BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
(Reserved on 20.07.2017)
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
TR.CMP(MD)No.235 of 2015
MP(MD)No.1 of 2015
P.Muthulakshmi … Petitioner
1)A.Saravana Vairava Sundar
3)P.Sivakumar … Respondents
Petition filed under Section 24 of the Civil Procedure Code, to
withdraw and transfer the case in GWOP.No.2 of 2013 on the file of the
Principal District Court, Dindigul, to the Principal District Court,
For Petitioner : Mr.A.K.Manickam
^For R1 : Mr.N.Anantha Padmanaban
For R2 R3 : Mr.V.Sasikumar
This Transfer Civil Miscellaneous Petition has been filed to withdraw
and transfer the case in GWOP.No.2 of 2013 on the file of the Principal
District Court, Dindigul, to the Principal District Court, Sivagangai.
2.Learned counsel for the petitioner would submit that the 1st
respondent is son-in-law of the petitioner and respondents 2 and 3 are the
sons of the petitioner who are arrayed as respondents 1 and 2 in GWOP. The
1st respondent has filed GWOP.No.2 of 2013 on the file of Principal District
Court, Dindigul, to appoint him as guardian and entrust the minor S.Thiyanesh
Arunachalam to him.
3.It is further submitted that marriage between the 1st respondent and
petitioner’s daughter namely, Bharathi was solemnized on 14.09.2008 at
Sivagangai and out of the wedlock, a male child was born on 13.07.2009.
Thereafter, the said Bharathi committed suicide by self-hanging on 14.05.2012
due to dowry harassment. RDO enquiry also reveals that the daughter of the
petitioner committed suicide due to dowry demand and accordingly, criminal
proceedings were initiated against the 1st respondent for the offences under
Section 498-A, 304-B, 406 IPC and Section 4 of Dowry Prohibition Act.
4.Learned counsel for the petitioner further contended that after the
death of her daughter Bharathi, the petitioner brought the minor child to
Sivagangai and the child is now studying II Standard at Sri Ramana Vikass
School, Edaya Melur, Sivagangai District. Since the minor child was brought
to Sivagangai, it is contended that the 1st respondent ought to have filed
GWOP before the competent Court at Sivagangai as per Section 9(1) of the
Guardians and Wards Act, 1890 and the GWOP filed before the Principal
District Court, Dindigul, is not maintainable.
5.It is also contended that the petitioner being an aged lady, finds it
difficult to travel to Dindigul to attend the hearings of GWOP and further
there was a threat from the 1st respondent and his family members to the
petitioner and her sons and therefore, on 17.04.2015, a complaint was lodged
before the Dindigul Town Police Station which has been given CSR.No.170 of
2015. In these circumstances, learned counsel for the petitioner prays this
Court to allow this petition for transfer.
6.In support of his contention, learned counsel for the petitioner
relied on the decisions in C.Narasaraju vs. S.Ramesh reported in 2012 (2) CTC
717, Ruchi Majoo vs. Sanjeev Majoo(Civil Appeal No.4435 of 2011 dated
7.Learned counsel for the 1st respondent contended that the suicide
committed by Bharathi/wife of the 1st respondent is on her own will and
volition in her parents house and the 1st respondent has no role in it.
After the demise of the wife, when the minor child S.Thiyanesh Arunachalam
was under the care and custody of the 1st respondent/father, the elder
brother of the deceased Bharathi who was Inspector of Police at that time,
got custody of the minor child forcibly with the help of department officials
and in fact, the said forcible custody was taken without the knowledge of the
revision petitioner. Despite repeated requests, the child was not handed
over to the 1st respondent/natural guardian. Hence, the 1st respondent filed
the above said GWOP for custody of the child.
8.Learned counsel for the 1st respondent further contended that
temporary residence of minors under compulsion or force of circumstances
cannot be regarded as their ordinary place of residence for the purpose of
determination of jurisdiction of the Court and therefore, GWOP.No.2 of 2013
filed by the 1st respondent before the Principal District Court, Dindigul, is
maintainable and hence, this transfer petition to transfer the GWOP to the
Principal District Court, Sivagangai, is liable to be dismissed.
9.In support of the above contention, learned counsel for the 1st
respondent relied on the following judgments:-
10.Heard the learned counsel for the petitioner as well as the
respondents and perused the materials available on record.
11.Perusal of records shows after the mother committed suicide by self-
hanging, the minor child was brought by the maternal relations of the child
to Sivagangai and it is stated that the child is now studying II Standard at
Sri Ramana Vikass School, Edaya Melur, Sivagangai District. It is pertinent
to note that pursuant to the complaint of dowry harassment given by the
brother of the deceased Bharathi against the 1st respondent, the 1st
respondent who is the husband of the deceased Bharathi, has been charge
sheeted for the offences under Section 498-A, 304-B, 406 IPC and Section 4 of
Dowry Prohibition Act and in the charge sheet, the 1st respondent has been
arrayed as first accused and criminal proceedings are pending against the 1st
respondent. In such situation, the word ‘ordinary residence’ as per Section
9(1) of the Guardians and Wards Act, 1890 which means the minor’s ‘actual
residence, should be construed as the place of the revision petitioner.
Further, since the minor child is studying in a school at Sivagangai, in the
interest and welfare of the minor child, it will be appropriate to transfer
GWOP from Dindigul to Sivagangai. Thus, the judgments relied on by the
learned counsel for the petitioner are applicable to the present case and
judgments cited by the 1st respondent are inapposite to the facts of this
case, as the plea of forcible custody from the 1st respondent is not
12.In the result, GWOP.No.2 of 2013 on the file of the Principal
District Court, Dindigul, is ordered to be transferred to the Principal
District Court, Sivagangai, within a period of four weeks from the date of
receipt of a copy of this order.
This Transfer Civil Miscellaneous Petition is allowed accordingly. No
costs. Consequently, connected miscellaneous petition is closed.
1)The Principal District Judge,
2)The Principal District Judge,