CHANDRA KISHORE Vs. HEMLATA GUPTA

JUDGEMENT

(1.) THIS is a revision which has been filed by Sri Chandra Kishore and Sri Sohan Lal against an order of the District Judge of Saharanpur, exercising jurisdiction over Dehra Dun Area, holding that an application made by Srimati Hemlata Gupta for her appointment as a guardian of her two minor children was maintainable in his Court.

(2.) SRIMATI Hemlata, the opposite party, was married to Chandra Kishore some years ago. This marriage produced two children Rakhesh, aged about four and a half years, and Gambhir, aged about two years and a few months. Chandra Kishore belongs to Meerut and has the permanent residence at that place. After the marriage the young couple resided in Meerut, and the children, after their birth, also resided with their parents at Meerut. Unfortunately, the husband and the wife started having differences, so much so that Hemlata, the wife, decided to leave her husband's residence to go and live with her parents who resided at dehra Dun. On 1-10-1953, Hemlata, with her two little sons left Meerut to arrive at Dehra Dun with the object of staying there with her parents. The departure of Hemlata with her children caused some amount of consternation in the family, with the result that Hcmlata's father-in-law came to Dehra Dun and some how was able to return to Meerut with his two grandsons. The father-in-law returned to Meerut with the children on the 2nd, namely the same day that he had gone to Dehra Dun. On 3-10-1953, Hemlata made the application which has given rise to this revision, for being appointed guardian of the person of her two minor children, in the court of the District Judge of saharanpur at Dehra Dun. Her allegation in the application was that she had been deprived of her children by her father-in-law by practising fraud on her. The application was contested by the husband and the father-in-law. We are not here concerned with all the grounds on which contest was made but with only one such ground. The ground which we are concerned in this revision is the plea of jurisdiction that was raised on behalf of the two applicants. It was contested that the Court in Dehra Dun had no jurisdiction to entertain the application. This plea was raised on the strength of Section 9, Guardians and Wards Act. The material portion of Section 9, sub-s. (1), is in these words:

(3.) IN order to have jurisdiction the Court must find that the minor in respect of whom the application for guardianship is made "ordinarily resides" within the jurisdiction of the Court. The question, therefore, is what the words "ordinarily resides" signify. These words have been the subject-matter of judicial interpretation. The words "ordinarily resides" obviously mean more than temporary residence, even though such residence is spread over a long period. In the case of people" who are 'sui juris', the difficulty in applying these words is considerably minimised because the person in respect of whom the question of residence may arise can give evidence to say where he actually ordinarily resides. There may be evidence of his doing work in a particular place; there may be evidence of his having an abode in a particular place, and there may be also evidence of his being employed or of his earning his livelihood in a particular place. Under such circumstances, namely when evidence of the character just indicated is available the question becomes not difficult of decision, for the question a to what is the ordinary residence of a person is a question of fact. The difficulty arises when this Question is to be determined in relation to the residence of a minor for, a minor cannot, in law, 'express his mind in regard to any matter. He can have no status attaching to him by reason of any contractual obligations like that of service etc. , and, therefore, the question has to be determined, when it arises in relation to a minor by reference to some other kind of evidence. Counsel for the opposite-party attempted to argue this matter on the analogy of the law applicable to domicile. I am, however, of the opinion that the law applicable to cases of domicile is really of no help in determining the question that calls for decision in this case.