HARICHAND RATANCHAND Vs. VIRBALA

JUDGEMENT

(1.) The appellant-plaintiff father of the minor children who had filed the application under sec. 25 of the Guardian and Wards Act) 1890 hereinafter referred to as the Act has filed this appeal as the learned Single Judge had set aside the trial Courts order on the ground that it had no jurisdiction and he had further held that the provisions of sec. 21 of the Code could not be invoked in such cases. The appellant respondent No. I were married on February 18 1961 and were residing at Palanpur. There were three children of this marriage. The first son was born on July 22 1963 the daughter was born on February 28 1966 and the second son was born on May 15 1968 It is the case of the appellant that respondent No. 1 wife ran away from the family house at Palanpur on October 31 1967 to her fathers house in village Vaghel in the jurisdiction of the Mehsana District Court. The appellant therefore applied for restoration of custody of these three minors who were removed by respondent No. 1 wife to village Vaghel against the will of the appellant. This application was filed on January 6 1970 before the District Court at Palanpur and in the same application the appellants father-in law and mother-in-law were joined as respondents Nos. 2 and 3 on the ground that they were instigating and not allowing the appellant to see these children. The trial Court by the order dated September 3 1971 held that it had jurisdiction as the minor children must be taken to be residing with the father who had the legal custody. He therefore ordered that the eldest son Ashok should be delivered to the custody of the father while the other two children were allowed to be retained by the mother on the ground that consideration of welfare of the minors required that course to be adopted. The appeal of the wife against that order having been allowed on the point of jurisdiction as aforesaid the appellant-applicant has filed this Letters Patent Appeal.

(2.) The relevant sec. 25(1) provides as under :

(3.) Sec. 25(1) however has categorically used the expression the Court which has been statutorily defined in sec. 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under sec. 9(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. Therefore the legislature has statutorily defined the court for the purposes of sec. 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore the legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody. If the application is made immediately after the removal from the fathers custody the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly if there are two places where it could be held that the minor was ordinarily residing the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumptive legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances.