KAMLESH Vs. RAM PAUL

JUDGEMENT

(1.) This appeal arises out of an order passed by the Subordinate Judge, Jullundur, dated October 6, 1969, whereby he allowed the application of the Respondent under Section 25 of the Guardian and Wards Act, 1890, for the custody of his minor son, Narinder Datt alias Pappu.

(2.) It is the common case of the parties that the marriage between the parties was solemnized in October, 1962 and on December 30, 1963, Narinder Datt alias Pappu was born out of this wedlock. It is also not in dispute that in January, 1967, Shrimati Kamlesh, left the house of the Respondent and came to the house of her mother at Patiala and brought Narinder Datt alias Pappu along with her. On March 27, 1967, Ram Paul, the husband of Shrimati Kamlesh Kumari, filed the present petition under Section 26 of the Hindu Marriage Act, 1955 , claiming custody of the minor child who according to him had been illegally removed from his guardianship by Shrimati Kamlesh Kumari. The application was resisted on the grounds that the Court at Jullundur had no jurisdiction, that the welfare of the child demanded that he should continue to live with the mother and that the present application was not maintainable on account of the previous litigation between the parties. On the basis of these pleadings, the following issues were framed:

(3.) The learned Counsel for the Appellant has challenged the findings on all the three issues. With regard to the jurisdiction of the Court at Jullundur, it is alleged that after the child was brought to Patiala, the ordinary place of residence of the minor should be considered to be Patiala and not Jullundur. There seems to be no merit in this contention. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of the boy or the unmarried girl. When the minor is removed from the custody of the natural guardian, his ordinary place of residence would continue to be the place where he was residing before he was removed. The actual place of residence of the minor at the time of the application under Section 9(1) of the Guardian and Wards Act does not determine the jurisdiction of the Court as that may not be the place where the minor ordinarily resides. The expression 'ordinarily resides' lays stress on the minor's ordinary place of residence even after the presentation of the application under Section 25 of the Guardian and Wards Act, 1890, and as such a place will have to be determined considering as to where the residence would have been if minor had not been removed to a different place before the application was filed. In a case where the application is filed shortly after the minor is removed, the place where the minor is residing after removal cannot be taken into consideration for the purposes of determining the jurisdiction of the Court which entertained the application, as even in such a case the ordinary residence would continue to be the place from where he was removed.