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Sri Soumendra Malik vs Smt. Tumpa Malik on 21 December, 2017

IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side

Present :- Hon’ble Mr. Justice I.P.Mukerji
Hon’ble Mr. Justice Protik Prakash Banerjee

FMA No. 3398 of 2014
With
CAN 10008 of 2014

Sri Soumendra Malik
v.
Smt. Tumpa Malik

For the appellant :- Mr. Debjit Mukherjee
Ms. S. Chatterjee
Ms. D. Ganguly
….Advocates

For the Respondents :- Ms. Shanti Das
Mr. Subha Dey
…Advocates

Judgement On :- 21.12.2017

I.P. MUKERJI, J.

This case is about the court in which an application for custody of the

child under Section 25 of the Guardians and Wards Act, 1890 is to be

considered.

The minor, Ishita is very young, about nine years of age.

The parties were married on 13th May, 2007 according to Hindu rites. On

8th May, 2008 the child was born to them. On 12th July, 2010 the

respondent wife left the matrimonial house with the daughter to stay

with her parents. Since April, 2011 the wife has been staying at 68/1,

Netaji Colony, Kolkata-90, separated from her husband in her aunt’s

house. The minor is in her custody, within the jurisdiction of the District

Judge 24 Parganas (N). From 2012 the minor is going to a local school.

The learned District Judge Hooghly on 5th August, 2014 allowed the

application of the wife challenging the jurisdiction of the Hooghly court.

The application was made by the appellant/husband under Section 25

read with Section 9 of the said Act before the learned District Judge,
Hooghly. The mother, Tumpa Malik took out a demurrer application

under Section 4 (5) (b) (ii) of the said Act, saying that the Hooghly court

had no jurisdiction to entertain the application, as the child did not

ordinarily reside in any place within its jurisdiction and that the child

resided in Baranagar within the jurisdiction of the District Judge 24

Parganas (N). The petition should be returned to the appellant/petitioner

for presenting it in the proper court.

On behalf of the husband Mr. Mukherjee argued that a place where a

child ordinarily resided connoted his place of permanent residence. Since

the father’s home was in Hooghly and the child lived there till 2012 it

could be taken to be the permanent residence of the child. He also cited

an example of a child being moved from place to place by the mother.

That would not imply that the application under the said Act would be

transferred from one court to another in harmony with the movement of

the child. That could not be the intention of the legislature, he added.

The place where the child ordinarily resided according to Mr. Mukherjee

would denote the place of residence of permanent residence of the family

to which the child belonged.

Some definitions in the Guardians and Wards Act, 1890 are very

important.

The first is Section 4 (5) (b) (ii). It is set out herein below:-

“4(5) “the court” means–

(b) Where a guardian has been appointed or declared in pursuance
of any such application–

(ii) In any matter relating to the person of the ward the District court
having jurisdiction in the place where the ward for the time being
ordinarily resides.”

Section 25 of the Guardians and Wards Act, 1890 is also set out

hereunder.

“25. Title of guardian to custody of ward—(1) If a ward leaves or is
removed from the custody of a guardian of his person, the court, if it is of
opinion that it will be for the welfare of the ward to return to the custody of
his guardian, may make an order for his return and for the purpose of
enforcing the order may cause the ward to be arrested and to be delivered
into the custody of the guardian.

(2) For the purpose of arresting the ward, the court may exercise the power
conferred on a Magistrate of the first class by Section 100 of the Code of
Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward against the will of his guardian with a person
who is not his guardian does not of itself terminate the guardianship.”

The question before us is whether this decision was correct? Whether the

District Court at Hooghly, 24 Parganas (N) had the jurisdiction to hear

the application of the appellant under Section 25 read with Section 9 of

the Guardians and Wards Act, 1890?

What is the meaning to be ascribed to the phrase “ordinary residence of a

child?”

