1. The parties to this application, both doctors, tied the nuptial knot on July 1, 2022 according to Hindu rites and customs. Their marriage was also registered under the Hindu Marriage Act, 1955. In their wedlock, a male child, Master Soham Laskar, was born on November 6, 2003.
2. It is alleged by the petitioner that after his marriage with the opposite party, they started living together as husband and wife at the matrimonial home of the opposite party at GD 132, Sector III, Salt Lake, Kolkata 700106, Police Station-Bidhannagar (South) till May 9, 2008. On that date, the opposite party removed Master Soham from the custody of the petitioner without his knowledge and consent as well as the other members of his family, viz. widow mother and unmarried younger brother. Leaving of her matrimonial home by the opposite party together with Master Soham is attributed to matrimonial disharmony between the spouses.
3. Unfortunately, the discord between the spouses led to filing of various proceedings including proceedings under the Code of Criminal Procedure as well as lodging of complaint under sections 498A/406/34 of the Indian Penal Code against the petitioner, his mother and his brother. On an application under section 125 of the Code of Criminal Procedure, the learned Magistrate passed an order on May 20, 2010 granting maintenance to the opposite party. The order was challenged before this Court in its criminal revisional jurisdiction and in terms of an interim order passed thereon, a consolidated sum of Rs. 11,000/- per month is being paid by the petitioner.
4. The opposite party on February 10, 2009 had filed an application under section 7 read with section 10 of the Guardians and Wards Act, 1890 (hereafter the Act) in the Court of the learned District Judge, Alipore, South 24-Parganas, giving rise to Act VIII Case No. 28 of 2009 against the petitioner.
5. While hearing an application under section 12 of the Act read with section 151 of Code of Criminal Procedure filed in connection therewith, the learned District Judge had the occasion to interact with Master Soham. By an order dated February 10, 2009, the learned District Judge refused to pass order for interim custody at this stage and directed issuance of notice to the petitioner.
6. Before institution of Act VIII Case No. 28/2009 by the opposite party, the petitioner had filed an application under section 25 read with section 12 of the Act in the Court of the learned District Judge, Barasat, North 24 Parganas on January 20, 2009, giving rise to Act VIII Misc. Case No. 32/2009. It is suggested by the petitioner that Act VIII Case No. 28/2009 filed by the opposite party is nothing but a counterblast on receiving notice of Act VIII Misc. Case No. 32/2009.
7. On receiving the application giving rise to Act VIII Misc. Case No. 32/2009, the learned District Judge, North 24 Parganas passed an order on February 3, 2009 whereby instead of making any ad-interim arrangement for interim custody of Master Soham, the spouses were directed to carry out the arrangement made by the learned Executive Magistrate, 2nd Court at Alipore on December 26, 2008 in its letter and spirit, in order to avoid any future complication. The Officer-in-Charge, Jadavpur Police Station was directed to ensure that the said order dated December 26, 2008 is complied with by the spouses and to render assistance in so far as handing over and taking over of Master Soham from time to time fixed by that Court. By the order dated December 26, 2008 the learned Executive Magistrate had directed as follows :
“Order dated 26.12.08….F.P filed Hazira. P.R is in which is challenged by the O.P, through a petition as stated therein. O.P also filed a petition which is kept in the C.R After perused of the petition, order dated 25.11.08 is hereby modified to the extent that both parties are directed to attend to the Psychiatrist and councellor of their choice for their betterment of medical health and O.P is allowed to take his son (Soham) on Friday and Saturday to the residence, i.e G.F-132; Sector-3; Salt Lake City; P.S Bidhannagar (South), Kolkata-700106, and return him on Sunday morning to the F.P Inform O/C Jadavpore P.S accordingly. Considering the petition challenging the P.R, let the copy of the petition be sent to the O/C to enquire the matter personally and send report by 22.01.09 positively.
To 22.01.09 for compliance.”
