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Ishita Sharma vs Nishant Sharma on 15 November, 2019

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

__
For the petitioner : Mr. Anirudh Sharma, Advocate.

For the respondent : Mr. Vijay Chaudhary, Advocate.
__

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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2

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 and

Punjab 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 fact

situation, irrespective of various reasons, grounds and
circumstances. Yes, it is very desirable that in normal

circumstances 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 it

may 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, what

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to 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, and

Clauses (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. This

Section 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 1956

Act 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 should

determine the ordinary residence of the child himself, it
should have used the expression to that effect in Seciton 9

of 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 as

clear. 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 “where

the 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, but

unless 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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