It has to be appreciated that the role of the court does not end with the

appointment of a guardian over a minor. Nor does the responsibility of

the court cease with the appointment of a guardian. The very nature of

the provisions of the Guardians and Wards Act, 1890 tend to show that

the court has to supervise the work of the guardian, not to remove its

watchful eyes from the minor, ensure that the ward’s welfare is being

looked after by the guardian, his or her property is being taken care of by

him and so on. Therefore, this court cannot be far removed from the

minor. The ward has to be accessible to the court as much as the court

should be accessible to the guardian and any other interested person in

his or her welfare. Hence, the provision that only the court within the

jurisdiction of which the minor ordinarily resides has the jurisdiction to

entertain proceedings under the said Act.

A division bench of the Allahabad High Court in the case of Jagdish

Chandra Gupta v. Dr. Ku. Vimla Gupta reported in AIR 2003

Allahabad 317 has tried to identify the ordinary residence of a minor

adopting some very relevant factors. The minor must be “dwelling in a

place for some continuous time”. The residence has to be something

more than “temporary residence”. “The question of residence is largely a

question of intention.” One observation in that judgement is very relevant

to our case.

“19…………….However, in case of the minor no question of intention can
arise but the court will have to take into consideration all the relevant facts
as brought on record to determine the actual place of residence looking the
attendant circumstances. The past abode for however a long period it may
be, can cease to be a place where the minor can be said to be ordinarily
residing depending upon the facts and circumstances of each case and the
nature and duration of the residence. The mere fact that a minor is found
actually residing at a place at the time of the application is made by itself
is not sufficient to determine the jurisdiction.”

The Supreme Court in the similar case of Ruchi Majoo v. Sanjeev

Majoo reported in (2011) 6 SCC 479 observed that the place where the

child ordinarily resided was a question of fact. The child was ordinarily

residing where the mother was residing. She had been studying in a

school there for nearly three years.

The parties were married on 13th May, 2007.

It is no doubt true that the minor was born in 2008 in her father’s house

is in Hooghly. From 12th July, 2010 the husband and wife are living

separately. Since August, 2011 the child has been living at 68/1, Netaji

Colony, P.S.-Baranagar, Kolkata-90, in the residence of his mother’s

maternal aunt (Masi). The child goes to a local school there regularly, as

we have already observed.

Therefore, the ordinary place of residence of a child depends on the

above factors amongst others. The appellant has not been able to
demonstrate before this court that the ordinary place of residence of the

minor is not at Baranagar.

It is quite plain that the residence of the minor at Baranagar cannot be

called temporary and it is continuous from 2011. It has the touch of

permanence. In those circumstances, the court to which the application

lay under Section 25 read with Section 9 of the Guardians and Wards

Act, 1890 was the District Court at Hooghly 24 Parganas (N).

I feel that the learned District Judge has rightly refused to exercise her

jurisdiction, as in her opinion, the ordinary residence of the child was in

24 Parganas (N). I concur with this view. The court at Hooghly had no

jurisdiction to entertain the application.

We add that even if an application under Section 25 read with Section 9

of the said Act was made before a particular District Court, it will use

jurisdiction the moment the minor’s ordinary place of residence changes.

The district Court having jurisdiction over this changed ordinary

residence will now exercise jurisdiction.

This appeal is dismissed.

No order as to costs.

(I.P. MUKERJI, J)

PROTIK PRAKASH BANERJEE, J.

When learned counsel try their best to render an otherwise simple

proposition into something very troublesome, it is only then that the

glorious simplicity of the Opinion of my Learned Brother can be best

appreciated. While agreeing with most of what my learned Brother has

held I would like to add a few paragraphs, which throws into sharp relief

the actual dispute between the parties.

The entire case revolves around a short compass as to what would

be the meaning which the Court is to ascribe to the words in Section 25

of the Guardians Wardss Act, 1890, “Title of guardian to custody of

ward- (1) If a ward leaves or is removed from the custody of a guardian of

his person, the Court, if it is of opinion that it will be for the welfare of

the ward to return to the custody of his guardian, may make an order for

his return and for the purpose of enforcing the order may cause the ward

to be arrested and to be delivered into the custody of the guardian.”

