FAO No.5525 of 2017 (OM) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.5525 of 2017 (OM)
Date of decision:April 30, 2019
Robina Kaushik …Appellant
Versus
Shikher Goel and another …Respondent
Coram: Hon’ble Mr. Justice Rakesh Kumar Jain
Hon’ble Mr. Justice Harnaresh Singh Gill
Present: Mr. Vikram Singh Dhakla, Advocate,
for the appellant.
Ms. Roma Bhagat, Advocate, and
Mr. Vikas Kataria, Advocate, for the respondents.
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Rakesh Kumar Jain, J.
This appeal is directed against the order dated 20.07.2017, by
which an application filed by the appellant under order 7 Rule 10 CPC for
returning the plaint for want of territorial jurisdiction in terms of Section 9 of
the Guardian SectionWards Act, 1890 (hereinafter referred to as the “Act”) has been
dismissed.
Respondent no.1 is the father and respondent no.2 is the paternal
grandmother of a minor girl who have filed a petition under Sections 7, Section8, Section9
and Section25 of the Act for appointing them as guardian of the minor female child,
namely, Tara and also for granting them her custody. In the said petition, the
appellant had filed an application under Order 7 Rule 10 CPC for returning of
the plaint for want of territorial jurisdiction in terms of Section 9 of the Act.
The said application has been dismissed by the trial Court and, thus, the present
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appeal has been filed.
In brief, marriage of the appellant with respondent no.1 was
solemnized on 04.02.2014 at Faridabad and, thereafter, they started living at
House No.1000, Sector 7C, Faridabad. They were blessed with a girl child,
namely, Tara who was born on 29.01.2016 at Faridabad. Respondent no.1 was
doing job in Qatar Airlines and on 17.05.2016, the appellant along with girl
child Tara went to Qatar but when she came back to India on 12.06.2016, she
went to her paternal home at House No.214, Sector-9, Faridabad. Respondent
no.1 along with his mother filed a petition under Sections 7, Section8, Section9 and Section25 of the
Act for seeking guardianship and custody of the minor child, in which the
appellant had filed an application under Order 7 Rule 10 CPC read with
Section 9 of the Act for returning the plaint for want of territorial jurisdiction
on the ground that the minor child was already residing at Flat No.6111/3,
D Block, Vasant Kunj, New Delhi before filing of the petition. It is pleaded
that she had filed application under the provisions of the Protection of Women
from SectionDomestic Violence Act, 2005 at New Delhi, in which the respondents had
appeared. The appellant had also alleged that FIR No.649/16, under Sections
498A/Section406/Section34 IPC was also got registered by her at Police Station Vasant Kunj,
New Delhi. Counsel for respondents no.1 and 2, namely, Virender Singh had
sent a legal notice at her address of New Delhi and, thus, for all intents and
purposes, the appellant and her minor daughter are residing at New Delhi and,
therefore, the Court at Faridabad has no jurisdiction to try and decide the
instant petition.
The application was contested by the respondent while pleading
that the appellant had been residing at House No.214, Sector 9, Faridabad at
the time of filing of the main petition. It is also prayed that in the investigation
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of FIR No.649/16, the appellant had given her address of her House No.214,
Sector 9, Faridabad, which has been witnessed by her father and the legal
notice was sent at the address of New Delhi on the report of the father of the
appellant. It is rather submitted that the appellant had appeared in this case
after service of summons at House No.214, Sector 9, Faridabad.
Learned trial Court dismissed the application of the appellant on
the ground that the memo of recovery dated 01.05.2017 prepared by the police
during investigation of the criminal case registered vide FIR No.649 of 2016
shows that while accepting her belongings, the applicant had mentioned her
address as House No.214, Sector 9, Faridabad. Besides this, the treatment
record of the girl child was also closely perused by the Court below as per
which, the treatment for viral fever of the girl child was taken from Singla
Nursing Home, Sector 8, Faridabad on 24.06.2016; treatment was also taken
for the girl child on 02.07.2016 from Singla Nursing Home at Faridabad; the
applicant also took treatment for gastroenteritis from Singla Nursing Home,
Faridabad on 30.07.2016, girl child was medically treated by Dr. Shalini
Gandhi, Gandhi Child Clinic, Sector 15, Faridabad; the applicant also took her
medical treatment from Dentist at Sector-16, Faridabad and then on
03.08.2016, medical treatment of the girl child was obtained from Gandhi
Child Clinic, Faridabad. The Court had drawn the inference that had the
appellant along with her daughter been living at New Delhi, then she would
not have been come all the way to Faridabad for taking treatment for such
disease much-less viral fever and gastroenteritis etc.
Learned counsel for the appellant has submitted that the very fact
that she had opened a bank account at Delhi and the notice was sent by the
counsel for the respondents at her Delhi address are the sufficient material for
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this Court to hold that the appellant is living at Delhi along with her minor girl
and, therefore, Faridabad Court had no jurisdiction.
Learned counsel for the respondents has submitted that the bank
account was not opened by the appellant but it was her bank account at Ambala
which has been got transferred to Delhi, which itself does not prove that she
had been living at Delhi. Moreover, no other evidence has been brought on
record by her to prove that she is ordinarily residing at Delhi especially when
both her maternal and paternal homes are at Faridabad. It is also submitted by
her that if the appellant was not residing at Faridabad at House No.214,
Sector-9, Faridabad, summons sent at the said address would have been
returned to the Court with the report that the appellant is not residing at the
given address but since the summons were accepted by the appellant at the said
address, therefore, it is apparent that she is residing at the said address and an
excuse has been created by the appellant for termination of the proceedings by
returning of the plaint while invoking Section 9 of the Act.
After hearing learned counsel for the parties and perusing the
available record, we are of the considered opinion that not only the fact that the
appellant had been served at the address of House No.214, Sector 9, Faridabad
in the petition filed by the respondents for seeking guardianship and custody of
the minor child but also the fact that for minor ailments of the minor girl child
and also for herself, the entire treatment has been taken by the appellant from
Faridabad and the appellant had received her belongings/articles at House
No.214, Sector 9, Faridabad are sufficient to prove that the appellant had been
residing along with her minor child at Faridabad at the time when the petition
was filed and the fact of having bank account at Delhi or sending the legal
notice at her Delhi address by the counsel of the respondents would have no
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effect on it.
In view of the aforesaid facts and circumstances, we do not find
any scope for interference in this appeal and hence, the same is hereby
dismissed, though without any order as to costs.
(Rakesh Kumar Jain)
Judge
April 30, 2019 (Harnaresh Singh Gill)
vinod* Judge
Whether speaking / reasoned: Yes/No
Whether Reportable: Yes/No
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