KALYANI Vs. GAJENDRA

JUDGEMENT

(1.) This Miscellaneous Petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dtd. 8/2/2021, passed in MJC-G.W./03/2020 by Additional District Judge, Nagda, District - Ujjain (MP), whereby the petitioner's application filed under Sec. 9 of the Guardian and Wards Act, 1890 (for short 'the Act of 1890') raising the ground of territorial jurisdiction to entertain the application filed by the respondent No.1/husband for guardianship and custody of their daughter has been rejected and it is held that Court at Nagda shall have the jurisdiction and not the Court at Nagpur where according to the petitioner, the daughter is residing.

(2.) In brief, the facts of the case are that the petitioner and the respondent No.1 are husband and wife and they had a dispute which led to the petitioner leaving her matrimonial house at Nagda along with her daughter in the month of April 2020, to Nagpur where her parents are residing. Since the petitioner did not return, therefore on 28/8/2020 the respondent No.1/husband filed an application under Sec. 7, 10 and 12 of the Act of 1890, seeking his appointment as guardian of the minor girl and custody of the child who is aged about nine years at that relevant point of time. In the aforesaid proceedings, the application under Sec. 9 of the Act of 1890 was filed as aforesaid with a prayer that the proceedings be cancelled and the respondent No.1/husband be directed to file the application for custody of the minor child in the Court at Nagpur. The learned Judge of the trial Court, after considering the judgment rendered by the Apex Court in the case of Ruchi Majoo Vs. Sanjeev Majoo reported in (2011) 6 Supreme Court Cases 479 has rejected the application holding that the daughter is residing ordinarily at Nagda only and thus, it is held that Court at Nagpur would not have the jurisdiction to entertain the same.

(3.) Counsel for the petitioner submits that learned trial Court has not properly appreciated the reasons assigned by the Apex Court in the case of Ruchi Majoo (supra) as also the mandate of Sec. 9 of the Act of 1890 which clearly provides that only the Court where the minor child ordinarily resides would have jurisdiction, and admittedly, after leaving Nagda, the daughter of the petitioner has taken admission in the school at Nagpur, the receipt of which has also been placed on record and thus, it cannot be said that it was a flying visit of the child to Nagpur for a temporary period. Hence it is submitted that impugned order dtd. 8/2/2021 be set-aside and the application filed under Sec. 9 of the Act of 1890 be allowed.