IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 561 of 2019
Decided on:15.11.2019
.
Ishita Sharma ….Petitioner
Versus
Nishant Sharma ….Respondent
Coram
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
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For the petitioner : Mr. Anirudh Sharma, Advocate.
For the respondent : Mr. Vijay Chaudhary, Advocate.
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Jyotsna Rewal Dua, J.(oral)
Petitioner is seeking transfer of the petition filed by the
respondent under Section 7 12 of the Guardians and Wards Act, 1890
bearing registration No. GWA/03/2017, titled as Nishant Sharma vs. Ishita
Sharma another from the Court of learned Civil Judge (Sr. Division),
Sundernagar, Court No.1, District Mandi to learned Civil Judge (Sr.
Division) Bilaspur, Himachal Pradesh.
2. Facts relevant for the purpose of adjudication of the
petition may be noticed:-
2(i) Respondent and petitioner, are husband and wife.
Matrimonial disputes are pending between them. For the purpose of
adjudication of the present petition, it is not necessary to go into the
dispute between them save and except to observe that a divorce petition
1
Whether reports of Local Papers may be allowed to see the judgment?
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under Section 13 of the Hindu Marriage Act has been filed by respondent-
husband against his wife-petitioner. The couple has a minor son-master
.
Yuvhaan Sharma, who is presently living in custody of his mother-
petitioner. Parties are living separately.
2(ii) A petition under Section 7 12 of the Guardian Wards
act was filed by respondent-husband for custody of his son in the Court of
learned Civil Judge (Senior Division) Court No.1, Sundernagar, District
Mandi.
2(iii) In reply to the aforesaid petition, a preliminary objection
was taken by the petitioner-wife in respect of territorial jurisdiction of the
Court in view of provisions of Section 9 of the Act ibid.
2(iv) Without deciding this preliminary objection in respect of
it’s territorial jurisdiction,Learned Court below is proceeding with the
petition, which at present is at stage of recording of evidence.
2(v) Feeling aggrieved, petitioner-wife has preferred instant
petition seeking transfer of the petition filed by her husband under
Guardian and SectionWards Act from Sundernagar to Bilaspur.
Observations:-
3(i) It has not been disputed by the parties that their son-Master
Yuvhaan Sharma is residing at Bilaspur.
3(ii) It will be appropriate to refer to Section 9 (1) of the
Guardians and SectionWards Act:-
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“(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.”
3(iii)(a) This Court in AIR 2008 (HP), 38 titled SectionHimanshu
Mahajan vs. Rashu Mahajan interpreted the provision of Section 9(1) of
the Act and held that only such Court shall have the jurisdiction to
entertain the petition where the child ordinarily resides. Relevant paras of
the judgment are extracted hereinafter:-
“15. With utmost respect, I disagree with the aforesaid
contrary view taken and expressed by the Karnataka andPunjab and Haryana High Courts. Clause (a) of Section 6
of 1956 Act merely stipulates and provides that the
custody of a minor who has not completed the age of five
years shall ordinarily be with the mother (emphasis
supplied by me). The use of the word ordinarily in Clause
(a) clearly indicates legislative intent that even though in
normal course and normal circumstances the custody of a
child below the age of five years should normally be with
the mother, it cannot be mandatorily so in every factsituation, irrespective of various reasons, grounds and
circumstances. Yes, it is very desirable that in normalcircumstances the custody of an infant should be with the
mother, she being the childs natural guardian of the first
choice, but there can be circumstances galore where itmay not either be possible or desirable for such custody of
the infant child being with the mother. For instance, the
mother may not be leading chaste life. She may be
immorally entangled with some one else, leading to
estranged matrimonial relationship with her husband, the
father of the child. She may be sick, physically or mentally
or may be suffering from any disability, not conducive for
ideal upbringing of the child. She may financially be a
destitute, with hardly any means to maintain herself, what20/11/2019 20:23:13 :::HCHP
4to speak of properly maintaining the child. On the other
hand, the father may not be suffering from any of the
aforesaid or other negative characteristics and may be.
leading a life which is very conducive for the upbringing
of the child. The aforesaid provision in Clause (a) of
Section 6 of 1956 Act, therefore, cannot be held to be of
mandatory or binding nature.
16. Section 6(a) of 1956 Act and Section 9 of 1890 Act
operate in different fields. Both are independent of each
other. Whereas Section 6 of 1956 Act deals with the issue
of the natural guardianships of a Hindu minor, andClauses (a), (b) and (c) define the natural guardians,
Section 9 of 1890 Act lays down the rule with respect to
the territorial jurisdiction of the Court where the
application for the custody of a child has to be filed. ThisSection clearly relates to and refers the ordinary residence
of the child and says that only such Court shall have the
jurisdiction to entertain the petition where the child
ordinarily resides? The issue of the natural guardianship
of the child being the subject matter of Section 6 of 1956Act cannot be thrust upon, linked with or imported into
Section 9 of 1890 Act. If the Legislature intended that the
residence of the mother or the father of the child shoulddetermine the ordinary residence of the child himself, it
should have used the expression to that effect in Seciton 9of 1890 Act. It did not do so. It used and specified the
expression ordinary residence of the child himself. The
expression is unambiguous and totally certain as well asclear. Taking a cue from the observations made by their
Lordship of the Supreme court in the case of Smt. Jeewanti
Pandey, it can safely be said that the expression ordinary
residence must mean the actual, physical place and not a
legal or constructive residence.”
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3(iv) Hon’ble Apex Court in 2011 (6) SCC 479, titled SectionRuchi
Majoo vs. Sanjeev Majoo held as under:-
.
“24. It is evident from a bare reading of the above that
the solitary test for determining the jurisdiction of the
court under Section 9 of the Act is the “ordinary
residence” of the minor. The expression used is “wherethe minor ordinarily resides”. Now whether the minor is
ordinarily residing at a given place is primarily a
question of intention which is turn is a question of fact. It
may at best be a mixed question of law and fact, butunless 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.”
3(v) In the instant case, since it is not in dispute that minor
Yuvhaan ordinarily resides in Bilaspur, therefore, the petition was not
maintainable before the learned Civil Judge (Sr. Division) Sundernagar,
Mandi.
4. Accordingly, present petition is allowed and the petition
bearing No. GWA/03/2017, pending adjudication before learned Civil
Judge (Senior Division) Court No.1, Sundernagar, Mandi is ordered to be
transferred to the learned Civil Judge (Sr. Division), Bilaspur. The parties
through their learned counsels are directed to appear before the learned
Civil Judge (Sr. Division), Bilaspur on 16.12.2019. The learned Civil
Judge (Senior Division) Court No.1, Sundernagar, Mandi, is directed to
transfer the record of the case to the Court of learned Civil Judge (Sr.
Division), Bilaspur well before the date fixed. Since, the petition was
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filed in 2017, therefore, it is hoped that the learned Civil Judge (Sr.
Division), Bilaspur shall expedite the matter and earnest efforts shall be
.
made to dispose off the same by 31.03.2020.
A copy of the order be sent to learned Civil Judge (Senior
Division) Court No.1, Sundernagar, Mandi and learned Civil Judge (Sr.
Division), Bilaspur.
5. With these observations, the present petition stands
disposed of along with pending application(s), if any.
r (Jyotsna Rewal Dua)
Judge
15th November, 2019
(reena)
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