RAJBIR YADAV Vs. POONAM KUMARI

JUDGEMENT

(1.) The instant petition stands directed, against, the impugned order pronounced by the learned Additional Chief Judicial Magistrate, Nalagarh (Exercising the Power of District Judge, under Guardian and Wards Act), District Solan, H.P., whereunder, the interim custody of the minor child namely Shivansh Yadav, was, till disposal of the main petition, ordered to be handed over to his natural guardian/respondent herein.

(2.) Without adverting to the merits of the case, the paramount fact, rather rests, upon, the anvil qua the petitioner herein, through casting an application before the learned Court below, hence therethrough seeking rejection of the plaint or return of the petition, to the Court holding the jurisdiction. The afore application was instituted or filed subsequent to the learned trial Court making the impugned decision upon the afore apposite application. Consequently, the learned trial Court was not enjoined to make any order thereon, before, its proceeding to make an affirmative decision, upon, Cr.M.A No. 304/6 of 2017. Conspicuously, dehors, the afore application standing filed subsequent to the impugned verdict, being recorded, the factum qua existence of a specific mandate, in Sec. 9 of the Guardian & Wards Act, 1890, provisions whereof stand extracted hereinafter, whereunder, upon ingredients thereof' being satiated, thereupon even the assumption, of, jurisdiction, upon, the apposite application, whereon the impugned order stood rendered, hence stood jurisdictionally stained.

(3.) The learned trial Judge was hence enjoined to make discernments from the memo of parties qua, whether, the minor Shivansh Yadav, was, thereat residing or was ordinarily residing, within, the territorial jurisdiction, of, the Court located at Jhajjar. Nowat, the memo of parties, further, discloses that the minor Child, was, residing alongwith the petitioner at the matrimonial home, of, the respondent herein, and only on 11.11.2017, it stands averred in the application, qua the respondent herein, being exiled, from her matrimonial home, and, thereat the custody, of, the minor child rather being forcibly snatched from her by the petitioner herein. The afore averment, as, occurs in paragraph 3, of the petition, does primafacie, discloses qua the minor child at the stage of meteing, of, an order upon the apposite application, rather ordinarily residing, within, the territorial jurisdiction, of, the Courts located at Jhajjar. Consequently, prima facie for jurisdictional disempowerment, the impugned order is hence quashed and set aside. The matter is remanded to th learned trial Court concerned, to, after making a decision, upon, an application, cast under the provisions of Order 7 Rule 11 CPC, to, thereafter, in case, it holds that the Court located at Nalagarh, holds jurisdiction, to, try the main petition, and, make a fresh decision, upon, the apposite application in accordance with law. The parties are directed to appear before the learned trial Court on 18.12.2018. Till a decision is rendered upon the afore petition, the petitioner shall continue to hold custody of the minor child. The learned trial Judge is censured for his making primafacie, a, jurisdictionally void verdict.