrajsinhji, who is at present about four years old, on the ground that the Court had no jurisdiction, as the ordinary place of residence of the minor at the time when the application was made to the District Judge on 22-11- 52 was at Bandanwada in Ajmer District. The Respondent is the Appellant's wife and the minor's mother, whom the Appellant married in the year 1945. She gave birth to a daughter and a son. The parties used to reside at Raj Charadi, a place about 10 miles from Dhran- gadhra in Jhalawad District. It was alleged that in March 1950, the Respondent had removed the minor from the custody of the Appellant. The Respondent's case, inter alia, was that soon after the birth of the minor, she was obliged to leave owing to ill-treatment and other circumstances, which it is not necessary for me to dilate upon, and since then she and the minor have been residing at Bandanwada outside the jurisdiction of the Court. She consequently raised inter alia the question of jurisdiction as also a further contention that the application under Section 25 of the Guardians and Wards Act was not competent as "the Appellant had at no time custody of the minor and there was therefore no question of the minor's removal from the applicant's custody. The learned District Judge raised two preliminary issues, namely, "(1) whether this Court has jurisdiction to hear this application? (2) whether an application under Section 25, Guardians and Wards Act is competent?" On the first issue, he decided that he had no jurisdiction, as the minor ordinarily resided outside the limits of the jurisdiction of the Court and on the second issue he held that the application was competent, as the Appellant should be deemed to be in custody of the minor observing:

The minor son is removed from Raj Charadi by the opponent and when the applicant who is the father of the minor was living with his wife and children at Raj Charadi even though the actual custody of the minor, he being a young child, may be with the mother, still the applicant was in custody of the son when the son was at Raj Charadi living ' with the applicant and when he has been removed from Raj Charadi by the opponent, it is removal from the custody of the father and an application will lie under Section 25 of the Act.

The Appellant has filed the present appeal contesting the decision of the issue as to jurisdiction, while Mr. M.O. Shah, who appears for the Respondent, has contested the decision on the second issue arguing that the application under Section 25 was not maintainable and that the assumption of facts by the learned District Judge on which he has based his decision was wrong and contrary to the case set up by the Respondent in the objections filed by her.

2. I have heard the learned Advocate Messrs. H.V. Trivedi for the Appellant and M.O. Shah for the Respondent at length on their respective contentions. The learned District Judge has not recorded any evidence on the two issues. His decision on the question of jurisdiction is based on the fact that for 20 months before the date of the application the minor was residing at Bandanwada and on the declared intention of the Respondent that she had no intention to return to her husband and had actually filed a suit for maintenance against him. From these facts the learned District Judge concluded that the minor's ordinary residence was at Bandanwada at the time of the filing of the application and therefore the Court had no jurisdiction.

3. Now Section 4(5), Guardians and Wards Act defines the "Court" and Clause (b) (ii) thereof includes within the definition the District Court, in any matter relating to the person of the ward, having jurisdiction in the place where the ward, for the time being ordinarily resides. Section 9 in its first clause also refers to the District Court having jurisdiction in the place where the minor ordinarily resides. The words used in the Act as to the ordinary residence of the minor have been interpreted by the High Courts. The Lahore High Court in - 'Mt. Nazir Begam v. Ghulam Quadir Khan AIR 1938 Lah 313 (A), observed:

To place a restricted meaning on the words 'for the time being ordinarily resides' in Section 4(5)(b)(ii) so as to interpret them to mean where the minor actually is at the time of the application, would be tantamount to rendering nugatory all the provisions of the Guardians and Wards Act and to making the law helpless against the machination of the recalcitrant persons who do not propose to part with the minor in favour of the appointed guardian. This is especially so in the Punjab where the British Indian States are so closely situated that any person would be able to flout the authority of the highest tribunal of the land by merely walking with the minor into a neighbouring State. Further if a minor is not present at the time of the order appointing the guardian and not physically handed over to the guardian at the time of his appointment, there would be no provision of law to enable the Court to do so afterwards.

