@JUDGMENTTAG-ORDER
Ashok Bhushan, J.@mdashHeard Shri Y.K. Sinha, learned counsel for the petitioner and Shri Madhav Jain for respondent No. 1.
2. This writ petition has been filed by the petitioner challenging two orders dated 31-5-2004 passed by Judge Family Court, Agra in Misc. Case No. 15 of 2004, Smt. Jyoti Parashar v. Navin Singh.
3. By first order dated 31-5-2004 the Judge Family Court has rejected the application of the petitioner filed under Order VII, Rule 11 Code of Civil Procedure. By second order of the same date application filed by respondent No. 1 u/s 12 of Guardians And Wards Act, 1890 was allowed by which respondent No. 1 prayed for interim custody of minor Nick Singh. Both the orders have been passed on application filed by respondent No. 1 hereinafter referred to as respondent u/s 25 of Guardians And Wards Act, 1890 praying for direction to the petitioner the husband to hand over custody of Master Nick Singh hereinafter referred to as child.
4. Brief facts of the case are; the respondent was student of St. Joseph Girls Inter College, Agra in the year 1997. The respondent without informing her family members went to Mumbai with the petitioner and as per programme already fixed by the petitioner was married to the petitioner on 7-10-1997 in Araya Samaj Mandir. A son namely master Nick was borne on 14-10-1998. The case of the respondent as stated in the application u/s 25 is that after sometime she came to know that petitioner and his family members belong to Bedia community and the family members are involved in flesh trade which is the main source of income of the family. The respondent''s case further is that she was also being forced by the petitioner to enter into the flesh trade and on her refusal she was beaten. The respondent started making effort to get herself freed from the clutches of the petitioner and she informed her parents. The parents of respondent came in August 2003 and she came along with her parents to her father''s house and is living there since August 2003. It was further pleaded that petitioner does not do any work. On 3-11-2003 the petitioner along with her two sisters, mother and father came to Agra and forcibly took away the child. Respondent lodged an FIR and a criminal case has also been registered against the petitioner and his other family members. It has further been stated in the application that there is no atmosphere of education in the family of the petitioner and if the child continues to live with the petitioner he will not become a good person. The respondent stated that she has passed intermediate and she earns Rs. 3000/- and is fully capable of taking care of all the needs of the child. The respondent when in spite of information to the police and making efforts has not returned back the custody of child then she filed the application u/s 25 of Guardians and Wards Act on which Misc. Case of 15 of 2004 has been registered. Notices were issued to the petitioner who appeared and filed his written statement. The petitioner stated in the written statement that the marriage was performed at the instance of the petitioner and both Have been happily living at Bombay. He further stated that petitioner along with the respondent has been residing in a separate residence at Meera Road away from his family members and there is no interference of any kind from the family members of the petitioner. The allegation that the petitioner ever wanted to pressurise the respondent to indulge in prostitution has been denied. It was stated that petitioner was earlier running a general store and is running a shop for sale and hire of VCD and compact disks of music etc. It was further stated that respondent came to Agra in October 2003 on the pretext that she would return after Diwali. It was stated that the application is not maintainable since the child is more than 5 years of age on the date of filing of the application and it is the father who is natural guardian of the child. It was further stated that child is residing at Mumbai and was brought to Agra by his mother along with parents of respondent in October 2003. Child can never be said to be living at Agra and the Court at Agra had no jurisdiction to entertain the application. An application u/s 12 of the Guardians And Wards Act, 1890 was filed by the respondent praying that custody of child be given to the respondent as an interim measure. The application was objected by the petitioner. An application under Order VII, Rule 11 of CPC was filed by the petitioner praying that Court may first decide the question of territorial jurisdiction and dismiss the suit. It was stated in the application that petitioner is natural guardian of the child who is ordinarily residing at Maharashtra. The application under Order VII, Rule 11 of CPC was objected by the respondent.