Both the learned Advocates tried to impress upon me that the

magic words are in reality those contained in a few sections of the

Guardians and Wards Act, 1890 pertaining to jurisdiction of the District

Court. They both draw inspiration from firstly Section 4 Sub-Section 5

and then Section 9 read with Section 4 of the Act of 1890.

Since both the parties have placed great emphasis on these

provisions, even if according to me the true construction of Section 25 of

the Act, 1890 is to be discovered from the context of that Section alone I

find myself reluctantly forced to deal with those Sections to which

learned Counsel have drawn my attention.

Section 4 (4) read as follows: –

“4. Definitions.-In this Act, unless there is something repugnant in

the subject or context.-

(1) “minor” means a person who, under the provisions of the Indian

Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his

majority;

(2) “guardian” means a person having the care of the person of a

minor or his property, or of both his person and property;

(3) “ward” means a minor for whose person or property, or both, there

is a guardian;

(4) “District Court” has the meaning assigned to that expression in the

Code of Civil Procedure (14 of 1882), and includes a High Court in the

exercise of its ordinary original civil jurisdiction;

(5) “the Court” means-

(a) the District Court having jurisdiction to entertain an application

under this Act for an order appointing or declaring a person to be a

guardian; or

(b) where a guardian has been appointed or declared in pursuance of

any such application-

(i) the Court which, or the Court of the officer who, appointed or

declared the guardian or is under this Act deemed to have appointed or

declared the guardian; or

(ii) in any matter relating to the person of the ward the District Court

having jurisdiction in the place where the ward for the time being

ordinarily resides; or”

Section 9 reads 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.

(2) If the application is with respect to the guardianship of the

property of the minor, it may be made either to the District Court having

jurisdiction in the place where the minor ordinarily resides or to a District

Court having jurisdiction in the place where the minor ordinarily resides

or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of

a minor is made to a District Court other than that having jurisdiction in
the place where the minor ordinarily resides, the Court may return the

application if in its opinion the application would be disposed of more

justly or conveniently by any other District Court having jurisdiction.”

It will appear that the provisions indicated by the parties as above are

subtly different from the case where a ward has been removed from the

lawful custody of his or her guardian. I believe that the parties have

been crying themselves hoarse on the altar of Section 4(5)(b)(ii) simply

because the language of the said Sub-Section indicates that the District

Court which would have jurisdiction in any matter relating to the person

of the ward would be the District Court having jurisdiction over the place

where the ward for the time being ordinarily resides.

I can see where and how this would appeal to the respondent/mother

since it is an admitted position that the mother had removed the child

from the custody of husband/father who admittedly is the natural

Guardian way back on July 12, 2010 and has not returned the minor

child (daughter) to the husband’s custody from where the minor had

been removed; this has become all the more important since the place

where the parents and the ward ordinarily resided together was at a

place which was within the jurisdiction of the Learned District Judge at

Hooghly in Chinsurah and not the Court of the Learned District Judge at

24 Parganas North, who has jurisdiction over the place to which the

minor had been removed; however, the emphasis that the

mother/respondent has placed on the words “District Court having

jurisdiction in the place where the ward for the time being ordinarily

resides” is a double-edged dagger.

This is because something more than mere fortuitous stay or spending of

a few nights is required to transform a halt for a night or a few nights

into a place where the ward ordinarily resides. Staying in a hotel room

does not make the person who resides at such place suddenly harbour

an intention of permanent residence. There is a requirement that in
order to attract the jurisdiction of a place on the ground of “ordinary

residence”there should be an intention, formed bona fide on the basis of

several objective criteria, to reside there with some degree of

permanence.

In fact, the judgments are not consistent whether in this country or

elsewhere on this aspect of the matter. While the test of permanent

intention to reside has not always been the case in India, the Courts

have not even assigned a unique or unchanging meaning to the words

“ordinarily resident”.

The cases of “Ruchi Majoo Vs. Sanjeev Majoo reported in (2011)6

Supreme Court Cases 479” inter alia at Paragraph 60 as alsothe

judgement reported in the case of “Jagdish Chandra Gupta Vs.