8. The opposite party challenged the order dated February 3, 2009 before this Court by invoking its civil revisional jurisdiction, giving rise to C.O 499/2009. The revisional application came up for consideration on July, 10, 2009 before a learned Judge of this Court. It was noted by the learned Judge that the order of the learned Executive Magistrate had already been set aside by this Court. In view of such fact, it was observed in the order passed on that date that the revisional application had practically become infructuous. However, on consideration of the contention advanced on behalf of the opposite party to the effect that the learned District Judge, North 24 Parganas lacked the jurisdiction to entertain the application filed by the petitioner giving rise to Act VIII Misc. Case No. 32/2009, the learned Judge directed the parties to complete their pleadings on the point of maintainability before entering into the merit of the application filed under section 25 read with section 12 of the Act. Without disturbing the present arrangement of Master Soham staying with the opposite party for the time being, it was directed that the petitioner shall be allowed to take him from the custody of the opposite party every Saturday at 2.00 p.m and return him on the following day i.e Sunday by 8.00 a.m During the time Master Soham would remain in the house of the petitioner, he shall not be taken beyond the municipal limits of the Kolkata Municipal Corporation without leave of Court. Such arrangement was made in consultation with the parties who were present in Court, so that the attention of Master Soham is not effected in any way.
9. Incidentally, the opposite party had also moved this Court by filing an application under section 24 of the Code of Civil Procedure praying for transfer of Act VIII Misc. Case No. 32/2009 to the Court of the learned District Judge, South 24 Parganas. In view of the order dated July 10, 2009 passed on C.O 499/2009, the application stood disposed of.
10. In terms of directions passed by the learned Judge on July 10, 2009, point of maintainability of Act VIII Misc. Case No. 32/2009 was considered by the learned District Judge, North 24 Parganas. By order No. 14 dated September 11, 2009, the learned District Judge observed as follows :
“25. In the conspectus of the facts and circumstances above, my humble estimate would be that ordinary residence of Soham is at 4/5/2, Bank Colony, Dhakuria, P.S Jadavpur where he is residing with his mother Dr. Sanjukta Laskar. That being the view of this Court, I am afraid, this Court lacks jurisdiction to entertain the petition under section 25 of the Guardianship and Wards Act filed by Dr. Subhodeep Laskar, the father of Soham.
26. In view of the facts above, I return the petition to the petitioner Dr. Subhodeep Laskar for filing the same in the Court of Ld. District Judge, 24 Parganas (South), Alipore who is having territorial jurisdiction over the issue in view of section 25 of the Act.
27. The Misc. case is, thus, disposed of.”
11. The order dated September 11, 2009, was challenged by the petitioner by filing a civil revisional application under Article 227 of the Constitution before this Court giving rise to C.O 3161 of 2009. The said application came up for consideration before the selfsame learned Judge who considered C.O 499 of 2009. In His Lordship's order dated September 17, 2009 it was observed that the impugned order dated September 11, 2009, by which the application was returned to the petitioner for presentation thereof in the Court of the learned District Judge at Alipore, South 24 Parganas which has territorial jurisdiction over the issue, could be treated as an order passed following provisions contained in Order VII Rule 10 of the Code and such order was appellable in terms of provisions contained in Order XLIII Rule 1(a) thereof. His Lordship, therefore, refused to entertain the revisional application. However, since appeal against the impugned order would lie before this Court, His Lordship converted the revisional application into a memorandum of appeal and granted leave to the petitioner to cause necessary amendments for the revisional application to be treated as memorandum of appeal.
12. Necessary amendment having been caused, the revisional application was converted and registered as first miscellaneous appeal, being FMAT No. 1584 of 2009 (since renumbered FMA No. 1365 of 2009).
13. The first miscellaneous appeal came up for consideration before a Division Bench of this Court on September 23, 2009. Mr. Chatterjee, learned advocate for the opposite party by relying on the decision of the Supreme Court reported in AIR 1965 SC 1798 (Nawab Usman Ali Khan v. Sagarmal ) contended that the appeal itself is not maintainable. However, the Division Bench was of the view that the point of maintainability of the appeal may be decided, before deciding any other issue, on the next occasion considering that it was the last date before Puja vacation. However, pending disposal of the interim application filed in connection with first miscellaneous appeal, an interim order was passed permitting Master Soham to remain with the petitioner on September 27, September 28 and September 29, 2009 and the petitioner was directed to return him to the opposite party before 6.00 p.m of September 30, 2009 positively.
