MADAN LAL Vs. BHOLI DEVI

JUDGEMENT

(1.) AN order passed by the learned District Judge, Jammu on 3 -5 -1984 is impugned in this appeal. The learned District Judge has directed that the ward be kept under the custody of the respondent, who is her mother and has issued warrants for the recovery of the ward from the appellant for implementing his order.

(2.) THE brief facts of the case are that the respondent Bholi Devi has stated in her application that she was married to the appellant at Jammu and out of the wed -lock a female child was born who was taken away from her custody by the appellant about eight months prior to the institution of the application, from Jammu. The minor female child is stated to be of tender age and it is stated that it would be in her benefit if the minor is placed in her custody The respondent has further stated that she is employed in the Education Department and is drawing salary and can look -after the minor very well, She claimed custody of the minor on these facts. Objections to this application were filed by the husband who has denied the averments made in the application. It is stated by the appellant that the minor was born at Lati Shat tehsil Sopore, the original home of the appellant on 12 -8 -1981 and the respondent without caring for the minor left the appellantâ„¢s home on 4 -8 -1981 and since then is being looked after by the appellantâ„¢s mother. Jurisdiction of the District Judge is also challenged. The parties led evidence before the court below to prove their respective contentions. On behalf of the respondent Joginder Raj and Garib Dass have appeared as witnesses besides the respondent has appeared as her own witness. On behalf of the appellant one Abdul Khaliq Bhat Advocate Sopore has appeared as a witness. The trial court after appreciation of evidence on record has come to the finding that the parties were married at Jammu and during the advanced stage of pregnancy of the respondent, the appellant had taken her to Lati Shat tehsil Sopore where she gave birth to the ward, a female child called Renu. The respondent alongwith ward returned to Jammu and was living with her mother. The appellant removed the ward from the respondents, custody at Jammu and took her to Lati Shat Tehsil Sopore. The respondent alongwith her mother had gone to Lati Shot to get the ward back but they were turned out by the respondent from his home. This finding of fact is arrived at by the trial court after thoroughly scrutinising and after weighing the evidence led by the parties. The trial court had rightly ignored the minor discrepancies in the statements of the witnesses and has based its conclusions on probalities and preponderance which a prudent man can conclude in the circumstances. On this basis the trial court has passed the impugned order and has ordered the custody of the minor ward to be handed over to the respondent

(3.) LEARNED counsel for the appellant has vehemently argued before me that the order passed by the trial court is bad and perverse and is against the weight of evidence on record. I have myself thoroughly gone through the evidence on record and the learned counsel for the appellant has critically analysed the evidence on the record with a view to convince me about the perversity committed by the trial court in arriving at the conclusions but I am unable to agree with him in this regard. After examining the evidence I am convinced that the ward was born at Sopore and the respondent had brought the ward to Jammu as she could not have afforded to leave the baby of one month behind her and desert a milk sucking baby in the manner in which it is suggested by the appellant The storey set up by the appellant about the desertion of the ward by the respondent is improbable and does not inspire confidence. As such it is held that the ward was removed by the appellant from Jammu from the custody of the respondent. This will settle the objection as regards the jurisdiction of the trial court. Under Section 9 of the Guardian and wards Act, an application for custody of an ward is to be made in a court in which the ward ordinarily resides. The ward cannot be held to be resident of Lati Shot, tehsil Sopore merely because he has born there. The ward was residing at Jammu with her mother at the time of removal and therefore District Court at Jammu had the jurisdiction to entertain and decide the application. Determination of question of jurisdiction depends on the facts of the case. It is found on evidence that the ward was residing at Jammu at the time of her removal from there, therefore, District Court at Jammu was vested with the powers to entertain the application and pass the order u/s 25 of the Guardian and wards Act.