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Nitesh Aggrawal vs Smt. Aarti Aggarwal on 9 July, 2018

-( 1 )- M.A.1423/2017

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE P.K. JAISWAL
HON. SHRI JUSTICE S.K.AWASTHI
M.A. No. 1423/2017
Nitesh Agrawal
Versus
Smt. Arti Agrawaal
——————————————————————–
Shri A.S. Garg, learned Senior Counsel with Shri
Anurag Baijal, learned counsel for the appellant.
Shri A.S. Rathore, learned counsel for the
respondent.
——————————————————————–
ORDER

(09/07/2018)

Per S.K.Awasthi, J.:

The order dated 29/08/2017 passed by the learned
II Additional Principal Judge, Family Court, Indore in
Case No. 69/2017 has been called in question by way of
present Misc. Appeal, whereby the Court below has
returned back the application filed under Section 12 of
the Guardian and Wards Act, 1890 to the appellant to file
before the competent court of jurisdiction on the ground
that this Court is not having territorial jurisdiction to try
the matter.

2. Briefly stated facts of the case are that the marriage
of the appellant and respondent was solemnized on
07/02/2006 as per Hindu rituals and customs. From the

-( 2 )- M.A.1423/2017

wedlock two sons were born namely Darsh Agrawal and
Mihit Agrawal and at present they are aged about nine
years and three years respectively. On 01/02/2016, a
major dispute was arose between the appellant and the
respondent. The respondent called her brother and on
02/02/2016, she left the house of the appellant. She had
also taken both the sons without getting any permission
from the appellant. Thereafter, on 22/06/2017, the
appellant had filed an application under Section 12 of the
Guardian and
Wards Act, 1890 (hereinafter referred to as
‘the Act’) at Family Court, Indore for obtaining the
custody of his minor children. After receiving the notice
respondent is t appeared in the matter and she had filed
an application under
Section 9 of the Act on the ground
that both the sons are not residing within the territorial
jurisdiction at Family Court, Indore and they are living
with her at Kota, therefore, the Family Court, Indore has
no territorial jurisdiction to deal with the matter. The
appellant opposed the application by contending that
both the children are residing at Indore, therefore, this
Court has jurisdiction to deal with the matter.

3. The trial Court vide order dated 29/08/2017, inter-
alia held that both the sons of the appellant are residing
with her mother at Kota since 02/02/2016, thus, the
Court has no jurisdiction to tried the matter and returned
back the application to the appellant to file before
competent Court of the jurisdiction.

4. Learned counsel for the appellant submits that
both the sons of the appellant were born at Indore and

-( 3 )- M.A.1423/2017

they are residing with the appellant till 2016 and the trial
Court has not sought any documentary evidence from the
respondent to prima-facie established that the children
are living at Kota and passed the impugned order
without conducting proper inquiry. Hence, the Family
Court has erred in dismissing the application filed the
appellant under
Section 9 of the Act.

5. On the other hand, learned counsel for the
respondent while opposing the contentions made by the
learned counsel for the appellant submitted that the order
passed by the Family Court is just and proper and the
children are living at Kota with their mother, hence the
Court at Indore, has no territorial jurisdiction to deal
with the matter.

6. We have considered the statements made by the
learned counsel for the parties and perused the record.

7. Section 9 of the Act provides that application with
regard to guardianship of the person of the minor shall
be made to the District Court having jurisdiction in the
place where the minor “ordinarily resides”. The
residence is a mere physical fact. It means no more than
personal presence in a locality, regarded apart from any
of the circumstances attending it. When this physical fact
is accompanied by the required state of mind, neither its
character nor its duration is in any way material. In the
case of
Yogesh Bhardwaj vs. State of U.P. and Others,
(1990) 3 SCC 355, it has held that residence is a
physical fact and no violation is needed to establish it.
Any period of physical presence, however short, may

-( 4 )- M.A.1423/2017

constitute residence provided it is not transitory, fleeting
or casual. It has further been held that residence must be
voluntary.

8. In the case of Saleem Bhai and Others vs. State of
Maharashtra and others, (2003) 1 SCC 557 the
Hon’ble Supreme Court while considering
Section 9 (1)
of the Act has held that solitary test for determining the
jurisdiction of the Court under
Section 9 is ordinary
residence of the minor. The expression used in
Section
9(1) of the Act is “where the minor ordinarily resides”.
Whether the minor is ordinarily residing at a given place
is primarily a question of intention which in turn is a
question of fact. It may be question of law. It has further
been held that unless jurisdictional facts are admitted, it
can never be pure question of law capable of being
answered without an enquiry into the factual aspects of
the controversy.

9. The question whether the Court at Indore has
territorial jurisdiction to try the petition is a mixed
question of law, as the same is dependent on the question
whether the minor is residing within the territorial
jurisdiction of the Court. The aforesaid question cannot
be determined without holding enquiry into the factual
aspects of the controversy. The scope of scrutiny at the
initial stage cannot be decided by way of any
application.

10. For the aforementioned reasons, the order
dated29/08/2017 passed by the IInd Additional, Principal
Judge, Indore is hereby set aside and the matter is

-( 5 )- M.A.1423/2017

remitted back to the trial Court with direction that
question of territorial jurisdiction of the Court shall be
decided after holding an enquiry by affording the
sufficient opportunities of the parties to lead their
evidence.

11. Both the parties are directed to appear before the
Family Court, Indore on 30/07/2018.

12. With the aforesaid directions, this appeal stands
disposed of.

(P.K. Jaiswal) (S.K.Awasthi)
skt Judge Judge
Digitally signed by Santosh Kumar
Tiwari
Date: 2018.07.10 11:10:32 +05’30’

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