14. The petitioner by way of abundant caution had filed a further civil revisional application being C.O 3450 of 2009 challenging the selfsame order No. 14 dated September 11, 2009. Another learned Judge of this Court considered the said application on November 24, 2009, when it was directed that the same be placed before the Division Bench in seisin of FMAT No. 1584 of 2009.
15. The interim application filed in connection with FMA 1365 of 2009 together with C.O 3450 of 2009 came up for consideration on April 6, 2010 before a Division Bench comprising Subhro Kamal Mukherjee and I.P Mukherji, JJ. on April, 2010. The following order was passed :
“When this matter is taken up for hearing, Mr. Ashok Banerjee, learned Senior Advocate, appearing for the appellant suggests that if his client gets reasonable access to the child, his client is ready and willing to withdraw all proceedings against the mother for custody of the child.
By consent of the parties, we, therefore, direct that the father or in his absence, the grand-mother may collect the child from the residence of the mother on Friday evening at 8 p.m and shall return the child in the custody of the mother on Sunday by 9-30 a.m
We trust and hope that good sense shall prevail on the parties and the child shall not be mentally tortured to satisfy their egos. During the summer holidays the child shall be staying with the mother while during the puja holidays and in the christmas holidays the child shall be staying with the father.
However, by mutual arrangement, during the summer holidays, puja holidays and christmas holidays, the child could go to the residence either of the father or the mother irrespective of the custody.
In view of the order passed today, Mr. Banerjee, learned Senior Advocate appearing for the appellant prays that this appeal and all connected applications may be disposed of accordingly.
We, therefore, dispose of the appeal and the connected applications.
We make no order as to costs.”
16. The aforesaid facts in the background, an application was filed by the petitioner before the learned District Judge objecting to maintainability to Act VIII Case No. 28/2009 filed by the opposite party on June 6, 2009. On contested hearing, the learned Additional District Judge, 10th Court at Alipore was pleased to pass order No. 16 dated September 30, 2010, operative portion whereof is set out hereinbelow :
“*** In our present case, admittedly the petitioner/mother had been living in her matrimonial house at Salt Lake after marriage as per social norms. Sohan was staying with her parents at Salt Lake since his birth and that was natural. The scenario was changed rapidly due to exposure of differences and discontents between the petitioner/mother and the O.P/father of Sohan and as a result the petitioner/mother along with her son Sohan were ousted from her matrimonial house at Salt Lake by her husband/O.P on 9.5.08, as I find from the findings and judgement of the ld. A.C.J.M, Alipore in Misc Case No. 18/09, and since then the son-Sohan has been staying with his mother at 4/5/2, Bank Coloney, Dhakuria, P.S Jadavpur. So it is clear that Sohan has been living with his mother all along since his birth uninterruptedly and they have never been separated and the O.P/father allowed Sohan to live with his mother at Dhakuria, P.S Jadavpur since 9.5.08 till the date of filing of the case on 10.2.00 and from there the schooling and everything of Sohan are going on uninterruptedly. Such uninterrupted stay of Soham with his mother since 9.5.08 at 4/5/2, Bank Coloney, Dhakuria, P.S Jadavpur can well be said as ordinary residence of Sohan within the meaning of section 9(1) read with section 4(5)(ii) of the Guardians and Wards Act. That ordinary residence of Soham at 4/5/2, Bank Coloney, Dhakuria, p.s Jadavpur gives jurisdiction to this Court to hear and to try Act VIII case No. 28/09 filed by the petitioner - Smt. Dr. Sanjukta Laskar (nee Sarkar). Therefore, I have no hesitation to hold that this Court has jurisdiction to hear and to try the Act VIII Case No. 28/09 filed by the petitioner/Dr. Sanjukta Laskar. As such I find and hold that the petition for non-maintainability of Act VIII Case No. 28/09 filed by the O.P/Subhadip Laskar has got no merit and it deserves rejection.
Hence, it is
Ordered
that the application for non maintainability of Act VIII Case No. 28/09 filed by the O.P/Dr. Subhadip Laskar on 06.09.09 stands dismissed on contest but without cost.
Fix 20-1-2011 for filing written statement/objection by the O.P/Dr. Subhadip Laskar.
Dictated & Corrected by me Addl. District JudgeA.D.J 10th Court, Alipore.”
