Smt. Preeti Dubey @ Bhumi vs Arvind Kumar Dubey on 21 November, 2017

THE HIGH COURT OF MADHYA PRADESH
CR-1-2016

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(SMT. PREETI DUBEY @ BHUMI Vs ARVIND KUMAR DUBEY)

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Gwalior, Dated : 21-11-2017
Shri D.D.Bansal, learned counsel for the petitioner.
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Shri H.K.Shukla, learned counsel for the respondent.

Petitioner has filed this civil revision under Section 115 of the
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Code of Civil Procedure, 1908 being aggrieved by order dated
26.9.2015 passed by the Additional Principal Judge of Family Court,
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Gwalior, in case No.14-A/2012 under the provisions of Guardian and
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Wards Act (for brevity “the Act”) dismissing the application moved
by the present petitioner for terminating the proceedings at Gwalior
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under the Act inasmuch as according to the petitioner such jurisdiction
vests in the Court at Mehgaon or at the Court at Bhind within whose
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territorial jurisdiction Mehgaon is situated.
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It is petitioner’s contention that petitioner’s daughter was about
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4 years of age when she was taken in custody from her husband on
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5.5.2012. Her husband had filed an application under the provisions of
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the Act in July, 2012. Therefore, in terms of the provisions contained
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in Section 9 of the Act, territorial jurisdiction to hear and decide such
application rests in the District Court having jurisdiction over
Mehgaon inasmuch as Section 9(1) of the Act provides that 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.

Learned counsel for the petitioner has placed reliance on the
judgment of the Karnataka High Court in the case of K.C.Sashidhar
Vs. Smt. Roopa as reported in AIR 1993 Karnataka 120 wherein the
High Court of Karnataka relied on the judgment of the Supreme Court
in the case of Jeewanti v. Kishan, (1982) 1 Kant LJ (SN) 13, Item
No.35, wherein the Supreme Court has defined the words ordinarily
resides as under :-

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“That the word “resides” must mean the actual place of

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residence and not a legal or constructive residence, it certainly

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did not connote the place of origin. It was the actual residence of

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the wife at the commencement of the proceedings that had to be
considered, for jurisdiction.”

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The Karnataka High Court in the case of K.C.Sashidhar
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(supra) has held that since the child is of tender age, the legal
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guardian would be the mother and the place of her residence on the
date of the presentation of the petition is the place where it is to be
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construed as the minor ordinarily resided and as such the finding
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arrived at by the Court below does not suffer from any legal
infirmities. Learned counsel for the petitioner submits that in view of
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such decision of the Karnataka High Court since admittedly the first
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daughter of the petitioner is residing with the petitioner at Mehgaon
Distt. Bhind, Family Court at Gwalior has no jurisdiction to entertain
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such application. He further submits that in fact even if the documents
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filed by the respondent, namely the order passed by the Court of
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Principal Judge, Family Court, Bhind, in case No.109/14 is taken into
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consideration, then in that case also the application under Section 125
of Cr.P.C. was returned back to the applicant (present petitioner) for
filing it before the Court at Mehgaon as there is Judicial Magistrate
First Class at Mehgaon having jurisdiction to entertain and receive
application under Section 125 of Cr.P.C.

On the other hand, learned counsel for the respondent submits
that in fact the girl Anshi was studying at Sanskar Public School
before she was removed from the custody of the respondent/father on
5.5.2012 with the help of police authorities. He submits that in the
year 2015 he has filed a case for kidnapping against such police
officials and father of the petitioner. He further submits that since the
girl was removed from the custody of respondent- Arvind Kumar

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Dubey from Gwalior, therefore, Gwalior Court will have jurisdiction

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to hear and decide such case. He has placed reliance on the decision of

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the Allahabad High Court in the case of Navin Singh v. Smt. Jyoti

