IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2018
BEFORE
THE HON’BLE MRS.JUSTICE S.SUJATHA
C.P.No.3/2015
BETWEEN :
1. K.HEMALAKSHI
W/O BASAVARAJAPPA
AGE 46 YEARS.
2. KUMARI JAYASHREE
D/O LATE KENCHAPPA
AGE 36 YEARS
BOTH ARE R/AT D.NO.840/10
“SRINIDHI NILAYA”, 2ND STAGE,
SARASWATHI BADAVANE
DAVANAGERE. …PETITIONERS
(BY SRI ARAVIND.H, ADV.)
AND :
A.D.VEERABHADRAPPA
S/O MARAPPA
AGE 47 YEARS
AGRICULTURE OFFICER
CHOWLIHALLI GOLLSRAHATTY
BHARAMASAGARA HOBLI
CHITRADURGA TALUK
NOW R/AT MARUTHI NAGARA
MEDEHALLY ROAD
CHITRADURGA. …RESPONDENT
[BY SRI SHIWAKUMARAPPA.T.C, ADV. FOR
SRI B.M.SIDDAPPA, ADV.]
THIS PETITION IS FILED UNDER SECTION 24 OF CPC
PRAYING TO DIRECT THE TRIAL COURT TO TRANSFER THE G
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W.C. No.0000010/2014, FROM 1ST ADDITIONAL SENIOR CIVIL
JUDGE, CHITRADURGA TO THE FAMILY COURT, DAVANAGERE.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
Heard the learned counsel for the parties.
2. The petitioners have filed this petition under
Section 24 of the Code of Civil Procedure, seeking for
withdrawal of the G W.C. No.10/2014 pending on the
file of the I Additional Senior Civil Judge, Chitradurga
and to transfer the same to the Family Court,
Davanagere.
3. It is contended that the petitioners are the
sisters of late Smt.Surekha, who was the wife of the
respondent – Sri.A.D.Veerabhadrappa; From the said
wedlock of the respondent with late Smt.Surekha, Kum.
Bhoomika.V.S was born. On the demise of
Smt.Surekha, these petitioners are taking care of
Kum.Bhoomika.V.S, as guardians. Kum.Bhoomika.V.S
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is studying in 5th standard in Jnana Naivedya Convent
in Davanagere and residing with the petitioners.
4. The respondent has filed a petition in G
W.C. No.10/2014 against the petitioners herein, under
Sections 6 7 of the Guardians and Wards Act, 1890
[‘Act’ for short] to declare him as the natural guardian to
Kum.Bhoomika.V.S., who is his daughter and to
appoint him as legal guardian of his minor daughter
Kum.Bhoomika.V.S and to handover the custody of the
minor daughter Kum.Bhoomika.V.S to him.
5. It is the claim of the petitioners that
Cr.Mis.No.362/2014, a petition under Section 128 of
Cr.P.C has been filed by the petitioners therein namely,
Kum.K.Jayashree [petitioner No.2 herein] as well as
Kum.Bhoomika.V.S for a direction to the respondent-
Sri.A.D.Veerabhadrappa to pay the petitioners a sum of
Rs.1,09,000/- towards arrears of maintenance granted
to the petitioners in Cr.Mis.232/2013 on the file of the
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Family Judge at Davanagere. Another P SC Case
No.23/2014 is also pending before the Hon’ble Civil
Judge, Davanagere against the respondent herein under
Section 372 of the Indian Succession Act, 1925. In such
circumstances, it would cause inconvenience to the
petitioners to appear in G W.C No.10/2014 case filed
by the respondent before the Hon’ble Principal District
Sessions Judge at Chitradurga. The Court under
whose territorial jurisdiction, the minor ordinarily
resides would be the appropriate Court, considering the
interest of the minor. Hence, it is prayed to transfer the
case in G W.C.No.10/2014 from the I Additional
Senior Civil Judge, Chitradurga to the Family Court,
Davanagere where the other matters as aforesaid are
pending for consideration.
6. Learned counsel Sri.Aravind.H., appearing
for the petitioners reiterating the grounds as aforesaid,
would submit that keeping the interest of the minor
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child, the Civil Petition deserves to be allowed as prayed
for.
7. Learned counsel Sri.Shiwakumarappa.T.C.,
appearing for the counsel representing the respondent
would submit that the respondent is a Government
employee and it would not be convenient for him to
travel from Chitradurga to Davanagere on every date of
hearing in the pending G W.C case where he is
claiming the custody of his minor daughter, being a
natural guardian. Hence, seeks for dismissal of the
petition.
8. I have carefully considered the arguments
advanced by the learned counsel appearing for the
parties and perused the material on record.
9. It is apt to refer to Section 9 of the
Guardians and Wards Act, 1890 which runs as under:
“9. Court having jurisdiction to entertain
application.–
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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.
xxxxx
xxxxx.”
10. This provision deals with the jurisdiction of
the Court to entertain application with respect to the
guardianship of the person of the minor. Such
application shall be made to the District Court having
jurisdiction in the place where the minor ordinarily
resides. As per Sub-section [1] of Section 9, the phrase
“ordinarily resides” signifies the place where the minor
generally resides, something more than a temporary
resident. It is not in dispute that the minor girl
Bhoomika.V.S., is now aged about 15 years and is
residing with the petitioners herein and also attending
to the school at Davanagere. Thus, it can be construed
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that the minor child Kum.Bhoomika V.S., ordinarily
resides at Davanagere. In such circumstances, applying
the provisions of Section 9, it can be held that the
application seeking for guardianship of the person of
the minor can be made at the District Court of
Davanagere.
11. It is also not in dispute that the petitioners
are taking care of the minor girl Kum.Bhoomika.V.S.,
and the other matters relating to the maintenance of the
said minor child are pending before the jurisdictional
Court at Davanagere. The distance between Davanagere
and Chitradurga is about 60 kilometers. However, it is
necessary to consider the convenience of the minor
child rather than the respondent where the presence of
the minor may also be required to ascertain the wishes
of the minor child or for other related issues.
12. Looking at the convenience of the minor
child, I am of the considered opinion that the custody
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case shall be withdrawn from the Court of I Additional
Senior Civil Judge, Chitradurga in G W.C.
No.10/2014 and to be transferred to the Family Court
at Davanagere. Ordered accordingly.
13. Since the parties are represented by their
respective counsel, they shall appear before the Family
Court at Davanagere on 10.12.2018, without expecting
any notice afresh. Family Court, Davanagere shall
proceed with the matter in accordance with law.
Civil Petition stands disposed of accordingly.
Sd/-
JUDGE
NC.