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Ramandeep Singh Gill vs Gurpinderdeep Kaur Gill on 7 March, 2019

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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