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Parashar as reported in AIR 2004 Allahabad 441 wherein
application for custody of child was filed by mother. Child was
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ordinarily resident of place M and the application was filed by mother
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at place A. Applicant was disgusted with atmosphere at husband’s
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house at place M, and therefore, came with her child to place A to live
with her parents. The child was thus living with her mother when he
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was taken away by husband forcibly, therefore, application at place A
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was held to be maintainable. Thus, placing reliance on such decision
of Allahabad High Court and also placing reliance on the decision of
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Additional Principal Judge of Family Court, learned counsel for the
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respondent submits that ordinary place of residence of the child is not
at Bhind and Mehgaon and since the petitioner had removed the minor
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child from the custody of the applicant/respondent from Gwalior,
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therefore, the Additional Principal Judge, Family Court has rightly
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dismissed the application on the issue raised by the present petitioner
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as to the maintainability of the application under Section 25 of the
Act.

The facts of the case are that two daughters have been born out
of the wedlock; one on 3.7.2008 and another on 27.1.2012. It is an
admitted position that petitioner had to leave her matrimonial home
under some extraneous circumstances which is not the subject matter
of this litigation. Thereafter she had obtained the custody of her
daughter born on 3.7.2008 on 5.5.2012 with the help of police
officials. Thereafter, admittedly this daughter Anshi is staying with
the petitioner at Mehgaon. It is also an admitted position that
respondent/husband had filed an application under the provisions of
the Act in the month of July, 2012 i.e. after Anshi ceased to be in his

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custody in May, 2012. It is also an admitted position that a case has

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been filed against the police officials under the provisions of Sections

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451, 452, 363, 166, 167 and 120-B of IPC read with Section 28 of the

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Juvenile Justice (Care and Protection of Children) Act, 2000. It is also
an admitted fact that no case has been registered by the respondent
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against the present petitioner. In fact, that case which was registered
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in the year 2015 was also registered at the instance of father of the
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respondent and not by the respondent. Therefore, the facts of the case
of Allahabad High Court are distinguishable inasmuch as it is not a
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case that present petitioner had abducted the child from the custody of
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the husband. She had obtained custody of the minor child with the
help of police officials, and therefore, there being a difference in
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abduction/kidnapping vis a vis taking help of the police, no case of
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abduction and kidnapping has been registered against the present
petitioner and it cannot be said that ordinary place of residence of the
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child will be Gwalior where the respondent resides. In fact in the light
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of the law laid down by the Karnataka High Court in the case of
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K.C.Sashidhar (supra) legal guardian of Anshi, who is admittedly a
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girl of tender age, would be her mother who is resident of Mehgaon,
and therefore usual place of residence of the girl Anshi will be
Mehgaon and not Gwalior. This issue has already been decided by the
Supreme Court in the case of Ruchi Majoo Vs. Sanjeev Majoo as
reported in AIR 2011 SC 1952.

Therefore, in terms of the provisions contained in Section 9 of
the Act, the Court having jurisdiction to entertain the application
under the Act will be District Court within whose jurisdiction Courts
at Mehgaon are situated and not the District Court at Gwalior,
therefore, the learned Additional Principal Judge of Family Court has
erred in rejecting the application moved by the present petitioner
raising the dispute as to the territorial jurisdiction of the Family Court

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at Gwalior. This revision has to be allowed and is allowed inasmuch

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as the place of residence of minor as defined under Section 9 (1) of

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the act will have to be treated as Mehgaon where she is residing with

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the mother/petitioner and not at Gwalior as the respondent has tried
his best to make this Court believe. In view of the aforesaid, the civil
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revision is allowed. The impugned order is quashed. However, the
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respondent shall always have the liberty of filing an application before
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the competent Court inasmuch as respondent cannot be made
remediless due to the fate of this civil revision.

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of
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(VIVEK AGARWAL)
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JUDGE
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ms/-

Digitally signed by
MADHU SOODAN
PRASAD
Date: 2017.11.22 18:24:28
+05’30’

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