ASRA SHAKEEL Vs. SHAKEEL SULEMAN

JUDGEMENT

(1.) THE respondent at the hearing of the petition has raised a preliminary objection that this Court has no jurisdiction to grant any relief as no part of the cause of action has arisen within the territorial jurisdiction of this Court. It is, therefore, contended that the petition which is filed invoking Clause 17 of the Letters Patent of this Court read with section 3 of the Guardians and Wards Act, 1890 is not maintainable.

(2.) BRIEF narration of facts may be necessary to decide the controversy. The petitioner married respondent on 24th January, 1987. Out of this wedlock a son named as Faraz was born on 22nd October, 1987. On 3rd November, 1998 the petitioner left Madurai taking along with her the minor son Faraz who was then schooling at Vikasa School at Madurai in Standard VI. The petitioner while leaving left a note. Only the material part of the note in so far as the present issue is concerned will be referred to. The sum and substance in the note is that the petitioner informed the respondent that she is leaving the matrimonial home. On 27th November, 1998 the petitioner and minor son arrived at Hyderabad. In January, 1999 petitioner arrived at Mumbai with Faraz. The custody petition was filed on 15th January, 1999. In the petition in paragraph 9 it is averred that the petitioner is in Mumbai since January, 1999. It is then averred that the minor child would be admitted in Green Lawns School in Mumbai in VIIth Standard in new term commencing March, 1999. In paragraph 18 it is averred that the petitioner and the minor child Faraz are in Mumbai and intend to make Mumbai their permanent residence.

(3.) ON behalf of the respondent his learned Counsel has referred to section 9 of the Guardians and Ward Act, 1890, hereinafter referred to "the Guardians Act". In terms of section 9 (1) if the application is in 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. Learned Counsel tries to point out that therefore for a Court to have jurisdiction it is only that Court where the minor ordinarily resides which would have jurisdiction. Sub-section (4) of section 4 of the Guardians Act defines District Court to include a High Court in the exercise of its Ordinary Original Civil Jurisdiction. It is pointed out by the learned Counsel that right from the date of marriage i. e. 27th January, 1987 till the petitioner left her matrimonial home along with the minor, the ordinary residence of the minor was at Madurai. In that context it is pointed out that merely because the petitioner has left with the minor and temporarily brought the minor to Mumbai would not mean that the ordinary residence of the minor is at Mumbai. Learned Counsel has relied on several authorities which I will advert to later on. On behalf of the petitioner her learned Counsel has contended that if the averments at paragraph 18 are perused, then it is clear that the petitioner has left the matrimonial home for good with the intention of setting up a permanent residence in Mumbai. The minor child is with the petitioner. It is then pointed out that if Clause 17 of the Letters Patent of this Court is considered read with section 3 of the Guardians Act, it is this Court which will have jurisdiction to hear and decide this matter. It is also pointed out that the question is a mixed question of fact and law which this Court should not decide at this stage but defer its decision on merits. It is next contended that at any rate even while considering the petition on the issue of jurisdiction what the Court must consider is the interest of the minor child. Learned Counsel has relied on various judgments in support of his contention. The same will be adverted to while deciding the issue in controversy.