NARAYANA BALA BHARATHI Vs. VISHAL GAGAN

JUDGEMENT

(1.) The present appeal is directed against an order of the Family Court of 15.01.2013, rejecting the appellant/wife's application for return of the proceedings on the ground that the Court lacked territorial jurisdiction. The appellant wife had applied under Order VII Rule 11 CPC, contending that the minor son whose guardianship was sought in the substantive proceedings pending before the Family Court did not ordinarily reside in Delhi within the territorial limits of the jurisdiction of the Court but in Bangalore.

(2.) The parties to the guardianship proceedings, filed by the husband (respondent in this case), were married on 29.01.2001. Apparently they had, on account of differences, parted company in 2007. Their only child a son - continued to stay with the wife the appellant. The facts on record establish that the son was admitted to the Sanskriti School in New Delhi in 2009. He continued to stay there till the child was taken to Bangalore on 20.03.2012. The facts on record also disclose that the husband filed guardianship proceedings, claiming custody under Section 9 of the Guardians and Wards Act, 1890 on 05.03.2012. Taking into consideration all these circumstances, the Trial Court rejected the appellant's contentions that it lacked territorial jurisdiction.

(3.) It is urged by the counsel that the Trial Court fell into error in not noticing that the child did not ordinarily reside in Delhi and that his stay upto March 2012 was on account of "compelling circumstances". Learned counsel submitted in this regard that the wife had been transferred to Bangalore on 20.10.2011; a copy of the transfer order issued by the Ministry of Home Affairs, Government of India was relied upon, for this purpose. It is submitted that in these circumstances, the child's sojourn beyond October 2011 was only to facilitate his completion of that academic year and his being taken to Bangalore meant that he is ordinarily a resident of Bangalore and not Delhi. Learned counsel relied upon the decision of the Supreme Court reported as Ruchi Majoo v. Sanjeev Majoo, 2011 6 SCC 479.