USHA DEVI SHARMA Vs. RAJENDRA KUMAR KALIA

JUDGEMENT

(1.) These two revision applications are being disposed of by a common judgment since they arise out of the same order in proceeding under Section 25 of the Guardians and Wards Act, 1990 (hereinafter referred to as 'the Act'). While Civil Revision 401 of 1989 has been filed by Smt. Usha Devi Sharma, the applicant in the said proceeding in the Court below against the order refusing her petition for interim custody of the child under Section 12 of the Act, Civil Revision No. 144 of 1989 has been filed by the opposite party against the order disallowing their objection as to jurisdiction of the Court. The principal contestants are the two sisters, with their respective husbands arrayed on the sides of their wives.

(2.) The relevant facts of the case are that a male child called Amit @ Sharad was born to Smt. Usha Devi Sharma (hereinafter referred to as 'the petitioner) on 1-11-1982 at Bhagalpur. The child being the third issue of the parents, the elder sister of the petitioner (Smt. Shakuntala Devi Kalia) (hereinafter referred to as 'the opposite party'), who was issueless, expressed a desire to the child in adoption and on 26-11-1982 some kind of 'agreement' is also said to have been executed in that regard. According to the opposite party thereafter on 5-3-1983 the formal adoption of the child by her took place and the child ever since has been living with her as adoptive mother at Daltonganj where the family resides. According to the petitioner, however, although initially she and her husband in order to keep good relation with her sister had agreed to give the child in adoption, later they gave up that idea. According to her further, the opposite party come to Bhagalpur in January, 1985 to invite the petitioner and her husband to attend some marriage ceremony in her family at Daltonganj to be held in February, 1985 and again proposed to take the child in adoption and on refusal by the petitioner, the opposite party took the child with them saying that they would like to keep the child for sometime out of love and affection and assuring the petitioner that he would be returned to her when she would come over to Daltonganj to attend the marriage ceremony, According the petitioner, the child was not returned even after the marriage ceremony was over, initially with the request to allow the child to remain with them for some further period of three to four months, and later they refused to return the child on the plea that the child was their adopted son. In the circumstances, the aforementioned application under Section 25 of the Act giving rise to Guardianship Case No. 49 of 1986 in the Court of District Judge, Bhagalpur, was filed for a direction to the opposite party to restore the aforesaid Amit to the custody of the petitioner. During the pendency of the case an application under Section 12 of the Act for Interim custody of the child was filed on behalf of the petitioner on 10-6-1987. While the case was in the stage of examination of witnesses, an application challenging the jurisdiction of the Court was filed on behalf of the opposite party on 21-4-1988. The aforesaid two petitions have been rejected by the impugned order in the manner stated above and hence these revisions.

(3.) I will take up the question of jurisdiction of the Court which is the subject matter of Civil Revision No. 144 of 1989. Mr. Sukumar Sinha submitted that an application in respect of the custody of the child or the minor can be filed only in a Court within whose local jurisdiction the minor ordinarily resides and since admittedly on the date of application the child was residing at Daltonganj with his adoptive parents, the Court of District Judge of Palamau at Daltonganj alone will have jurisdiction in terms of Section 9 of the Act. He further submitted that even on the own case of the petitioner, the child had been taken to Daltonganj with the consent of the petitioner and her husband and, therefore, it will amount to 'removal' within the meaning of Section 25 So as to confer jurisdiction upon the Court to try the case thereunder. Mr. S.C. Ghose, appearing on behalf of the petitioner, on the other hand, submitted that the question of jurisdiction in terms of Section 9 of the Act is relevant only in a case where the dispute is with respect to the guardianship of the minor between the parties and not in a proceeding under Section 25 where the Court has only to see as to whether the minor has left or is removed from custody of his guardian from that place and it will be for the welfare of the minor to restore (he custody or not.