17. The petitioner has questioned the propriety and legality of order No. 16 dated September 30, 2010, passed by the learned Additional District Judge, 10th Court at Alipore, South 24 Parganas in Act VIII Case No. 28/2009 by filing the present civil revisional application under Article 227 of the Constitution.
18. Mr. Asok Banerjee, learned Senior Advocate appearing for the petitioner contended that the learned Additional District Judge acted illegally in the exercise of his jurisdiction in not holding Act VIII Case No. 28/2009 to be not maintainable. Referring to section 9(1) of the Act and particularly to the expression “where the minor ordinarily resides”, it was submitted that the learned Judge misconstrued such provision and erroneously came to a finding that uninterrupted stay of Master Soham with the opposite party since May 9, 2008 at the residence at Dhakuria, Police Station Jadavpur could be treated as his ordinary residence within the meaning of section 9(1) of the Act read with section 4(5)(ii) thereof.
19. According to Mr. Banerjee, the opposite party removed Master Soham from his ordinary place of residence at Salt Lake without the notice and knowledge of the petitioner and his other family members by stealth and such removal to a place, which is different from the place where the minor child was residing prior to such removal, cannot be construed as the place where he “ordinarily resides” for the purpose of section 9 of the Act.
20. It was submitted, as and by way of example, that if a child is stealthily removed by the mother from the residence of the father and is admitted in a boarding school at a far off place and thereafter an application for guardianship is required to be filed, the District Court within whose jurisdiction the boarding school is located cannot be construed to have jurisdiction to entertain and try the application for guardianship. He urged the Court to apply the same analogy and to hold that the District Court of South 24 Parganas did not have the jurisdiction to entertain the application of the opposite party for having custody of Master Soham.
21. In support of his contention, Mr. Banerjee heavily relied on the decisions of learned single Judges reported in AIR 2010 Punjab & Haryana 99 (Parshant Chanana v. Mrs. Seema alias Priya), AIR 1989 Orissa 151 (Konduparthi Venkateswarlu v. Ramavarapu Viroja Nandan) and AIR 1983 Madras 9 (Bhagyalakshmi v. K. Narayana Rao), and a Bench decision of the Allahabad High Court reported in AIR 2003 Allahabad 317 (Jagdish Chandra Gupta v. Dr. Ku. Vimla Gupta).
22. He, accordingly, prayed for an order holding Act VIII Case No. 28/2009 instituted before the learned District Judge, South 24 Parganas to be not maintainable on account of lack of jurisdiction and for its consequent dismissal.
23. Mr. Chatterjee, duly assisted by Mr. Karmakar, learned Advocate representing the opposite party resisted the application by contending that the learned Additional District Judge had rightly answered the objection in respect of maintainability of Act VIII Case No. 28/2009 by ruling against the petitioner. According to him, it is an admitted case of the petitioner that discord between the spouses led the opposite party to leave her matrimonial home with Master Soham and she started living in her parent's residence at Dhakuria, Police Station Jadavpur within the jurisdiction of the District Court of South 24 Parganas. As such the ordinary place of residence of Master Soham must held to be at Dhakuria and, therefore, the learned Additional District Judge had rightly ruled that Act VIII Case No. 29/2009 was maintainable before him.
24. In support of his contention, Mr. Chatterjee first relied on the decision reported in 2005 (11) SCC 66, Bhagwan Das v. Kamal Abrol, wherein, meaning of the word ‘residence’ in the context of allotment of dealership for LPG came up for consideration. Next, reliance was placed by him on the decision of the Supreme Court reported in 2006 (7) SCC 1, Kuldeep Nayar v. Union of India wherein, while considering a writ petition under Article 32 of the Constitution challenging amendments made in the Representation of People Act, 1951, it was held that the words ‘ordinarily’ and ‘resident’ used in statutory provisions do not require that the person should be one who is always resident or carries on business in the particular place and that even when qualified by the word ‘ordinarily’, the word ‘resident’ would not result in a construction having the effect of 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. The decision reported in AIR 1982 SC 3 (Jeewanti Pandey v. Kishan Chandra Pandey) was also relied on wherein, in the context of clause (ii) of section 19 of the Hindu Marriage Act the word ‘resides’ was ruled to mean the actual place of residence and not a legal or constructive residence and that the word ‘reside’ is a flexible one having many shades of meaning and must take its colour and content from the context in which it appears and cannot be read in isolation.
