Nishi Rana Versus Vineet Rana
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: 31.7.2008
Date of Order: September 10, 2008
CM(M) No. 1517/2007
Nishi Rana ... Petitioner
Through: Mr. Parvinder Chauhan, Advocate
Versus
Vineet Rana ... Respondent
Through: Mr. K.C.Mittal, Mr. Sumit Babbar and
Mr. Sujeet Kumar Singh, Advocates
JUSTICE SHIV NARAYAN DHINGRA
JUDGMENT
The petitioner is aggrieved by an order dated 9.10.2007 of learned
Guardianship Judge whereby he disposed of the preliminary issue regarding
his jurisdiction and held that the Court had jurisdiction to entertain the
petition filed by the husband.
2. A perusal of order passed by the learned Guardianship Judge shows that
the Guardianship Judge had not gone through the facts stated in the petition
of the husband properly and taken note of wrong facts. In para 10.1 of the
petition, the husband had stated that the petitioner was married with the
respondent on 12.12.1996 at Sonepat, whereas the Guardianship Judge noted
in his order that the marriage was solemnized in Delhi on 12.12.2996. In
para 18 of the petition the husband had stated that he left Delhi on 1.2.2006
and went to settle at Dehradun. The response filed by the wife shows that at
that time husband and wife along with children were living at Delhi and
husband left his entire family in Delhi and shifted to Dehradun. In Dehradun
parents of the husband were living. The wife and children later on joined
him at Dehradun. It is admitted by the petitioner that he took a house on rent
in Dehradun and started living with his wife and children in the rented
accommodation at Dehradun on 10.7.2006. Children were admitted in
school at Dehradun (para 20 of the petition). In para 22 of the petition, it was
stated that he was compelled to leave the rented house in Dehradun on
25.7.2006 and he left Dehradun and came to Delhi and started living in
Delhi, his wife and children at that time were in Dehradun.
3. From Dehradun his wife and children came to Sonepat where her parents
were living and thereafter she started residing at Sonepat along with
children. She filed a criminal complaint against the husband at Sonepat. She
filed an application under Section 125 Cr.P.C. at Sonepat. An FIR was also
registered at Sonepat. Although these facts are undisputed but the learned
Guardianship Judge did not take note of any of these facts and in his order
he recorded that both the parties lastly lived together at their house at Sector
9, Rohini, Delhi. Obviously, the learned Guardianship Judge did not care to
read the petition of the husband carefully before passing the order.
Thereafter, he went on to decide the jurisdiction and observed that the
“ordinary place of residence” of the two children viz. Master Dhruv Rana
and Baby Dhirty Rana had to be considered as Delhi. Both the children had
crossed the age of 5 years and as such by virtue of Section 6(a) of Hindu
Minority and Guardianship Act, they were out of the purview of the
provision that they should be ordinarily living with the mother. Father was
the natural guardian and the children were constrained to live at Sonepat
with their mother since she had taken them with her. Otherwise, ordinarily
they were supposed to be residing with their father which was the
matrimonial house of the respondent and by observing thus, he dismissed the
application and decided the issue of jurisdiction in favour of Delhi Court.
4. It is apparent that the learned Guardianship Judge not only culled out the
facts wrongly but also had not taken care to apply the law properly. In Ramji
Lal Yadav v. Dalip K. Yadav, 76(1998) DLT 526 this Court had observed
that the phrase “where the ward for the time being ordinarily resides” has to
be interpreted in term of the residence of a minor whose custody is sought.
The emphasis has to be on the minor”s ordinary place of residence and it
excludes the places to which the minor may be removed at about the time of
filing of application for enforcement of guardianship and custody of minor.
The phrase only means the factual residence and not deemed residence of
the minor. The residence of natural guardian or legal guardian is not the
consideration of the phrase “where the ward for the time being ordinarily
resides”. For deciding residence of the minor in such cases, the factum of
residence in the sense of length and circumstances; and intention of residing
permanently or for indefinite period at the place other than that of residence
of natural guardian or of the parties would become important. Since, no
animus can be attributed to the children as they are depending upon the
guardian with whom they live, the conduct and the residence of the parties
would become important.
5. The place of ordinary residence for the purpose of invoking jurisdiction of
a guardian”s court has to be the place of residence of the minor. The minors
may be living either with mother or with father or they may even be living
with their grandparents. Where the minors are living, going to schools and
taken care of, that is the place of ordinary residence of minors and that is the
Court which has jurisdiction over grant of guardianship of the minors.
Unless the circumstances show that minors though ordinarily residing within
the jurisdiction of the Court, but were deliberately removed a short while
ago from the place in order to defeat the jurisdiction, the expression “place
of ordinary residence” would mean place where minor lives and does not
mean the residence of natural guardian or the legal guardian. It is not, the
place of residence of natural guardian or the legal guardian that gives
jurisdiction to the Court under Section 9(1) of the Act. The legislature has
designedly used the words “where the minor ordinarily resides” and it is
only the place of residence of minor which gives jurisdiction to the Court. In
the present case, the minors were living admittedly at Sonepat since July-
August 2006. They were lastly living at Dehradun along with their parents,
when father left Dehradun and started living at Delhi, the wife had no choice
but to move to her parents” house at Sonepat along with the children and
since then the minors were living at Sonepat.
6. When the petition was filed, the minors had already been living at Sonepat
for a period of one year thus, only the Court at Sonepat would be the place
of ordinary residence and not Delhi. The Court at Delhi would have no
jurisdiction. The petition is allowed. The preliminary issue is decided in
favour of the petitioner and against the respondent. The Guardianship Judge
is liable to return the petition to be presented before the Court of appropriate
jurisdiction.
Sd/-
SHIV NARAYAN DHINGRA, J.