5. The family Court vide its order dated 31-5-2004 rejected the application of the petitioner filed under Order VII, Rule 11 of Code of Civil Procedure. The family Court took the view that the Court had jurisdiction to decide the question of custody and jurisdiction from where the child was forcibly taken. The Court held that the child was living at Agra along with his mother when he was taken away by the father, hence, the prima facie the Court has jurisdiction to hear the matter. The family Court further held that the question of jurisdiction involves legal and factual disputes on which final conclusion, can be taken only after receiving the evidence. The application was rejected at this stage. By another order dated 31-5-2004, the family Court allowed the application of the respondent of temporary custody of the child. Direction was issued to the petitioner to hand over the custody of child to the respondent. The family Court recorded the finding that the respondent has earning of Rs. 3000/- per month apart from rental income of 5000/- whereas no evidence has been given by the petitioner regarding his income. The Court further held that the respondent has passed intermediate with good marks from St. Joseph Girls Inter College whereas petitioner has failed in High School. In the above circumstances, the Court held that giving custody of child to mother is in the interest of the child. On these findings, the application was allowed. Both these two orders have been challenged in this writ petition.
6. Shri Y.K. Sinha, counsel for the petitioner challenging the impugned orders has made following submissions :
(i) The application filed by respondent was not maintainable u/s 25 of the Guardians and Wards Act, 1890. The contention is that father being natural guardian, the application filed by the respondent is not maintainable. Application u/s 25 cannot be filed against the father who is the natural guardian.
(ii) That u/s 6(a) of Hindu Minority and Guardianship Act 1956 father is natural guardian, child being more than 5 years of age Court cannot pass any order directing for giving custody to the mother who is not natural guardian of a child of more than 5 years of age.
(iii) The child ordinarily residence at Maharashtra, hence the Family Court Agra had no jurisdiction to entertain the application u/s 25 of the Guardians and Wards Act 1890.
(iv) The findings recorded by Family Court for giving custody of child to the mother are perverse.
7. Learned counsel for the petitioner in support of his submissions placed reliance on
8. Shri Madhav Jain, learned counsel appearing for the respondent refuting the submissions made by counsel for the petitioner contended that application u/s 25 was fully maintainable. He contended that mother is guardian and the child having been removed from the custody of mother, application u/s 25 was fully maintainable for return of the custody to the mother. Shri Jain further contended that at the time child was removed from the custody of mother, she was ordinarily residing at Agra and the Court at Agra had jurisdiction to entertain the application. Shri Jain submitted that for giving custody the paramount consideration is the welfare of child and the Court having recorded finding that welfare of child is with the mother, no error can be said to have been committed by the family Court. It was further contended that the order directing for giving the custody is only an interlocutory order which is subject to modification and change. The writ petition be not entertained at this stage. The counsel for the respondent has also placed reliance on various decisions of the Apex Court, this Court and other High Courts which shall be referred to while considering the respective submissions.
9. I have considered the submissions of the counsel for the parties and perused the record.
10. The first submission of the counsel for the petitioner is regarding non-maintainability of the application of the respondent u/s 25 of the Guardians and Wards Act 1890. The contention is that father being the natural guardian u/s 6(a) of Hindu Minority and Guardianship Act 1956, the mother cannot be treated to be a guardian and application u/s 25 is maintainable only when child is removed from the custody of a guardian.
11. The Guardians and Wards Act, 1890 defines guardian in Section 4(2). Section 4(2) is quoted below :
"4(2) "guardian" means a person having the care of the person of a minor or of his property, or of both his person and property;"
12. Section 25 of the Act contains a heading (title of guardians to custody of wards).
13. A guardian can make an application u/s 25 for custody of wards. If a ward leaves or removed from the custody of a guardian. The section further provides that the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of a guardian may make an order for his restoration. Section 25 of the Act is quoted as below :
"25. Title of guardian to custody of ward.-- (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 a guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
14. The submission is that wife not being natural guardian of the child, no question of removal from her custody arises.
15. The submission of the counsel for the petitioner can only be accepted if in place of word ''guardian'' word ''natural guardian'' is read. Guardian has been defined in Section 4(2) which means a person having the care of the person of a minor or of his property, or of both his person and property. Admittedly, child was in the custody and the care of the mother from whose custody the child was taken to Maharashtra. The word guardian used in Section 25 is wide and includes all kinds of guardians and the restricted meaning of the word cannot be read as contended by counsel for the petitioner. Definition of guardians u/s 4(b) of the Hindu Minority and Guardianships Act, 1956 also makes it clear that word guardian includes all types of guardian and is an inclusive definition.
