ADESH GUPTA Vs. SADHNA GUPTA

JUDGEMENT

(1.) In this writ petition filed under Article 227 of the Constitution of India, the petitioners have challenged the validity of the order dated 5-5-2011 passed by the trial Court by which the application preferred by the petitioners under Order 7, Rule 11 of the Code of Civil Procedure has been rejected. In order to appreciate the petitioners' challenge to the impugned order, few facts need mention, which are stated infra.

(2.) The marriage of petitioner No. 1 and the respondent was solemnised on 28-6-1998. From the wedlock, a son and a daughter, respectively were born. The respondent filed a petition under section 9 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act') at Chhattarpur on 18-2-2011 for appointment of respondent as guardian of the minor children and for obtaining custody of the children. The petitioners on receipt of notice of the proceeding, filed an application under Order 7, Rule 11 of the Code of Civil Procedure (hereinafter referred to 'CPC.') on the ground that the children are not residing within the territorial jurisdiction of the Court at Chhattarpur and are studying in boarding school in Chandigarh, therefore, the Court has no territorial jurisdiction to deal with the petition. The respondent filed reply to the aforesaid application and opposed the prayer made in the application. It was averred in the reply that the children were taken out from Chhattarpur without her consent.

(3.) The trial Court vide order dated 5-5-2011 inter alia held that respondent- wife is residing at Chhattarpur and in case there would not have been any dispute between petitioner No. I and the respondent, the children would have remained at Chhattarpur and, therefore, the children shall be deemed to be the ordinary residents of Chhattarpur and the Court therefore has the territorial jurisdiction to deal with the petition.