MAYA DEVI Vs. AMOLAK RAM

JUDGEMENT

(1.) This is an appeal from the order of the Guardian Judge, Jullundur, ordering Maya Devi, mother of the two minors, and Ram Lal to restore the minors' custody to their father Amolak Ram. The present proceedings under section 25 of the Guardians and Wards Act were started in March, 1954 by Amolak Ram on the ground that his wife Maya Devi had become unchaste and was living with Ram Lal and therefore it was not desirable that his minor daughter and his minor son should be allowed to live with them. Admittedly in March Ram Lal and Maya Devi were living in Ludhiana along with the minors while the present application was made in the Court of the Guardian Judge, Jullundur. The respondents raised a preliminary objection that as the minors were ordinarily residing in Ludhiana the Jullundur Court had no jurisdiction to hear this petition. This objection was overruled and then the evidence was led by the parties on merits. Some time after the respondents raised a new plea to the effect that the minors were not the children of Amolak Ram but that they were the children of Ram Lal and that for this reason also Amolak Ram was not a fit person for their custody. The Guardian Court came to the conclusion that Amolak Ram is the minors' father and that as their natural guardian he is entitled to their custody, particularly when their mother is openly leading an immoral life by living with Ram Lal who is not her husband. Maya Devi and Ram Lal are dissatisfied with this decision and have filed the present appeal in this Court.

(2.) The learned counsel for the appellants first urged that the Jullundur Court had no jurisdiction to hear the petition. The Guardian Judge held in favour of his jurisdiction on the ground that as the applicant was living in Jullundur the minors must be deemed to be in his constructive custody. Now, section 25 of the Gurdians and Wards Act lays down that the Court may order the custody of the wards of their guardian and may cause the minors to be arrested for this purpose. Section 4(5) of the Act defines the "Court" as one having jurisdiction to entertain an application under the Act for an order appointing or declaring a guardian. Therefore an application under section 25 of the Act should be made to a Court which has jurisdiction to appoint and declare a person as guardian. Under section 9 such a jurisdiction vests in the Court of a place where the minor ordinarily resides. Thus an application under section 25 lies only to a Court of a place where the minor ordinarily resides. It appears to me that in this view of the matter it cannot be said that a minor ordinarily resides where his guardian lives when the minor is not in the custody of that guardian. Where a minor ordinarily resides is a question of fact to be decided on the circumstances of each case. In the present case the minors are now about 6 and 4 years old and at the time of the application they were about 4 and 2 years old. The case of Amolak Ram is that they were born in the house of their maternal grandfather which is within the jurisdiction of Jullundur. It is not his case that the minors ever resided with him. Maya Devi, Ram Lal and Hans Raj brother of Maya Devi have stated that the minors were born in Ludhiana in the house of Ram Lal and have been living there with their mother ever since. Hans Raj denied that his father or his mother ever lived in village Malloopota where Amolak Ram alleges the minors were born. Maya Devi has produced entries from municipal birth registers showing that a girl and a boy of about the same age a the present minor were born to Ram Lal in Ludhiana. Amolak Ram has not produced any such entries, nor any independent or reliable evidence to show that they were born in village Malloopota or within the jurisdiction of Jullundur Court. Amolak Ram has admitted that the had filed a complaint against Maya Devi etc., sometime in 1950 under section 498, Indian Penal Code, and that another complaint was filed under the same section sometime in 1951. He had also filed a suit for restitution of conjugal rights in October, 1952 and had obtained an ex parte decree on the 26th of March, 1953. It is not his case that Maya Devi ever complied with the decree for restitution of conjugal rights that he had obtained against her. It may be stated here that the minor girl was born in 1951 and the boy was born in 1952. It is clear from all this evidence and from the evidence of Maya Devi and her witnesses that she had been living in Ludhiana with Ram Lal since a considerable time without any intention to ever reside in Jullundur or with Amolak Ram. The minors have been admittedly living with her all along. It must therefore be held that the minors ordinarily reside in Ludhiana and cannot be held to be so residing in Jullundur. In view of this finding I hold that Jullundur Court had no jurisdiction to entertain this petition under section 25 of the Act.

(3.) Shri Som Datta Bahri has, however, urged that the appeal should not be accepted on the ground that Jullundur Court had no jurisdiction to entertain the application and has invited my attention to section 21 of the Code of Civil Procedure. He had urged that the appellants were not prejudiced by the trial in Jullundur and that there is no suggestion even that they were so prejudiced. It is true that by virtue of section 141, Civil Procedure Code, the Guardian Court should follow the procedure laid down in the Code as far as possible. Taking into consideration, however, the nature of the proceedings in the guardianship Court and the jurisdiction given to the Guardian Court over the minors and necessity of its watching over minors' welfare it appears to me doubtful if the provisions of section 21 should be strictly applied to proceedings under the Guardians and Wards Act. It is, however, not necessary to decide this matter finally as the appeal succeeds on another ground.