IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-1628-2019
Date of Decision: 07.03.2019
Ramandeep Singh …….Appellant
Versus
Gurpinderdeep Kaur Gill …..Respondent
CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL
Present: Mr. C.M. Munjal, Advocate, for the appellant.
Harnaresh Singh Gill, J.
The instant appeal is directed against the order
dated 18.12.2018 passed by the learned Civil Judge (Senior
Division) [Exercising the powers of District Judge under the
Guardians and Wards Act, 1890], Sri Muktsar Sahib, whereby
an application filed by the respondent-wife for dismissing the
petition under Section 25 of the Guardians and Wards Act, 1890
(for short `the Act’) filed by the appellant-husband for the
custody of the minor daughter, has been allowed and the
petition under Section 25 of the Act, stood dismissed for want of
territorial jurisdiction.
As per the factual position as depicted in the
impugned order, the dispute is regarding the custody of the
minor daughter of the parties, namely, Teganbir Kaur Gill, aged
about 3 years. In the petition under Section 25 of the Act, filed
by the appellant-husband, respondent-wife filed an application
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for dismissal of the said petition, inter-alia, on the grounds, that
the respondent-wife along with minor daughter, has been
residing in Canada, since November, 2017 i.e. even before the
filing of the said application. Thus, under Section 9(i) of the Act,
the Courts at Sri Muktsar Sahib, had no jurisdiction to try and
entertain the custody application. The objection as regards the
territorial jurisdiction was to be taken at the first instance.
Therefore, even before the issues were framed, the respondent-
wife, had raised the objection. It was further averred that an
application regarding the custody of the minor daughter is
already pending in the Ontario Court of Justice Court (Canada)
and the appellant-husband, through his counsel, had already
caused appearance in the said proceedings at Canada.
Upon notice, the respondent entered appearance and
filed his reply, averring therein that as per Section 21 CPC, the
objection as to the place of suing is to be taken before an
appellate or revisional Court and only such Court can entertain
such objection and that too, if the same is taken at the very first
instance. While relying upon Section 9 of the Act, it was stated
that the said provisions stipulate that the application with
respect to the guardianship shall be made to the “District Court
having jurisdiction at the place where the minor ordinarily
resides.” It was stated that as the applicant is permanent
resident of Sri Muktsar Sahib, the ordinary place of residence of
the child would be that place itself and hence the Court at Sri
Muktsar Sahib, has the jurisdiction to entertain and try the
petition under Section 25 of the Act. It was further stated that
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in the petition under Section 25 of the Act, the appellant-
husband had clearly pleaded that the respondent-wife had taken
the minor child Teganbir Kaur Gill to Canada stealthily and
without the express or implied consent of the appellant-
husband. It was further stated that in order to travel to Canada,
No Objection Certificate is required, which can only be obtained
with the consent of both the parents and without such process,
the Exit Visa cannot be obtained.
The learned trial Court, vide order impugned herein,
while allowing the application filed by the respondent-wife and
thereby dismissing the petition under Section 25 of the Act, filed
by the appellant-husband, has found that Section 9 of the Act
provides for the jurisdiction where the application for the
custody of the minor can be filed. The said Section stipulates
that 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. On the basis of the material on record, it was observed
that the minor child is residing in Canada with the respondent-
wife at 14, Caravan Court Brampton, Ontario L6 Y OT3 Canada
and same was the position at the time of filing of the petition i.e.
23.1.2018 by the appellant-husband. The relevant extracts from
the impugned order would read as under:-
“…..At the time of the filing of the petition, the
minor daughter of the petitioner was residing at
14, Carvan Court Brampton, Ontario L6 YOT 3
Canada and was not residing within the territorial
jurisdiction of the Courts at Sri Muktsar Sahib.
Now these facts have been admitted by the
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petitioner in the petition and, therefore, there is no
requirement of the framing of the issue on this
aspect and taking of the evidence on the same. In
the case in hand, the child is residing beyond the
territorial jurisdiction of this Court and is residing
in Canada. In Shakuntala Versus Rajesh (PH),
2010(5) RCR (Civil) 261, Hon’ble Punjab and
Haryana High Court has held that the territorial
jurisdiction of the Court is where the children
ordinarily reside. In that case, the minor was
residing with her mother within the territorial
jurisdiction of the Court at Jhunjhunu in
Rajasthan in Rajasthan. Hon’ble Court held that
the Court at Jagadhari in Haryana would have no
jurisdiction to decide the petition in view of Section
9(1) of the Guardians and Wards Act, 1890. Hon’ble
Court further held that the Welfare of the children
would also lean towards the taking of the view that
instead of minor travelling from where they
ordinarily reside the proceedings wold be taken in
the Court in jurisdiction of which they reside. In the
case in hand, the minor whose custody has been
sought is ordinarily residing with her mother in
Canada. Even before the respondent left India, the
minor was residing with the respondent at Moga,
the maternal home of the respondent. As such, this
Court has no territorial jurisdiction to try the
present petition as per the Section 9(1) of the
Guardians and Wards Act, 1890………”
Learned counsel appearing for the appellant submits
that the impugned order passed by the learned trial Court is
patently illegal for the reason that the respondent-wife had
taken the minor daughter to Canada without the express or
implied consent of the appellant-husband. Learned counsel
further submits that once, from the averments made by the
parties before the trial Court, it stood established that the
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respondent-wife, had acted with mala-fide intention in shifting
the child from the jurisdiction of the Courts at Sri Mukhtsar
Sahib, it was not incumbent upon the part of the learned trial
Court to accept her application for dismissal of the petition filed
by the appellant-husband under Section 25 of the Act.
We do not find any merit in the arguments raised by
the learned counsel for the appellant.
Section 9(1) of the Act, which is relevant for the
adjudication of the present proceedings, reads as under:-
“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) and (3) xx xx xx”
Thus, if the factual position of the present case is
read in consonance with the aforesaid provisions, it would stand
established that the minor, who has been admittedly residing in
Canada since November, 2017 i.e. prior to the filing of the
petition filed by the appellant-husband. The ordinary place of
residence of the minor is `Canada’ and not Sri Muktsar Sahib.
Hence, the Court at Sri Muktsar Sahib, will have no jurisdiction
to entertain and try the present proceedings.
The matter can be looked from another angle as well.
As per the stand taken by the respondent-wife before the trial
Court, the appellant-husband, has already caused his presence
before the Courts at Ontario, wherein in the application seeking
custody of the minor, is pending. The said version has not been
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controverted by the appellant-husband. Thus, in our opinion,
no prejudice has been caused to the rights of the appellant-
husband claiming the custody of the minor child. Once, the
appellant-husband, has appeared before the Courts at Ontario,
Canada, and he is defending the custody proceedings filed at the
instance of the respondent-wife, there remains nothing to be
dilated upon for the reason that the appellant-husband would be
at liberty to agitate his rights before the said Court at Canada.
In view of the above, we do not find any merit in the
present appeal. The same is, accordingly, dismissed.
(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE
07.03.2019
ds
Whether Speaking/ Reasoned: Yes/ No
Whether Reportable: Yes/ No
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