Dr.KumariVimla Gupta reported in AIR 2003 Allahabad 317” inter alia

at Paragraphs 19, 20 and 21 would clearly indicate (i) “ordinarily resides”

has to be something more than temporary residence(ii) the place where

the minor generally resides and would be expected to reside but for

special circumstances (iii) is not a place which the person residing as a

permanent resident has left for good with no intention to come back but

has started living in some other place (iv) in addition for a minor, actual

residence at or about the time of filing of the application cannot by itself

be a reason to determine the ordinary place of residence.

Very obviously, this last criterion has been formulated knowing very well

that a minor has very little control over his or her life, and usually the

wishes of a minor and its welfare, though given such importance by a

Court of Law, are ignored by whosoever has actual physical custody and

control of the minor/ward to the extent that where a particular minor or

ward is actually residing is not even important where the allegation

against one of the parents is that he or she has removed the ward from

the custody of a lawful guardian. This is only natural since no person

can be allowed to benefit from his or her own fault. If a person could be
allowed to benefit from removing the person of a minor/ward from a

jurisdiction to another to force the lawful guardian to chase the

wrongdoing parent or person from one jurisdiction to another, this would

have been the result. This is fact, appears to be the only rationale

behind the rule that actual physical residence is not the criterion

through which jurisdiction is attracted in a case which is framed under

Section 25 of the Guardians and Wards Act, 1890 and provided that the

order sought by the guardian is for the benefit of the minor and for its

paramount welfare.

Therefore, the learned counsel for the mother has tried to find out the

residence for the time being of the minor to attract the jurisdiction of the

particular learned District Court within whose jurisdiction either the

minor had been living residing prior to his removal on and from July,

2010 (according to Mr. Debjit Mukherjee) or the place to which the minor

had been removed by the mother from the custody of the natural

Guardian father after July, 2010. This shows that both the parties have

been trying to rely upon the actual place of residence or the place at

which either the father or the mother would want to keep the ward who

is a minor. Again if the test provided under Section 9 of the Act of 1890

is applied it presupposes that in case where the person of the minor is

involved the application would be made to the District Court having

jurisdiction in the place where the minor ordinarily resides; but in case

where the Guardianship of the property of the minor is applied for it can

be made either to the District Court having jurisdiction in the place

where the minor ordinarily resides or where minor has property. It shall

thus appear that there is no stringency regarding the place of residence

nor any requirement to identify where the minor is deemed to ordinarily

reside where only the Guardianship of the property of the minor is

involved.

Since the entire Act of 1890 must be read as a whole and since each of

the words used in the statute must be given meaning and since further

the same words used in the same sense must be given the same

meaning, and cannot be given widely different meaning and since the

words used in the instant case in Section 25 of the Act of 1890 are

perfectly capable of being understood without ambiguity I find that the

behaviour of the parties to the present case, to identify the court of the

learned District Judge having jurisdiction over the place where the ward

ordinarily resides, in a case which involves Section 25, and not any other

section, does more violence to the plain and literal meaning of the

statutory provision aforesaid, and does both logic and the purpose for

engrafting Section 25 a disservice.

To my mind the rest of the provisions of the Act of 1890 speak of where

an application is to be made over appointment of a Guardian of the Ward

or of his property or where Guardian had already been appointed where

such application is to be made but Section 25 is an exceptional provision

for giving relief to a Guardian from whose custody the ward is removed or

the ward leaves provided that the order for return to the custody of the

lawful guardian would be for the welfare of the minor. Therefore, Section

25 represents an exception to the general rule as to which District Court

has jurisdiction over a case of return of a ward to the custody of the

Guardian if he leaves or his removed from such custody. Since it is an

exception, the normal rule of tracing jurisdiction to the ordinary place of

residence on the basis of the above parameters as in Sections 4(5)(b)(ii) or

Section 9 of the Act of 1890,is not to be used in case of Section 25 of the

Act of 1890. This is because as indicated by the above persuasive

precedents, the ordinary place of residence requires an immediate and

clear intention to reside with a decree of permanence which is not merely

a casual night’s stay and impulsive residence for a while.
In cases covered under Section 25, the intention of the legislature is as I