25. The decisions reported in AIR 1944 Cal 433, In the matter of Lovejoy Patell; AIR 1988 Gauhati 22, Shri Amal Saha… v. Smt. Basana Saha…Opp. Party. and AIR 1986 Smt. Aparna Banerjee… v. Tapan Banerjee…. were also cited by Mr. Karmakar where the expression “ordinarily resides” in section 9 of the Act were considered, and it was submitted that Master Soham being ordinarily resident at Dhakuria, Police Station Jadavpur, his mother being the opposite party was justified in instituting Act VIII Case No. 29/2008 before the learned District Judge, South 24 Parganas.
26. Accordingly, he prayed for dismissal of the revisional application.
27. I have heard learned Advocates for the parties and considered the decisions cited at the bar.
28. At the outset I consider it appropriate to take note of the law laid down by the various High Courts of the country, both in the decisions cited by learned Advocates for the respective parties and in those not cited, regarding interpretation of the last few words of section 9(1) of the Act, with which we are concerned here.
29. Of all the cited decisions, the first one was decided by this Court before the independence of our country. In Lovejoy Patell (supra), the minors ordinarily resided and attended schools at Calcutta within the jurisdiction of this Court from 1938 to February, 1942. They were then sent to Darjeeling for their education, where they stayed till November, 1942. During the annual vacation, they returned to Calcutta and stayed at the applicant's residence on Beadon Street, within the jurisdiction of this Court, till January, 1943. The applicant applied to this Court on March 8, 1943 for her appointment as guardian of the person of the minors. These facts to the mind of the learned Judge were sufficient to indicate that the minors ordinarily resided within the ordinary original civil jurisdiction of this Court. The decision reported in AIR 1940 Allahabad 329, Mt. Lalita Twaif v. Paramatma Prasad was found in point with which the learned Judge agreed.
30. In Mt. Lalita Twaif (supra), the learned Judge had the occasion to observe that the fact that a minor is found actually residing at a place at the time the application is made does not determine the jurisdiction. It must be proved where the minor ordinarily resides, as laid down in section 9(1) of the Act.
31. In Bhagyalakshmi (supra) the learned Judge was called upon to decide whether the minor children ‘ordinarily resided’ at Komarapalayam within the jurisdiction of the District Court at Salem and, therefore, the application under the Act was rightly laid before such Court or not. The question was answered in the affirmative. In the process, it was observed that:
“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 (sic removing) 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 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 minors, it is rather difficult to impute any such intention to them. It has also to 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.***”
32. In Aparna Banerjee (supra), the learned Judge on the facts before him held that the ordinary place of residence of the minor child was at Calcutta where he was residing with his mother for the last three years. His Lordship agreed with the interpretation placed on the words “the place of ordinary residence of the minor” in the Bench decision reported in AIR 1954 Saurashtra 152, Bai Shri Arunkumari v. Jhala Harpalsingh Natwarsingh and the decision of the learned Judge in AIR 1978 Andhra Pradesh 13, Harihar Pershad Jaiswal v. Suresh Jaiswal.
33. In Bai Shri Arunkumari (supra), the Bench observed :
“3.*** but there is no presumption that the minor is deemed to reside at the place where his natural guardian resides, and the place of residence of the natural guardian is not the determining factor in deciding the question of the Court's jurisdiction, except as one of the circumstances to be considered in determining the ordinary place of residence of the minor. Even if such presumption can be raised, it is a weak presumption liable to be easily rebutted by proof of other circumstances, showing that the ordinary place of residence of the minor is other than the place of residence of his natural guardian.***
4. ***A close analysis of some of these decisions shows that the question as to the place of ordinary residence of the minor has always been regarded as a question of fact and the Courts have determined it in the light of the circumstances proved in each case.”
