IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CMPMO No. 91 of 2018
.
Decided on : 19.11.2018
Shri Rajbir Yadav …..Petitioner.
Versus
Smt. Poonam Kumari ….Respondent.
Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner:
For the Respondent:
Mr. Rajesh Kumar Parmar, Advocate.
Ms. Anjana Khan, Advocate.
Sureshwar Thakur, J (oral)
The instant petition stands directed, against, the
impugned order pronounced by the learned Additional Chief Judicial
Magistrate, Nalagarh (Exercising the Power of District Judge, under
Guardian and Wards Act), District Solan, H.P., whereunder, the
interim custody of the minor child namely Shivansh Yadav, was, till
disposal of the main petition, ordered to be handed over to his natural
guardian/respondent herein.
2. Without adverting to the merits of the case, the
paramount fact, rather rests, upon, the anvil qua the petitioner
herein, through casting an application before the learned Court below,
hence therethrough seeking rejection of the plaint or return of the
1
Whether reporters of the local papers may be allowed to see the judgment?
24/11/2018 22:55:57 :::HCHP
2
petition, to the Court holding the jurisdiction. The afore application
was instituted or filed subsequent to the learned trial Court making
the impugned decision upon the afore apposite application.
.
Consequently, the learned trial Court was not enjoined to make any
order thereon, before, its proceeding to make an affirmative decision,
upon, Cr.M.A No. 304/6 of 2017. Conspicuously, dehors, the afore
application standing filed subsequent to the impugned verdict, being
recorded, the factum qua existence of a specific mandate, in Section 9
of the Guardian Wards Act, 1890, provisions whereof stand
extracted hereinafter, whereunder, upon ingredients thereof’ being
satiated, thereupon even the assumption, of, jurisdiction, upon, the
apposite application, whereon the impugned order stood rendered,
hence stood jurisdictionally stained.
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 he 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 a place where
he has property.
(3). If 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
24/11/2018 22:55:57 :::HCHP
3
application would be disposed of more justly or conveniently by
any other District Court having jurisdiction.”
3. The learned trial Judge was hence enjoined to make
.
discernments from the memo of parties qua, whether, the minor
Shivansh Yadav, was, thereat residing or was ordinarily residing,
within, the territorial jurisdiction, of, the Court located at Jhajjar.
Nowat, the memo of parties, further, discloses that the minor Child,
was, residing alongwith the petitioner at the matrimonial home, of,
the respondent herein, and only on 11.11.2017, it stands averred in
the application, qua the respondent herein, being exiled, from her
matrimonial home, and, thereat the custody, of, the minor child
rather being forcibly snatched from her by the petitioner herein. The
afore averment, as, occurs in paragraph 3, of the petition, does prima
facie, discloses qua the minor child at the stage of meteing, of, an
order upon the apposite application, rather ordinarily residing,
within, the territorial jurisdiction, of, the Courts located at Jhajjar.
Consequently, prima facie for jurisdictional disempowerment, the
impugned order is hence quashed and set aside. The matter is
remanded to th learned trial Court concerned, to, after making a
decision, upon, an application, cast under the provisions of Order 7
Rule 11 CPC, to, thereafter, in case, it holds that the Court located at
Nalagarh, holds jurisdiction, to, try the main petition, and, make a
fresh decision, upon, the apposite application in accordance with law.
24/11/2018 22:55:57 :::HCHP
4
The parties are directed to appear before the learned trial Court on
18.12.2018. Till a decision is rendered upon the afore petition, the
petitioner shall continue to hold custody of the minor child. The
.
learned trial Judge is censured for his making primafacie, a,
jurisdictionally void verdict.
All pending applications stand disposed of accordingly.
19th November,2018 (Sureshwar Thakur),
(priti) Judge.
24/11/2018 22:55:57 :::HCHP