Subbaiah vs Minor.Dinesh on 31 July, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 31.07.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

TR.C.M.P(MD)No.98 of 2017
and C.M.P.(MD)No.2388 of 2017

1.Subbaiah
2.Alagar
3.Chinnammal … Petitioners/Respondents

Vs.

1.Minor.Dinesh
2.Minor Anusiya Devi
rep.through their Grand parents,
Thangam @ Kattu Raja,
S/o.Chinnathambiya Pillai
Tmt.Pulatchiyar Ammal
W/o.Thangam @ Kattu Raja,
residing at Seyyalur Village,
Melapidavur Post,
Manamadurai Taluk,
Sivagangai District.

.. Respondents/Petitioners

PRAYER:- This transfer Civil Miscellaneous Petition filed under Section 24 of
Civil Procedure Code to withdraw the petition in G.W.O.P.No.25 of 2014 on the
file of the District court, Sivaganga and transfer the same to the Principal
District Court, Dindigul.

(deletion and insertion of case number is amended vide Court order dated
27.06.2017 made in CMP(MD).No.5509 of 2017 in Tr.CMP(MD).No.98/2017)

!For Petitioners : Mr.A.Arul Jenifer

^For Respondents : Mr.R.Rajaraman

:ORDER

This transfer Civil Miscellaneous Petition filed under Section 24
of Civil Procedure Code to withdraw the petition in G.W.O.P.No.25 of 2014 on
the file of the District court, Sivaganga and transfer the same to the
Principal District Court, Dindigul.

2. The first petitioner is the father of the minor children, who
are arrayed as the respondents herein and the second and the third
petitioners are the grand patents of the minor respondents herein, and the
minor respondents represented through their maternal grandparents in
G.W.O.P.No.25 of 2014 pending on the file of the District Court,
Sivaganga, Sivagangai District.

3. The case of the petitioners is that the marriage between the
first petitioner and the daughter of the representing respondents was
solemnized on 13.11.2009 and out of their wedlock, they have a daughter and
son. While so, due to the difference of opinion between the first
petitioner and his wife, the mother of the minor children died on 12.04.2014.
Thereafter, the representing respondents claimed the custody of the minor
children through G.W.O.P.25 of 2014 pending on the file of the District
Court, Sivaganga, Sivagangai District by impleading the petitioners herein
as well as the minor children and also sought a declaration declaring them as
natural guardian. The petitioners appeared through their counsel and filed
their reply also. The minors for whom the custody was claimed by the
representing respondents is now with the natural guardian, namely, the first
petitioner herein and they are being educated by him.

4. The further case of the petitioner is that the first
petitioner is having some extent of agricultural field and doing cultivation
activities over there to meet out the requirements of the children. It is
also the case of the petitioners that the representing respondents, who
claims custody of the children are age old and they find it difficult to meet
out even their day today needs. It is also stated that the District Court,
Sivagangai is completely devoid of jurisdiction to entertain the present
G.W.O.P. as per Section 9 of the Guardian and Wards Act, 1890 which clearly
emphasise that the territorial jurisdiction for claiming custody of the
children shall vest with the jurisdiction where the minor children ordinarily
resides.

5. Further, the petitioners submit that they are under the threat by
the respondents because a compliant has been lodged against them as if the
mother of the minor children died due to the petitioners herein and a case
has been registered in Cr.No.96 of 2014 for the charge of dowry death. Since
the petitioners have life threat to attend the District Court at Sivaganga,
they pray for the transfer of the above application to the Principal
District Court, Dindigul.

6. The case of the respondents is that in the earlier round of
litigation, H.M.O.P.(MD).No.114 of 2011 was filed before the Sub-Court,
Dindigul, wherein, at page No.15, the first petitioner in his deposition
denied the parentage of the second minor daughter and due to the attitude of
the petitioners, the mother of the minor children lost her life and a
criminal case in Cr.No.96 of 2014 has been registered against the respondents
for the charges of dowry death and therefore, prays for rejection of the
transfer civil miscellaneous petition.

7. Heard the learned counsel for the petitioners and the learned
counsel for the respondents.

8. Admittedly, since the death of the mother of the minor
children, namely from 2014 onwards, they are under the care and custody of
the natural guardian, namely, the petitioners herein. When the matter was
heard by me on 26.07.2017, this Court directed the parties to be present with
the minor children and the matter was adjourned to 31.07.2017 and today, when
the matter was posted before me in the Chamber, at the request of the
respondents, the children were given to the respondents for some time to have
a word with the children, but within a few minutes, they screamed and refused
to go with the respondents which might be due to the separation of the minor
children since 2014. In any event, the only question before me to find out
whether the minor children resides with the natural guardian or with the
respondents herein. In this connection, it is useful to refer the judgment
reported in 2016 (3) MWN (Civil) 504, A.Raisa Nasrin Vs. A.S.Bilal, wherein,
in paragraph No.9 it has been held as follows:-

?9. The Hon’ble Supreme Court of India in paragraph No.24 has stated
that whether the minor is ordinarily residing at a given place is primarily a
question of intention which in turn is a question of fact. It may at best be
a mixed question of law and fact, but unless the jurisdictional facts are
admitted it can never be a pure question of law, capable of being answered
without an enquiry into the factual aspects of the controversy. The factum in
the present case on hand is very clear that the the petitioner and the
respondent are living separately and the female child aged about 6 years is
in the custody of the petitioner and further she is studying 1st Standard in
ILM Public School at Ilayangudi, Sivagangai District.?

9. Apart from the above, even as per Section 9 of the Act, it
is stated as follows:-

?9. Court having jurisdiction to entertain application .-(1)If the
application is with respect to the guardianship of the person of the minor,
it shall be made to the District Court having jurisdiction in the place where
the minor ordinarily resides.?

10. In the light of the afore-said judgement coupled with the
Section 9 of the Act, it is clear that normally where the minor children are
residing would be the place of jurisdiction for entertaining the application
in the matter of guardian and wards act for claiming the custody of the minor
children and therefore, I do not find any hesitation to transfer and to
withdraw the petition pending in G.W.O.P.No.25 of 2014 on the file of the
District court, Sivaganga to transfer the Principal District Court, Dindigul.

11. At this juncture, the learned counsel appearing for the
petitioners would submit that G.W.O.P.No.25 of 2014 on the file of the
District court, Sivaganga is transferred and renumbered as G.W.O.P.No.1 of
2017 on the file of the Family Court, Sivaganga

12. Considering the facts and circumstances of the case, this
petition is allowed on the following terms:-

(i) The learned Judge, District court, Sivaganga is directed to
transfer all the papers relating to G.W.O.P.No.1 of 2017 (being old
No.G.W.O.P.No.25 of 2014) to the Principal District Court, Dindigul, within
a period of two weeks from the date of receipt of a copy of this order.

(ii) On receipt of the same, the learned Principal District Court,
Dindigul, is directed to dispose of the case in G.W.O.P.No.1 of 2017 (being
old No.G.W.O.P.No.25 of 2014), on merits and in accordance with law, as
expeditiously as possible, preferably, within a period of six months,
thereafter.

No costs. Consequently, connected miscellaneous petition is closed.

To,

(I)The District court, Sivaganga
(II)The Principal District Court, Dindigul..

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