HIMANSHU MAHAJAN Vs. RASHU MAHAJAN

JUDGEMENT

(1.) IN this revision petition filed under Section 115 of the Code of Civil Procedure, the petitioner has challenged an order passed on 11th September, 2006 by the learned Civil Judge (Senior Division), Sundernagar. Vide this order, the learned Court below rejected the preliminary objection raised on behalf of the petitioner to the effect that it did not have territorial jurisdiction to entertain and proceed with the petition filed by respondent No.1 against the petitioner and respondents No.2 to 5 under Section 25 of the Guardians and Wards Act, 1890. By thus rejecting the aforesaid preliminary objection of the petitioner, the learned Court below held that it has the jurisdiction to entertain and proceed with the aforesaid petition.

(2.) BRIEF facts leading to the filing of this petition are that the marriage of the petitioner and respondent No.1 was solemnized on 25th November, 2003 according to Hindu rites as well as rituals at New Delhi and out of the wedlock Master Aryan (Chakshi) was born on 2nd January, 2005 at Inderpur Grover Nursing Home, New Delhi. The petitioner and respondent No.1 lived together at New Delhi. Whereas respondent No.1 belongs to Tehsil Sundernagar, District Mandi in Himachal Pradesh, the petitioner belongs to New Delhi. It was the contention of respondent No.1 that she was ousted from the house of the petitioner on 10th August, 2005. The allegations with respect to demands of dowry, mal-treatment and harassment etc. have also been levelled by respondent No.1 against the petitioner during her stay with the petitioner at New Delhi. Apparently, respondent No.1 as a consequence of the marital discord between the husband and wife left New Delhi and came to Sundernagar to reside with her parents. It is the allegation of respondent No.1 that while she left New Delhi for Sundernagar, she was not allowed the custody of her son who was forcibly kept at New Delhi by the petitioner and respondents No.2 to 5. It is in this background that respondent No.1 filed a petition under Section 25 of the Guardians and Wards Act, 1890 (1890 Act for short) for the custody of Master Aryan, her son. It is in this petition, based on the aforesaid circumstances that the petitioner raised a preliminary objection in the trial Court that since Master Aryan, the son whose custody was the subject matter of the petition under Section 25 of the 1890 Act was ordinarily residing at New Delhi, the Courts at New Delhi alone have jurisdiction to entertain and proceed with an application under Section 25 of 1890 Act and that the Court at Sundernagar did not have the territorial jurisdiction for this purpose. As noticed at the outset, the aforesaid preliminary objection did not find favour with the learned Court below which, while rejecting the same decided that it has the jurisdiction and accordingly proceeded to deal with the case. In taking this view the learned Court below was guided and influenced by the fact that the expression "ordinary residence" of the child is to be construed with reference to the residence of the mother. This view of the learned Court below was buttressed by the consideration that a child below the age of 5 years is to reside ordinarily with the mother and, therefore, since the mother is residing at Sundernagar and even though the child is not residing at Sundernagar and had never resided at Sundernagar, the Court at Sundernagar had the jurisdiction to deal with the case. Section 9 of 1890 Act reads thus:-

(3.) IT was perhaps the aforesaid stipulation in Clause (a) to the effect that the custody of a minor who has not completed the age of five years should ordinarily be with the mother which resulted in the learned Court below taking the aforesaid view leading to the aforesaid decision with respect to the ordinary residence of the child being at Sundernagar.