could gather is undoing the mischief of such removal of the ward from

the custody of the lawful guardian, provided of course, that the return to

the custody of the guardian is to the benefit of the minor. Therefore,

provided that the guardian applies for such return to his custody within

a reasonable time I hold that the District Court having jurisdiction must

always be the District Court which exercises jurisdiction over the place

where the ward has been staying before being removed from the custody

of the guardian provided always that such application is made by the

guardian with reasonable alacrity and any delay in making the

application explained to the satisfaction of the learned District Judge in

question.

In the instant case as stated by my learned Brother and as appears from

the records, removal from the custody of the lawful and natural guardian

happened in July 12, 2010, but the application for the return of the

ward, was not made until June, 2012 when already the ward had

become settled as a student in the school within the jurisdiction of the

learned District Judge at District 24 Parganas North. It is therefore clear

that the learned District Judge to whose jurisdiction the child had been

removed continues to be the learned District Judge for more than one

and half years and is still continuing as the learned District Judge and

the husband/father clearly had no anxiety nor urgency in applying for

return of the ward. So, while the normal rule is to ascertain where the

ward ordinarily resides at the time when the application is filed, in case

of an application under Section 25 of the Act of 1890 the special rule is

to apply before the Court of the Learned District Judge within whose

jurisdiction the Ward was ordinarily residing prior to his being removed

from or leaving the custody of the said lawful guardian. Even this

however, is subject to an exception, being where a lawful guardian has

not moved with sufficient speed or lack of delay or laches to attract the
jurisdiction of the Learned District Judge where the ward had been

staying with him prior to the ward’s being removed from his custody, and

where the passage of time shows that there is no logical explanation for

such delay. The present case is one such example, where the lawful

guardian from his own conduct is not in a position to show why he

delayed more than one and a half years before even applying to the

former jurisdiction, that is to say, the Court of the Learned District

Judge at Hooghly in Chinsurah, from which the ward had been removed

and where no satisfactory explanation is given for such delay.

As such I have no hesitation in holding at one with my Learned Brother,

that in the instant case the lack of any explanation for the delay in

moving the proper forum for an order for return of the ward to the

father’s custody, shows that the intention of the parties has always been

that the ward should continue her studies in the home found for her by

her mother, within the place over which the Learned District Judge at

District 24 Parganas North has jurisdiction, rather than the Learned

District Judge at Hooghly in Chinsurah and it is the place which the

parties, including the lawful guardian father, have allowed to become the

place where the ward ordinarily resides, and the element of immediate

relief which usually accompanies any application under Section 25 of the

Act of 1890 is clearly absent in the present case.

The same matter can be looked from a different angle. Where the

husband/natural Guardian Acts with urgency to get back a child

removed from his lawful custody, the place where he resided last, before

the child was unlawfully removed from his custody, is the place on the

basis of which jurisdiction would be attracted; where the

husband/father/natural Guardian does not show alacrity it would be

deemed that there is no cause to invoke the extraordinary jurisdiction

under Section 25. In all other cases the test of ordinary residence would

apply. I thus hold that the application of the Wife/Respondent seeking a
direction on the appellant/husband to take back the petition under

Section 25 of the Act of 1890 with a further direction on the husband to

file it before the Learned District Judge, District 24 Parganas North, was

rightly allowed and I further hold that the husband’s appeal is without

any merit and is thus dismissed.

However, in the facts and circumstances of the case, the parties shall

bear their own costs. The records are directed to be sent down to the

Court of the Learned District Judge, Hooghly, at Chinsurah, as part of

the records of Act VIII Case No. 1 of 2012 for taking steps in accordance

with law in the light of our judgement and the consequential steps of

filing the matter afresh before the Appropriate Court.

Certified photocopy of this Judgment and order, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Protik Prakash Banerjee, J.)

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