RENU & ANR. Vs. MOMAM CHAND

JUDGEMENT

(1.) This revision has been filed by the petitioners against the order of District & Sessions Judge, Hanumangarh dated 27.4.2000 dismissing the present petitioner's application filed under O. 7 Rule 10 C.PC., and holding that he has jurisdiction to entertain and hear the proceedings filed by the present petitioner under section 7 and 25 of the Guardian and Wards Act, 1890 for appointment of guardian of minor Veenu and for being given the custody of the minor.

(2.) The facts necessary for comprehending the controversy are that on 15.11.99 the non-petitioner filed an application under section 7 and 25 of the Guardian and Wards Act, 1890 (for short 'the Act') interalia alleging that respondent's son Anil Kumar was married with present petitioner No. 1 and from this wedlock this minor Veenu was born 18.2.94. The couple was living with the present non-petitioner at Sangariya in District Hanumangarh. The case further is that on 13.1.1997 Shri Anil Kumar expired, the present petitioner No. 1 along with the minor continued to live at Sangariya and the present respondent made certain fixed deposits in the name of minor. Thereafter on 16.4.97 the petitioner contacted remarriage with the petitioner No. 2 who was the resident of Sahaba, District Churu and thereafter the petitioner No. 1 started living with the new husband at Sahaba. However, the minor continued to remain with the present non-petitioner and his wife being the paternal grand parents, who were properly maintaining her. It is also alleged that the petitioner No.2 is a widower having two sons from him earlier wife. It was then alleged that some two years back the petitioner No. 1 came to Sangariya and gave out to be desirous to live for about a fortnight at her parents house at Elnabad, and to keep the minor with her, and solicited permission of the non-petitioner to allow the minor to go with her on the assurance that, before returning to Sahaba she would manage the minor to be sent to Sangariya. This request was accepted and the permission was granted to the petitioner No. 1 to take the minor with her for about 10-15 days. According to the non-petitioner, the petitioner No. 1 did not keep the word and dishonestly took the minor with her to her second husband at Sahaba. It was also alleged that since the petitioner No. 1 has contacted remarriage, she has forfeited her right of guardianship and that before her contacting remarriage, way back on 17.3.97 there was a 'Panchayati' settlement (a negotiation arrived at with invoking of good offices of respectable persons of the community) to the effect that in the event of her remarrying, the minor will permanently live in Sangariya with her paternal grand partents. According to the non-petitioner since the second husband has two children from the earlier wife, it is not in the welfare of the minor to allow her to live at Sahaba. Various other relevant and necessary facts were also pleaded having bearing on the welfare of the minor and the right of guardianship.

(3.) On receipt of summons of this application the present petitioners on 18.3.2000 filed an application to the effect that the present non-petitioner in the application has described the present petitioner No. 1 to be resident of Sahaba District Churu and in pare 5 of the application has alleged that in the year 1997 she remarried with present petitioner No. 2 and went to Sahaba, and then in para 8 it has been contended that about 2 years back the present petitioner No. 1 took the minor with her to Sahaba. By recapitulating thesefacts it was contended that thus even according to the averments of the present non-petitioner, the minor is continuously living in Sahaba for the last about 2 years since before filing of the application and therefore by virtue of Sec. 9(1) of the Act the District Hanumangarh has no territorial jurisdiction to entertain the application as it is cognizable only by District Court, Churu. On this basis it was prayed that the petition filed by the present non-petitioner be returned to him for presentation to the proper Court. This application was duly replied vide reply dated 18.3.2000 itself contending that the application has been rightly filed, Churu Court has no jurisdiction and that instead of filing reply to the main application, by filing such application the matter is being unnecessarily delayed. With this the application was prayed to be dismissed with heavy costs. This application filed by the present petitioners for return of the main petition to the present non-petitioner for presentation to proper Court has been dismissed by the impugned order holding that since the present petitioner No. 1 took away minor with her to Elnabad under specific assurance and thereafter did not return, which averment has not been controverted so far and the question of jurisdiction has to be decided only on the basis of the averments of the application. It was also held that the question "where the minor ordinarily resides" is required to be determined on the basis of facts and attending circumstances of the case and where the minor has been removed fradulently, the mere fact that the minor is physically placed at a particular place, it cannot be said that the minor is ordinarily residing at that place. Inter alia on the basis of these findings it was held that District Court Hanumangarh has jurisdiction to hear the matter. It is significant to note that before the learned trial court the present non-petitioners had filed photo start attested copies of the alleged compromise dated 17.3.97 and all the three F.D. Rs. that were got prepared by the present non-petitioner on 19.3.97 as contemplated by the agreement dated 17.3.97.