R GEETHA Vs. A T RANJAN

JUDGEMENT

(1.) THE Civil Revision Petition is directed against the order of the learned district judge, Ramanathapuram at Madurai, in I.A. No. 36 of 1989 in O.P. No. 5 of 1987, holding that that court has jurisdiction to entertain O.P. No. 5 of 1987 filed by the respondent herein under S. 25(1) of the Guardians and Wards Act, VIII of 1890 (herein-after referred to as ?the Act?). THE petitioner and the respondent herein were married on 3-9-1981 and a son was born to them on 6-6-1982. Misunderstandings having arisen be tween the petitioner and the respondent, they are now living apart. THE petitioner is residing at Karumpalai, No. 581, K.K. Nagar, Madurai while the respondent is living at No. 19, L.P. Shanmugam Street, Virudhunagar, Having regard to the very limited scope of the controversy between the parties in this Civil Revision Petition, viz, the jurisdiction of the District Court, Ramanathapuram at Madurai, to entertain the petition in O.P. No. 5 of 1987, it is not necessary at this stage to refer in extenso to the grounds upon which the respondent had sought to curtody of the minor son Arun and the opposition to the same bv the petitioner. It would suffice, therefore, to refer to the stand of the parties in so far as the question of jurisdiction is concerned. In O.P. No. 5 of 1987 filed by the respondent herein, be had stated in paragraph 8 that in the month of Avani, 1986, the minor son had a short stay with the family of the respondent. Again, in paragraph 12 of the petition, the respondent had averred that the petitioner was forcibly brought by the Uravinmurai from Madurai to Virudhunagar and that the petitioner went away after four days. What is significant is that in O.P. No. 5 of 1987, the respondent had not made any attempt whatever to state even such facts as would be relevant for a consideration of the question of jurisdiction of the District Court, Ramanathapuram at Madurai to entertain the petition filed by him under S 25(1) of the Act. However, in the counter filed by the petitioner in O.P. No. 5 of 1987 in paragraph 3 she had taken the definite stand that eversince birth, the minor son had been residing only with her at Madurai and therefore, the District Court, Ramanathapuram at Madurai, did not have jurisdiction to entertain the petition. In paragraph 11 of the counter, the petitioner had also stated that she was taken along with the minor son to the house of the respondent on 17-8-1986 and then the respondent caused a fracture to her hand and she was then taken back along with the child to Madurai on the fifth day. It is thus seen from the counter filed by the petitioner that she had raised an objection to the jurisdiction of the District Court, Ramanathaparam at Madurai, to entertain the petition Consistent with the stand so taken, the petitioner filed I.A. No. 306 of 1989 praying that the issue regarding the territorial jurisdiction of the District Court, Ramanathapuram at Madurai, to entertain O P. No 5 of 1987 should be tried as a preliminary issue. Even in the affidavit filed in support of that application, the petitioner had stated that since birth, the minor had resided continucusly with her at Madurai and that at on point of time the respondent had the custody of the miner, and, therefore the petition under S. 25(1) of the Act was not en-tertainable by the District Court, Ramanatha at Madurai. In the counter filed by the puram respondent herein, he contended that the joint family properties are situate in Virudhunagar and the natural place of residence of the minor is only Virudhunagar and that the custody of the minor by the petitioner is unlawful. It was also further stated that the minor was forcibly removed by the petitioner and the Secretary of the Uravinmurai and that the jurisdiction of the District Court, Ramanathapuram at Madurai cannot be ousted. In the reply filed by the petitioner, after referring to the birth of the minor son on 6-6-82, she stated that from the date of birth, the minor son had been under her care and custody and that on the suggestion and advice of respectable members of Virudhunagar Nadargal Uravinmurai, she went to the house of the respondent on 17-8-1986 and the respondent made it impossible for her to stay there and she was, therefore, taken back along with the minor son to Madurai and the temporary stay between 17-8-1986 and 22-8-1986 cannot be equated to the ordinary residence of the minor, which from the date of his birth, was only at Madurai. THE alleged removal of the minor son, who was stated to be residing at Virudhunagar, was refuted and it was reiterated that the ordinary residence of the minor was only at Madurai.

(2.) BEFORE the court below, on behalf of the petitioner, Exs. A1 to A17 were marked, while, on behalf of the respondent, Ex. B1 alone was filed and there was no oral evidence on either side. Without considering any of the documents filed by either side, the learned District Judge, by a very curious process of reasoning based on the theory that the minor son was conceived in the house of the respondent at Virudhunagar and that the minor, though he had remained with his mother, should be considered as having ordinarily resided at Virudhunagar, held that the District Court, Ramanathapuram at Madurai, had jurisdiction to entertain O.P. No. 5 of 1987 filed by the respondent herein. It is the correctness of this that is questioned by the petitioner in this Civil Revision Petition.

(3.) IT would be appropriatee at this stage to refer to the argument of the learned counsel for the respondent that the respondent should be deemed to have been in constructive custody of the minor and therefore, the proceedings in O.P. No. 5 of 1987 were properly laid before the district court, Ramanathapuram at Madurai. Apart from the circumstance that the evidence clearly establishes that the minor ordinarily resided at Madurai, not within the jurisdiction of the district court, Ramanathapuram at Madurai, it is seen that the respondent has not mentioned anything in his petition in O.P. No. 5 of 1987 either about the so-called constructive custody or the loss of it. IT had earlier been pointed out that how even essential particulars to make out that the district court, Ramanathapuram at Madurai, had jurisdiction to entertain the petition had not been stated IT is, therefore obvious that the argument of constructive custody has been put forward only with a view to sustain the order of the court below, if possible. There is, in my view, no substance in this argument. The respondent bad not put forward the case of constructive custody of the minor at all and how that had been in any manner interfered with by the petitioner. Further the expression used in S. 9(1) of the Act is the place where the minor ordinarily resides. The constructive residence of the minor cannot be slid to have been contemplated at all by the use of the aforesaid expression. IT is important to note that the jurisdiction of the court is not to be decided with reference to the place of residence of the guardian, but the place of the ordinary residence of the minor and if on the evidence it is found that the minor had ordinarily resided at a particular place, it is not possible to ignore that and to treat, by a fiction, that the minor was in the constructive custody of his father elsewhere, as if such place of the ordinary residence of the minor for purposes of S 9(1) of the Act. Besides, the concept of constructive custody is a court-evolved one and does not find expression in the language of the Act. IT was only with a view to effectively implement the provisions of the Act that courts had to devise the idea of constructive custody, particularly to give effect to S. 25 of the act in certa n circumstances. That, however, cannot be applied to cases where the jurisdiction of the court has been made to depend upon the ordinary residence of the minor. There is, in my view, no scope whatever for importing constructive custody into S. 9(1) of the Act, which clearly spells out the requirement, viz., the ordinary residence of a minor within the jurisdiction of the concerned district court as the essential requisite to clothe that court with jurisdiction.