RAVINDRA SHARM VAISH Vs. SMT. KUSUM AGARWAL

JUDGEMENT

(1.) This appeal, filed under section 47 of the Guardians and Wards Act (hereinafter referred to 'as the Act') is directed against the order dated 18-3-1981 passed by First Additional District Judge, Bhopal in Misc. Case No. 29/78, holding that it has no jurisdiction to entertain the suit.

(2.) The appellant had filed an application under section 25 of the Act read with section 6 of the Hindu Minority and Guardianship Act, alleging that the respondent who is his married wife had left him with two minor sons viz., Rajesh and Ritesh and is living at Lucknow. According to the appellant, he being the natural guardian of these minors was entitled to act as such. This application has been dismissed as not within the jurisdiction. The learned Judge by the impugned order held that it was not a case where the respondent's wife was temporarily residing at Lucknow but was a case where she has left the appellant and gone to Lucknow for her permanent residence. In such a case, cause of action if any, would arise only at Lucknow and not at Bhopal. This is the order impugned in he present appeal.

(3.) A perusal of the application indicates that the parties were married in May, 1970, their first son was born on 27-5-1971 and second son on 2-8-1975. The application further indicates that in Feb., 1971, the respondent had left the appellant and gone to her father's residence at Lucknow. Since, he failed in his efforts to get her back, an application under section 9 of Hindu Marriage Act was filed at Mandleshwar which ultimately resulted in a compromise. The application further alleges that the respondent went to Lucknow on 10-4-1977 along with her 2 minor sons and was not prepared to come back to the appellant under any circumstances. The application also alleges that the appellant had gone to Lucknow on 10-6-1977 to fetch them but she refused to come back with the appellant. After all his efforts to bring back the respondent to Bhopal failed, the appellant filed the present application on 9-7-1977. The application would, therefore, indicate that the respondent and her two children were living, at Bhopal upto 10-4-1977 on which date the respondent left Bhopal permanently to live with her parents at Lucknow. Since 10-4-1977 not only respondent but the minor children are also staying at Lucknow. The question under the circumstances is whether the cause of action arose at Bhopal ? The question is really concluded by the decision rendered by a Division Bench of this Court in Bhagwati Vs. Pyarelal (1981 M.P.L.J. 1208). In the said case the Division Bench, interpreting the words 'Ordinarily resides' appearing in section 25 of the Act held that it means the place where minor generally resides or is expected to reside The place where minor was actually residing at the time of making the application is immaterial. In the aforesaid case minor was residing with his mother who bad left the father about a year before and had no intention of returning. In the said circumstances, the Court held that the minor must be deemed to 'ordinarily resides' where the mother lived and the court in whose jurisdiction the father lived was not competent under section 9 to pass the order under section 25 of the Act. The facts of the is case are more or less similar to the facts of the present case. Here also minors are staying with their mother who had left their father permanently and has no intention to return. Under these circumstances the said judgment would also govern the decision in the present appeal. In this view of the matter the impugned judgment must be held to be correct and suffering from no defect whatsoever.