34. While dismissing the application of the father, it was held in Harihar Pershad Jaiswal (supra) as follows:
“6. ***If the expression ‘place of ordinary residence’ means the residence of his natural guardian, the very purpose of using the word, ‘the residence of the minor’ in section 9 would be lost. It is not the place of residence of the natural guardian that gives the jurisdiction to the Court under section 9(1) but it is the place of ordinary residence of the minor and the Legislature has designedly used the words, ‘where the minor ordinarily resides’. Hence actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides.***”
35. In Amal Saha (supra), the principles that the Court facing an objection regarding jurisdiction ought to bear in mind were laid down in the following words:
“8. The language of sub-section (1) of section 9 of the Act is clear and there is no ambiguity. In order to give the Trial Court jurisdiction under the Act, the minor must be ordinarily resident within the local limits of the jurisdiction of the Court in view of the provisions contained in the above sub-section. In other words the condition precedent for the purpose of exercising jurisdiction by the Court is circumscribed by the condition that the minor must be ordinarily resident within the jurisdiction of the concerned Court and this is a question of fact. But in deciding this question the Court has to bear in mind the following principles namely (1) it has to be decided on the basis of facts available on records, (2) as the expression ‘ordinarily resident’ has a different meaning than “residence at the time of application” the Court has to ignore recent removal if any, from a place where the minor ordinarily resides; if this fact of recent removal is taken into consideration, the provisions of the Act will be rendered nugatory; (3) there is no presumption that the minor is deemed to reside at the place where his natural guardian resides as the place of residence of natural guardian is not the determining factor in deciding the question of jurisdiction of the Court. However, in deciding the place where minor ordinarily resides, the Court comes to a finding that the minor was residing with any one of his parents, the question of constructive custody may arise depending on the circumstances of the case and (4) if the minor has no permanent abode, he must be deemed to reside where he actually resides.”
36. The learned Judge in Konduparthi Venkateswarlu (supra) was considering a case where the spouses were residing with their child at Berhampur in the district of Ganjam but the mother along with the child had been taken to Visakhapatnam for the treatment of the former, where she ultimately breathed her last. While ruling that Visakhapatnam could not be considered as the place where the minor ordinarily resides and that the District Court of Ganjam had the jurisdiction to consider the application filed by the father under the Act, it was held as follows:
“5. ***The place where the minor ordinarily resides so as to confer jurisdiction on the concerned District Judge has to be interpreted in each case depending upon the facts and circumstances of that case. Residence of a minor is a matter of fact. By use of the expression ‘ordinarily resides’ the Legislature obviously meant that it is more than a temporary residence even though such period may be considerable. 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 the 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.***”
37. In the aforesaid decision one finds reference to a Bench decision of the Patna High Court reported in AIR 1954 Patna 489, Bhola Nath…Opposite Party v. Sharda Devi…Applicant-.. The view expressed in AIR 1951 Nagpur 179, Vimalabai v. Baburao Shamrao was dissented from where it was ruled that in terms of Hindu Law the father being the natural guardian of his child, his children must be deemed to reside where he resides. In paragraph 6, the Bench observed:
“6. From a review of the cases mentioned above, it appears that the question as to the ordinary residence of the minor must be decided on the facts of each particular case and that, generally, the length of residence at a particular place determines the question. The expression ‘the place where the minor ordinarily resides’, in my opinion, means the place where the minor generally resides and would be expected to reside but for a special circumstance.
In the present case, according to the case of the mother, which has been accepted by the Court below from which I see no reason to differ, the child, during the short period of his life, lived mostly at Buxar within the jurisdiction of the District Court of Shahabad; and, if the child had not been stealthily taken away by the father, he was expected to reside with the mother at Buxar. In this view of the matter, the contention of the appellant in regard to the want of jurisdiction of the District Court of Shahabad must be repelled, and I hold that the District Judge of Shahabad had complete jurisdiction in the matter.”
