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K Hemalakshi vs A D Veerabhadrappa on 2 November, 2018

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.

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