SUNITA JAIN Vs. MITTAR SAIN JAIN

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges the order dated 21st December, 1992 dismissing the objections of the petitioners with regard to territorial jurisdiction entertained by the Additional District Judge, Bhiwani under the Guardian and Wards Act, 1890 (for brevity, 'the Act').

(2.) BRIEF facts of the case unfolded in the pleadings of the parties are that respondent No. 1 Mittar Sain Jain had a son Sandeep Jain who was married to petitioner No. 1 Smt. Sunita Jain. From the wedlock two sons, namely, Sonnu and Monnu were born. However, Sandeep Jain died. The allegations made in the petition of the respondents are that petitioner No. 1 Smt. Sunita Jain had married with respondent No. 2-Jainender Kumar Jain. Therefore, Sonnu and Monnu have been neglected by petitioner Nos. 1 and 2 and the custody of Sonnu and Monnu is sought by the respondents. Petitioners opposed the application filed by the respondents for the custody of both the sons. On a preliminary objection having been raised, the trial Court framed an issue with regard to territorial jurisdiction and found that the Additional District Judge at Bhiwani has territorial jurisdiction under Section 9(1) of the Act. The operative part of the order reads as under :-

(3.) SHRI Kamal Sharma, learned counsel for the petitioners has argued that according to the mandate of section 9(1) of the Act, the petition was to be filed for the custody of the children before the District Court having jurisdiction in the place where the minors ordinarily reside. According to the learned counsel, the petitioners ordinarily reside necessarily has to mean the place where the children have a permanent residence. In support of his submission, the learned counsel has placed reliance on a judgment of Division Bench of Gujarat High Court in the case of Hari Chand v. Virbbal, A.I.R. 1975 Guj. 150 and also another Division Bench judgment in the case of N. Rami Reddi v. N. Padma Reddy, A.I.R. 1978 A.P. 30. In Hari Chand's case (supra) the expression 'ordinarily reside', was interpreted to mean the Court where the person having the custody of the child is permanently residing. This interpretation is discernible from para Nos. 3 and 4 on which reliance has been placed by the learned counsel. In N. Rami Reddi's case also the Division Bench of the Andhra Pradesh High Court has observed that the two factors shall be taken into consideration to decide the fact about the residence of the minor.