16. The submission of the petitioner can be tested by giving an illustration; supposing a minor more than 5 years of age who is in custody of his mother is removed by any person from her custody, the wife not being natural guardian as contended by the counsel for the petitioner can not take aid of Section 25. Obviously the application will be fully maintainable at the instance of wife in above case. Thus, the submission of the petitioner that word guardian used in Section 25 should be read as ''natural guardian'' cannot be accepted. In the present case, the respondent was fully entitled to maintain the application u/s 25.
17. The second submission of the counsel for the petitioner is that father being natural guardian u/s 6(a), the custody cannot be given to the mother. Section 6(a) of the Hindu Minority and Guardianship Act, 1956 defines natural guardians. Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is quoted as below:
"6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor in respect of the minor''s person as well as in respect of the minor''s property (excluding his or her undivided interest in joint family property), are --
(a) in the case of a boy or an unmarried girl -- the father, and after him, the mother; Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;"
18. The dispute regarding custody in the present case between petitioner who is father and the respondent who is mother of the child started at the time when mother came to Agra along with the child i.e. in August, 2003. As stated in paragraph 12 of the application the child was less than 5 years of age at that time and on 3-11-2003 when the child is said to have been removed from the custody of the mother whether the mother had no claim, for the custody. Even if father is natural guardian within the meaning of Section 6(a) while deciding the question of custody, the welfare of the child is to be looked into and it cannot be a rigid rule that in every case the father who is natural guardian is entitled for custody. While considering Section 6 of the Hindu Minority and Guardianships Act, 1956 the Apex Court in
"9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother."
19. Apex Court in
"We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word "after" need not necessarily mean "after the lifetime". In the context in which it appears in Section 6(a) (supra), it means "in the absence of, the word "absence" therein referring to the father''s absence from the care of the minor''s property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor or even if he is living with the mother or if by virtue of mutual understanding between the father and mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of HMG Act, without causing any violence to the language of Section 6(a) (supra)."
20. Moreover, in the present case, the application was u/s 25 of Guardians and Wards Act which specifically provides that if a ward is removed from the custody of guardian, if the court is of opinion that it will be the welfare of the ward to return to the custody of guardian it will make an order for his restoration. Thus, while deciding claim u/s 25, the welfare of the child has to be looked into and the claim of custody of wife cannot be ignored or denied only on the ground that husband is natural guardian u/s 6(a) of the Act.
21. The second submission of the counsel for the petitioner thus also cannot be accepted.
22. The third submission of the counsel for the petitioner is lack of jurisdiction of Family Court, Agra to entertain the application. Submission is that the child was ordinary resident of Maharashtra, the application could have been maintainable only in the State of Maharashtra and the Court at Agra has no jurisdiction. Section 9 of the Guardians and Wards Act, 1890 deals with the Court having jurisdiction to entertain application. Section 9 of Guardians and Wards Act, 1890 is quoted as below :
"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 re turn the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."
23. Section 9(1) states that the application shall be made to the District Court having jurisdiction in the place where the mi nor ordinarily resides. The word ordinarily resides" has come for consideration in large number of cases. Before proceeding any further to consider the submission, it is relevant to note that the Family Court has not expressed any final conclusion regarding the issue of jurisdiction. Family Court while deciding the application filed by the petitioner raising the question of jurisdiction observed that the question of jurisdiction involves question of law and question of fact which can be determined only when the evidence is received. The Family Court has only given a prima facie opinion regarding jurisdiction taking the view that Court at Agra had jurisdiction to entertain the petition. The consideration of submission in this case of counsel for both the parties has to be in the above background. Thus, any observations in this judgment shall not be treated as final.
24. The facts of the case as contained in the application filed by the respondent and the affidavit as well as the rejoinder affidavit makes it clear that respondent wanted to get herself freed as she felt her life and dignity in danger while living with her husband and their family members. In paragraphs 12 to 14 of the application relevant averments have been made. The averment makes it clear that she along with her parents got an opportunity to leave the husband''s place and since then she is living at Agra. The averments make it clear that respondent was disgusted with the atmosphere at husband''s house and came to Agra to live with her parents. At the time when child came with the respondent, child was less than 5 years and child was living with mother when he was taken away forcibly on 3-11-2003 by the husband. The word "ordinarily resides" came for consideration by this Court in
"(4) The next question that arises is, where were these minors ordinarily residing? It is admitted that three of the children are very young and they are living with their mother at Roorkee. One of them, the eldest, is with Bhanumal at Gonda. During the life time of their father, the minors were living at Gonda, but soon after the death of their father their mother Smt. Kamla left Gonda practically, as it appears, for good.