38. The Bench in Jagdish Chandra Gupta (supra) in paragraphs 19 and 20 of its decision reiterated the law in the following words:
“19. It has been urged that the expression ‘ordinarily resides’ as used in section 9(1) of the Act signifies dwelling in a place for some continuous time. ‘Ordinarily resides’ therefore, has to be some thing more than a temporary residence. Even though the period of such temporary residence may be considerable, the place where the minor generally resides and would be expected to reside but for special circumstances may be taken to be the place denoting a place where the minor ordinarily resides. The other aspect which cannot be ignored is that when a person leaves a place where he had been residing as permanent resident for good i.e, with no intention to come back and goes to some other place to live there, the former place where he used to live, ceases to be his ordinary place of residence and the later place becomes his ordinary place of residence. The question of residence is largely a question of intention. However, in cases of the minor no question of intention can arise but the Court will have to take into consideration all the relevant facts as brought on record to determine the actual place of residence looking the attendant circumstances. The past abode for however a long period it may be, can cease to be a place where the minor can be said to be ordinarily residing depending upon the facts and circumstances of each case and the nature and duration of the residence. The mere fact that a minor is found actually residing at a place at the time of the application is made by itself is not sufficient to determine the jurisdiction.
20. The expression ordinarily resides and residing at the time of the application are not synonymous and stipulate different situations which are not inter-changeable. The place where the minor ordinarily resides indicates a place where the minor is expected to reside but for the special circumstances. It excludes places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. The place has to be determined by finding out as to whether the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to different place.”
39. In Parshant Chanana (supra), the question that arose in revisional jurisdiction of the High Court for an answer was whether the Guardian Judge, Chandigarh was competent to receive an application under the Act for custody of the child and to pass interim order granting visitation rights to the respondent mother, particularly when the child was residing at Lucknow. Dismissing the revision, it was ruled that the words “ordinarily resides” in section 9 would mean “a regular, normal, a settled home or a regular place of abode …… distinguishable from a temporary or a forced stay”, and that “(i) f 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 ‘ordinarily resides’.”
40. I ought also, at this stage, to refer to a Bench decision of this Court reported in 1975 (2) CLJ 108, Badal Dhar Choudhury v. Sisir Kana Dhar Choudhury. Question that arose there was whether the minor daughter of the parties could be said to have ordinarily resided in South Calcutta so as to confer jurisdiction on the District Court of 24 Parganas at Alipore to entertain an application filed by the mother under the Act for being appointed as guardian. On consideration of a sizeable number of English and Indian decisions, including some referred to hereinabove, Hon'ble Sisir Kumar Mukherjea, J. speaking for the Bench by an erudite judgment overruled the objection of the husband and discharged the Rule obtained by him. The Bench observed that the decision in Vimalabai (supra) is not supported by principles or precedents and was not followed by any other High Court. It was further observed that some of the Indian decisions on the meaning of the words ‘ordinarily residing at’ in section 9(1) of the Act appear to have proceeded on the view that there is a competition between different places of residence where there are more than one but that there is no such necessary competition; all that the Court has to determine is whether the minor ordinarily resides within its jurisdiction at the material time, irrespective of the fact whether he also ordinarily resides elsewhere. The Bench was also of the view that a person, it ought to be borne in mind, may have more than one ordinary place of residence. Finally, it was opined in paragraphs 25 and 26 as follows :
“25. On a proper construction of section 9(1) of the Guardians and Wards Act it is clear that the words ‘where the minor ordinarily resides’ do not mean neither more nor less than they say. In the contemplation of the relevant sub-section the place of ordinary residence of the minor is a pure question of fact. Notions of constructive or legal residence do not enter into the picture. There is no presumption that the residence of the guardian is the residence of the minor although usually that happens to be the case. On a consideration of the statute and decided cases, it is clear that in construing the words ‘ordinarily residing at’ is not legitimate to invoke any presumption or the aid of any legal fiction.
26. The determination of the ordinary residence of the minor depends on a variety of considerations. The ordinary place of residence may not be the same as the actual place of residence but that does not mean that the actual place of residence on the date of the application need not be taken into consideration. The duration, the character, the purpose of the residence, the circumstances in which the minor resides at a particular place, animus revertendi if any, have all to be thought of. The determination has to be made in the peculiar facts of each case having due regard to the entire conspectus.”
41. On a conspectus of the aforesaid authorities, the unquestionable principles that emerge are that it is the ordinary place of residence of the minor that determines jurisdiction of the particular Court and further that the question as to where the minor ordinarily resides, thereby conferring jurisdiction on the District Court to entertain an application with respect to his guardianship, is in substance a question of fact, which ought to be decided in the light of the circumstances proved in each particular case. There also appears to be consensus of judicial opinion that the place of residence of the natural guardian ipso facto is not the determining factor for deciding the question of jurisdiction of the Court. However, the High Courts do not appear to be ad idem as to whether actual residence of the child at the time the application has been made is to be considered as the place where he ‘ordinarily resides’.
