LAKSHMI NARAIN Vs. USHA RANI

JUDGEMENT

(1.) This appeal has been filed by Lakshmi Narain against his wife Usha Rani as his application under section 25 of the Guardians and Wards Act for obtaining the custody of his son Sanjay instituted on 15th May, 1974, had been dismissed by Shri R. K. Synghal, the Guardian Judge, Amritsar. He had found that he had no territorial jurisdiction to entertain it as according to him, the minor child whose custody was demanded eras ordinarily residing at Ludhiana

(2.) Both the parties got married at Amritsar on 29th January, 1967. After a few months of the marriage they began to live separately it Amritsar. Sanjay was born on 17th April, 1968. Both the parties considered themselves to be divorced under custom with effect from 21st April, 1971. Shortly thereafter the appellant got re-married. The respondent herself performed her second marriage with another person on 27th January, 1974. Actual custody of the child remained with the mother from birth till the filing of the application alleging removal from custody. The minor was being educated at some school at Amritsar by the respondent but after she got married and settled at Ludhiana she brought the child to that place.

(3.) The appellant for explaining that the Court at Amritsar had the jurisdiction alleged in paragraph 9 of the application that the marriage between the parties was performed at Amritsar and then they lived as husband and wife in that city. The child was also said to have been horn there. The removal was alleged to have taken place from Amritsar. There was no assertion that at the time of the filing of the application the minor was ordinarily residing at Amritsar. The learned counsel for the appellant laid stress on this point that he had pleaded all the relevant facts and that it was for the Court to draw this inference as to what should be the place of residence of the minor. His argument is that the father being the natural guardian the minor should he deemed to have been residing at the place of the residence of the father. In certain kinds of cases this proposition of law can be accepted to be correct. On behalf of the appellant, reliance has been placed upon Kamlesh v. Ram Paul,1971 PunLR 221., There is some apparent similarity of the facts of that case with those of the present one. The marriage between the parties in that case had been solemnised in October, 1962. and on 30th December, 1963 the minor had been born. It was then in the month of January, 1967, that the wife left the house of the husband and came to the house of her mother at Patiala and brought the minor along with her. In March, 1967 the husband filed a petition under section 26 of the Hindu Marriage Act claiming the custody of the minor child who, according to him, had been allegedly removed from his guardianship by the wife. The application was resisted on the ground that the Court at Jullundur where the parties previously resided had no jurisdiction. It was held that 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 There is then this further remark that the actual place of the residence of the minor at the time of the application under section 9(1) of the Guardians and Wards Act does not determine the jurisdiction of the Court, as that may not be the place where the minor ordinarily resides. The distinguishing feature of the present case is that at no point of time the parties and the minor child had resided together. In the reported case, this joint residence had extended to a number of years and then the wife removed the child while both the parties were residing together at Jullundur. In the present case, the minor had throughout been living with the mother. The child was brought to Ludhiana in the natural course of events because the place of residence of the mother had been shifted to that place on account of her marriage I am thus of the view that so far as the present case is concerned the place of residence of the mother would determine the ordinary place of the residence of the minor child.