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O.P.No.130 of 2021 and
A.No.603 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2021
CORAM
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
O.P.No.130 of 2021 and
A.No.603 of 2021
Mrs.Swetha Sonwani ..Petitioner
Vs.
Mr.Dugeshwar Karley ..Respondent
Prayer: Original petition filed under Sections 3,7 to 10 and 25 of
Guardians and Wards Act r/w Order XXI Rule 2 3 of Original Side
Rules, also r/w Clause 17 of Letters Patent Act, to appoint the petitioner
herein as the guardian of the person of the minor daughter Hiral Karley
(aged about 2 years) and direct the respondent to hand over the custody of
the minor child to the petitioner and to pay the cost of this petition.
For Petitioner : Mr.G.Nivedita
For Respondent : Mr.P.Magesh
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O.P.No.130 of 2021 and
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ORDER
The above Original Petition has been filed under the provisions of
the Guardians and Wards Act, 1890, for appointing the petitioner herein as
the guardian of the person of the minor daughter Hiral Karley (aged about
2 years) and direct the respondent to hand over the custody of the minor
child to the petitioner and other consequential reliefs.
2. The case of the petitioner is that she was married to the
respondent in 2015 and the marriage was solemnised in Bilaspur,
Chattisgarh. After marriage, both the petitioner and the respondent were
living together and out of the wedlock, a girl child was born on 03.10.2018
and she was named as Hiral Karley. There was a matrimonial dispute as
between the petitioner and the respondent and the respondent appears to
have deserted the petitioner and gone back to his native place along with
the child. According to the petitioner, the respondent has forcibly taken
away the minor child from the jurisdiction of this Court. The petitioner
feels that the minor girl child would not be safe in the hands of the
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respondent as she is only two years old. In the circumstances, she has
come up with this original petition seeking to appoint her as a guardian of
the minor child viz., Hiral Karley and to the consequential direction to the
respondent to hand over the custody of the minor child.
3. In response to this original petition, counter affidavit has been
filed on behalf of the respondent. A preliminary objection has been raised
in the counter as to the maintainability of the original petition itself.
According to the counter affidavit that under the provisions of the
Guardians and Wards Act, 1890, the Court have jurisdiction to entertain
the application for appointment of guardian normally in the place in whose
jurisdiction the minor ordinarily resides. In the present case, as on date, the
minor child is residing in Raipur, Chattisgarh and therefore, the application
under the Guardians and Wards Act need to be filed in the State of
Chattisgarh before the appropriate District Court and not on the original
side of this Court.
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4. The counter affidavit further stated that even when the child was
living within the jurisdiction in Tamil Nadu, the family was living within
the territorial jurisdiction of the District Court, Chengalpet and the place of
residence of the petitioner is not within the original jurisdiction of this
Court. The petitioner is living in Kalpakkam township which comes under
the district administration of Chengalpet.
5. In the counter, it is also stated that the petitioner filed
H.C.P.No.2025 of 2020 before this Court and the respondent with the
minor daughter appeared before this Court on 22.12.2020 and
subsequently on 22.01.2021 and permitted the respondent to retain the
custody of his daughter and directed the petitioner to move separate
application for custody. This fact has not been stated by the petitioner in
the original petition.
6. The learned counsel for the respondent raised objection as to the
maintainability of the original petition with reference to Sections 3 and 9 of
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the Guardians and Wards Act which reads as under:
3. Saving of jurisdiction of Courts of Wards and
Chartered High Courts :-
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 the
guardianship of the property of the minor, it may be
either to the District Court having jurisdiction in the
place where the minor ordinarily resides or to District
Court having jurisdiction in a place where he has
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property.
(3) If an 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 application
would be disposed of more justly or conveniently by any
other District Court having jurisdiction.
7. According to the above Sections that the present original petition
is not maintainable. The learned counsel would also refer to original side
rules in Order 21 Rule 2 which reads as follows:
XXI.GUARDIAN AND WARDS
2. Application for appointment of guardian:
An application by any person other than the Collector,
for the appointment of a guardian, or for a declaration
that a person is the guardian of a minor shall be by
original petition.”
8. The above provision has to be read along with Madras High Court
Jurisdictional Limits Act, 1927. The amended schedule appended to the
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Act describes the jurisdiction of this Court, beyond that, this Court has no
territorial original jurisdiction. The applicant is admittedly living outside
the jurisdiction of this Court i.e., in Chengalpet District and therefore, this
petition is not maintainable at all.
9. At this, the learned counsel for the petitioner simply stated that
the original petition is maintainable. when this Court repeatedly inquired
that whether she has any valid legal answer to the objections raised on
behalf of the respondent as to the maintainability of the original petition,
unfortunately, the learned counsel repeated that the original petition is
maintainable without any supportive legal submissions.
10. This Court has gone through the rule position in terms of the
Guardians and Wards Act and also the original side rules and in the
absence of any contra legal contention raised on behalf of the petitioner,
this original petition is liable to be dismissed as not maintainable on the
jurisdictional issue.
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11. Accordingly, this original petition stands dismissed.
Consequently, connected application stands closed.
07.07.2021
Index : Yes/No
Internet: Yes
gsk
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V.PARTHIBAN,J.
gsk
O.P.No.130 of 2021 and
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