APARNA BANERJEE Vs. TAPAN BANERJEE

JUDGEMENT

(1.) The respondent filed a petition under S.25 of the Guardians and Wards Act for the custody of the, minor child. The petitioner-mother raised two preliminary objections, one of them, with which only we are concerned in this petition, being that the Court at Faridabad has no jurisdiction to entertain the petition as the ordinary place of residence of the minor at the time of its filing was Calcutta and not Faridabad. The petitioner's objection having been overruled by the impugned order she has come up in revision.

(2.) It is not disputed that the respondent left her husband in May 1979 along with the minor and was since then living at Calcutta. The minor being of the age of less than five years, the mother was entitled to his custody till the application was filed. The learned District Judge relying on Mt. Nazir Begarn v. Ghulam Qadir Khan, AIR 1938 Lah 313 overruled her objection. However, the decision in Mst. Nazir Begam's case (supra) had been rendered on totally different facts and has no bearing on the present case. There the mother applied for the custody of the minor daughter to the Court at a place where the minor was residing shortly before the filing of the application. She was removed to a place in the neighbouring State and was living there when the application was filed. On these facts it was held and rightly so, that the minor was ordinarily residing with her mother at a place where the application was filed and her removal shortly before would not change her ordinary place of residence. The learned counsel for the respondent before me relied on two other decisions, i.e. Smt. Kamlesh v. Ram Paul, (1971) 73 Pun LR 221 and Bhola Nath v. Sharda Devi, AIR 1954 Pat 489 in support of the impugned order. But both the decisions again are distinguishable on the facts and are of no help to him. In Smt. Kamlesh's case (supra) the minor had been removed from the custody of the natural guardian shortly before the application for his custody was filed. Similarly, in Bhola Nath's case (supra) the minor had been removed stealthily by the father from the place where he was residing with the mother a few days prior to the filing of the application. On the contrary in the present case the child was residing with his mother, who was at that time entitled to his custody, for more than 3 years prior to the date of the application. It cannot, therefore, be said that the minor had been illegally removed from the custody of the father or that he was ordinarily residing at Faridabad where his father was living. On similar facts the application filed by the father against the mother for the custody of the minor was dismissed by a Division Bench of the Saurashtra High Court in Arunkumari v. Jhala Harpal Singh Natwar Singh, AIR 1954 Sau 152 with the following observation :

(3.) A similar view was expressed by Harihar Pershad Jaiswal v. Suresh Jaiswal, AIR 1978 Andh Pra 13, while dismissing the application of the father in the following words :-