SANJAY AGARWAL Vs. KRISHNA AGARWAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 11-2-2008 as passed by the District Judge, Merta in the proceedings under the Guardians and Wards act, 1890 ('the Act of 1890') rejecting an application moved by the petitioner-father under Order VII, Rule 11 of the Code of Civil procedure and rejecting his contention that the Court at Merta has no jurisdiction to deal with the matter because the minor son of the parties, custody of whose person is in question, is living with his father at Jodhpur.

(2.) A brief reference to the background facts would suffice. The non-petitioner (hereinafter also referred to as 'the mother') has filed the aforesaid petition under Section 10 of the Act of 1890 stating the facts about her marriage with the petitioner (hereinafter also referred to as 'the father') on 3-6-2001 and out of this wedlock, the child master Durgesh having born on 28-9-2004. While stating various facts and incidents when she was compelled to leave or was forcibly removed from the matrimonial house and was harassed by the petitioner and his family, the mother has ultimately referred to the incidents of 17-6-2006 and 18-6-2006 when, according to her, the child Master durgesh was removed from her custody and under the compelling circumstances she was taken by her father to Merta. Narration of such facts and aspects is not necessary for the purpose of the present petition involving only the question of jurisdiction; however relevant aspects of the matter are that at the time of filing of the aforesaid petition, the child was about 13/4 years of age and the mother, residing at Merta, submitted in her application that Master Durgesh was in jodhpur since 18-8-2006. While stating that the child was of tender age, was not even capable of speaking properly and could be harmed by the father and his parents, the mother prayed for guardianship of the person of minor Durgesh.

(3.) THE father (present petitioner) has filed a reply, inter alia, with the submissions that the mother was not living with him for his having contacted incurable disease and being required to remain under rest as per the medical advice. It has been averred that the minor Master Durgesh was living with his grandfather and father quite comfortably and it is in his welfare to live with them only. It has also been alleged that the mother and her parents are not in a position to take care of the child.