42. Master Soham from birth had been residing at Salt Lake, within the jurisdiction of the District Judge, North 24-Parganas. On May 9, 2008 i.e the date when the opposite party left her matrimonial home together with Master Soham, he was less than 5 years old. It is an admitted fact that since then, Master Soham has been residing at 4/5/2, Bank Colony, Dhakuria, Police Station - Jadavpur, Kolkata at the house of the parents of the opposite party and that the same is within the jurisdiction of the District Court of South 24 Parganas. On facts of the present case, it has to be decided as to who between the District Judges, 24 Parganas (North) and (South) has the jurisdiction to try an application for guardianship of Master Soham under the Act.
43. The legislature in its wisdom having used the words “where the minor ordinarily resides” and not where he actually or presently resides on the date of the application, Mr. Banerjee is right in his contention that the residence of the minor immediately prior to the application under the Act being filed by itself cannot be the determining factor. However, one cannot lose sight of the fact that the place of residence where the spouses lived together as husband and wife with the minor cannot also be the determining factor in deciding the jurisdiction of the Court but could be considered as one of the circumstances in determining the ordinary place of residence of the minor by drawing a presumption. If indeed the residence of the natural guardian would have to be construed as the determining factor, section 9(1) would have been worded differently to authorize the District Court having jurisdiction in the place where the natural guardian ordinarily resides to receive the application in respect of guardianship. Also, whether or not a minor child has been stealthily or forcefully removed from the residence where he had been residing from birth must be established free from all doubts before an objection that the District Court trying the application filed under the Act, in terms of provisions contained in section 9 thereof, has no jurisdiction could be sustained. In such circumstances, in my view, the rough and ready workable test that is required to be applied is, whether shifting of the child from his father's residence to somewhere else where his mother takes him is occasioned in the normal run of events or by design to create jurisdiction in any particular District Court of her choice or not. Applying this test to the facts at hand, it appears that the minor child has been residing at Dhakuria, at his maternal grandfather's place as the normal outcome of marital discord between the parties. There is no material, at least at this stage, to return a finding that Master Soham was stealthily removed. Also, considering the circumstance that a wife leaving her matrimonial home on account of marital discord and taking shelter in her father's house with her child is not a rare feature of present day society, there can be no two opinions that factum of Master Soham residing at his maternal grandfather's residence with his mother is not one which could be construed as a result of compulsion so as to negate the jurisdiction of the District Court of South 24-Parganas to entertain the application for guardianship filed by the opposite party.
44. There is one other aspect that has weighed in my mind while deciding the contentious issue raised herein.
45. The petitioner had approached the learned District Judge, North 24 Parganas by filing an application under section 25 read with section 12 of the Act. As noticed above, the opposite party by a petition dated August 1, 2009 had challenged the jurisdiction of the learned District Judge, North 24 Parganas to entertain the application of the petitioner. By the order dated September 11, 2009 the learned District Judge declined to entertain the application filed by the petitioner and directed return thereof for presentation before the Court of the learned District Judge, South 24 Parganas. It was ruled in such order that the District Judge, South 24 Parganas was having territorial jurisdiction over the issue in view of section 25. The order was challenged by the petitioner by filing a revisional application, subsequently converted to a first miscellaneous appeal. On consent of parties, the appeal stood disposed of by order of the Division Bench dated April 6, 2010. The order of the learned District Judge, North 24 Parganas not having been set aside in an appeal, the finding recorded therein that the Court of the learned District Judge, South 24 Parganas has the jurisdiction to consider the application for guardianship of Master Soham having regard to his residence at Dhakuria, Police Station - Jadavpur stares at the face of the petitioner. The petitioner having abandoned his claim by agreeing to the terms of having custody recorded in the order dated April 6, 2010 cannot now turn around and question the jurisdiction of the Court the learned District Judge, South 24 Parganas to entertain the application filed by the opposite party.
46. For the reasons aforesaid, I find no merit in the present application. The same stands dismissed, without costs.
47. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
Sra.C
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