She had first gone to Tehri and is at present residing at Roorkee for the education of her children. It cannot be said now, when the mother Smt. Kamla has settled at Roorkee, and the three children after the death of their father have never resided at Gonda, that they are "ordinarily residing" at Gonda. The word "reside" has nowhere been defined and the dictionary meaning is "dwelling permanently, or for a considerable time; to have one settled or usual abode; to live in or at a particular place."
To my mind, for all practical purposes now Smt. Kamla is dwelling permanently at Roorkee with her minor children and in any event, she has stayed there for a considerable time, and she wants to make that place a settled and usual abode. The Allahabad case (B), cited above was a very similar case to the present one and in that case the young children had been living with their mother who had left the place of her husband from Moradabad District and had gone to Aligarh district, and it was held by Hon''ble Sapru, J. that --
"In this particular case an inevitable conclusion to which, I am driven is that their ordinary place of residence is at the moment at Hathras. When a person leaves the place where he has 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 latter place, becomes his ordinary place of residence."
25. The question of residence is largely a question of intention. In the case of minors no question of intention arises. But the Court will take into consideration their actual place of residence at time of the application and regard that as their ordinary place of residence."
26
27. Coming to the decisions cited by counsel for the petitioner i.e.
28. The above case does not help the petitioner in the present facts situation. Another case relied by counsel for the petitioner is Amima Gupta''s cast; 2003 ALJ 719 (supra), in the aforesaid case at the time of application filed by father it was found that child was ordinarily residing at Gauhati with brother of his mother hence, the Court held that District Judge, Gauhati had jurisdiction. The present is a case where wife claims to have shifted from Maharashtra to Agra to live at Agra along with the child.
29. In each case, the question has to be decided from facts situation of each case and no hard and fast Rule can be laid down for determining the jurisdiction. The Family Court has only expressed its prima facie view regarding jurisdiction which is subject decision in the suit. I do not find any error in the order of Family Court rejecting the application of the petitioner at this stage raising the question of jurisdiction.
30. The last submission of the counsel for the petitioner is that findings recorded by Family Court is perverse. The order of Family Court directing for giving temporary custody of child to the mother is only an interlocutory order passed in exercise of jurisdiction u/s 12. The Court has considered all relevant facts for coming to the conclusion that it is in the interest of the child that custody be given to the mother. This is admitted fact that wife is more educated than husband. The wife has categorically stated in her application that she is earning Rs. 3000/- per month. The Family Court has also taken into consideration the materials on the record that respondent is also getting rental income of Rs. 5000/-. The respondent has stated in her application that her income is 3000/- per month and petitioner does not do any work and entire family survives from the income of sister of petitioner. The reply of paragraph 13 of the application was given by petitioner in paragraph 13 of written statement. In paragraph 13 of the written statement petitioner has only stated that he earlier used to run a general store and is also running a shop for sale and hire of VCD and compact disks of music. No where in the written statement petitioner has stated about his income. Neither any figure nor any material has been given regarding his income. The counsel for the petitioner has stated that petitioner has passed High School and he has been bearing expenses of fee of the child while he was studying which is sufficient to show that he had income. The fact that school fee of the child was paid does not prove that petitioner has sufficient income. The Family Court have taken into consideration all relevant facts and rightly come to the conclusion that it is in the interest of child that mother be given the custody of the child. The order passed by Family Court directing giving of temporary custody needs no interference by this Court in exercise of its extraordinary jurisdiction. The Apex Court in
"7. The orders relating to custody of children are by the very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the permanent interest of the child."
In view of the aforesaid discussion no grounds have been made out to exercise discretionary jurisdiction of this Court under Article 226 in favour of the petitioner.
31. The writ petition lacks merit and is summarily rejected.