The Nagpur High Court in the recent case of - 'Sm. Vimalabai v. Baburao Shamrao AIR 1951 Nag 179 (B), held that under the Hindu Law, the father is the natural guardian of his children and his children must be deemed to reside where he resides. In that case a Hindu minor girl was living in Amraoti continuously for over a year with her father and it was held that she must be , deemed to reside ordinarily at Amraoti, though before going to Amraoti to live with her father after he found employment there, she lived for the greater part of her short life in Nagpur first with her parents and thereafter with her mother; during the period the minor spent with her mother, in Nagpur, after the departure of her father, she must be deemed to be in charge of the mother on behalf of the father who was her natural guardian and hence Nagpur could not be said to be the place of her legal residence. On the other hand, the Bombay High Court in - 'Lakshman Moreshet v. Gangaram Narayan' : AIR 1932 Bom. 592 (C) 5 observed that the only thing which could be said to be at all clear was that residence was a matter of fact and not a matter of presumption and that it could not be presumed that the minor girl ordinarily resided in Poona merely because her husband resided there. It was proved that she had returned to her parents in Khed and that out of the whole of her life she had lived- for about 4 to 5 months in Poona; all the rest of the time she had been residing in Khed in the Ratnagiri District. The Court held that her ordinary residence was in the Ratnagiri District. A subsequent decision of the same Court reported in - 'Chimanlal Ganpat v. Rajaram Magan- chand' : AIR 1937 Bom 158 (D), was also cited as also a previous decision reported in - 'Robert Ward v. Velchand Umedchand 34 Bom 121 (E). A very recent decision of the Allahabad High Court reported in - 'Ram Sarup v. Chimman Lal' : AIR 1952 All 79 (F), was very strongly relied upon by Mr. Shah the learned Advocate for the Respondent, who has also referred to a Rangoon decision reported in - 'Maung Ba Thein v. Mathan Kin AIR 1929 Rang 129 (1) (G), and to the well- known Privy Council case of- 'Mrs. Annie Besent v. Narayaniah : AIR 1914 PC 41 (H). I do not propose to discuss these rulings in detail or give a decision on the question of jurisdiction at present, as I am of the opinion that the question of jurisdiction depends largely on facts peculiar to each case. In the present case the question cannot correctly be decided without having proper evidence on the record.

4. Under the Hindu Law, the father is the natural guardian of the person of his minor child and entitled to its custody, however young it may be, in preference to the mother. (See Mulla's Hindu Law 1952 Edn. 614). When the minor is of tender age and incapable of exercising any volition as regards its residence it must be deemed to be residing at the place where his father ordinarily resides. But the father may by express or implied consent change its residence or may by his conduct be debarred from setting up his own place of residence as the ordinary residence of his child. A minor of sufficient age and understanding may under some circumstances be able to choose his own residence, when, for example, he leaves the protection of his natural guardian owing to ill-treatment or other causes and finds employment and settles down elsewhere. It would be idle for the guardian to contend that his own place of residence should be deemed that of the minor. On the other hand, a minor's kidnapper who has gone to reside elsewhere with the minor can hardly set up his own place of residence as the ordinary residence of the minor for the purpose of jurisdiction unless the lawful guardian has either expressly or impliedly consented or acquiesced in such residence. If it were otherwise, he can Successfully thwart the purpose of the Act by changing his residence from time to time. It all becohies a question of fact depending upon the circumstances under which the minor was removed from the place of residence of his natural guardian, the conduct of the guardian, the period of stay of the minor at the place where jurisdiction is sought to be conferred upon the Court, etc. Mere factual residence at a place at the time of the proceeding is not sufficient to give jurisdiction to the place. The words used are not simply where the minor resides but where the minor ordinarily resides. The word 'ordinarily' has been intentionally used to bring in considerations other than that of mere factual residence. I am therefore of the opinion that it was improper for the District Judge not to have recorded evidence about the circumstances under which the parties lived and parted from each other and whether as alleged by Mr. Shah for the Respondent, the Appellant had debarred himself by consenting or acquiescing to the minor living with his mother as he intended to marry Anr. wife. I therefore set aside the decision of the learned District Judge on the issue as to jurisdiction and remand the case to him for recording evidence and deciding the issue in accordance with law.

On the second issue whether the application was maintainable, Mr. Shah's contention is that the order is based upon a misconception of the pleas set up by the Respondent. Nowhere has the Respondent admitted as stated by the learned District Judge that the minor along with her was living at Raj Charadi and that therefore the father should be deemed to be in the actual custody of the minor. The Respondent's case has been that at the time of the birth of the child at some hospital at Dhrangadhra, the father was actually not residing at Raj Charadi but elsewhere and that after the birth the Respondent took the minor with herself and left Dhrangadhra for good and she has not since returned to the original place Raj Charadi and has no intention of returning. Under the circumstances, the minor should be deemed to have never been in the custody of the Appellant to sustain an application under Section 25, Guardians and Wards Act. The question relating to this issue also depends upon evidence, which the learned District Judge has not recorded. I therefore set aside the decision on this issue also and remand the case to him to record evidence on this issue as well and dispose of the case in accordance with law. Costs to abide by the result of the case.