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Roshan Aara vs Jahir Alam on 3 April, 2017

IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 6 of 2015

Roshan Aara …… Appellant
Versus
Jahir Alam ……. Respondent
——–
CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA
THE HON’BLE MR.JUSTICE DR.S.N.PATHAK
——–
For the Appellant : Mr. Shailesh Kumar Singh, Advocate
For the Respondent : Mr. Amresh Kumar, Advocate.
———

12/03.04.2017

Heard learned counsel for the appellant and learned counsel for
the respondent. Lower Court Record has been received in this case.

2. The appellant is aggrieved by the ex-parte Judgment dated
30.8.2014 passed by the learned Principal Judge, Family Court, Hazaribag, in
Guardianship Case No. 04 of 2008, whereby, the Court below has held the
respondent herein to be the natural guardian of the minor son of the parties.

3. The Lower Court Record shows that the suit was filed by the
husband, Jahir Alam, in the Court below, claiming to be the guardian of the
minor son, Ahmad Raja, and also praying that the opposite party wife may be
directed to hand over the minor Ahmad Raja to the husband applicant.

4. The impugned Judgment shows that according to the applicant’s
case, the minor Ahmad Raja was born on 26.4.2006, out of the wedlock
between the parties and the minor son was living with his mother at New
Colony, Chakia Road, Deoria, in the State of Uttar Pradesh. The applicant
husband filed the suit in the Court below, claiming himself to be the natural
guardian as also the custody of his minor son.

5. It appears from the impugned Judgment that upon notice, the
appellant wife appeared in the Court below and she filed show-cause on
27.9.2008, in which, the maintainability of the suit was challenged on the
ground of territorial jurisdiction and it was claimed that throughout the minor
son was living at Deoria, in the State of Utter Pradesh, and as such, the Court
below had no territorial jurisdiction to try the suit.

6. It further appears from the impugned Judgment that three
witnesses were examined on behalf of the applicant respondent in the Court
below, who were A.W.1, Maksud Alam, the brother of the applicant, A.W.2,
Sahid Hassan, the father of the applicant and A.W.3, Jahir Alam, the applicant
himself. These witnesses were neither cross-examined by the opposite party
wife, nor the opposite party wife adduced any evidence in the matter.
However, from the evidence of the witnesses examined on behalf of the
applicant himself, it is apparent that the marriage had taken place between the
parties on 27.3.2005 at Deoria, in the State of Uttar Pradesh and thereafter, the
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wife came to her matrimonial home at Religarha, in the District of Hazaribag
and lived there only for six months. The son was born to her after thirteen
months of marriage, on 26.4.2006 at Deoria, and it is claimed that the
expenses of the birth of son were incurred by the respondent husband. It is
again apparent from the evidence on record, that after three months of the birth
of the son, the wife and child came and they lived at Religarha, in the District
of Hazaribag, and only after about three months, she went back to her parents’
place at Deoria in the State of Uttar Pradesh, and she never came thereafter.
Accordingly, it is apparent from the evidence of the witnesses examined by the
applicant himself, that the child has been living with his mother throughout at
Deoria, in the State of Uttar Pradesh.

7. Section 9 (1) of the Guardian and Wards Act, 1890, lays down as
follows :-

“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.”

Thus, a plain reading of this provision clearly shows that any
application with respect to the guardianship of the person of the minor had to
be filed in the Court having jurisdiction in the place where the minor
ordinarily resides.

8. Learned counsel for the appellant wife submitted that admittedly,
minor son is residing with his mother at Deoria, in the State of Uttar Pradesh
and accordingly, the Court below had no jurisdiction to entertain the suit and
on this score alone, the impugned Judgment cannot be sustained in the eyes of
law.

9. Learned counsel for the respondent husband, on the other hand,
submitted that after the marriage, the ordinary residence of the wife shall be
the matrimonial home, which is in the District of Hazaribag, and accordingly,
for all practical purposes, the ordinary residence of the minor shall be treated
at Hazaribag, irrespective of the fact that the child is actually living at Deoria
along with his mother.

10. We are not in a position to accept the contention of the learned
counsel for the respondent. Admittedly, according to the witnesses examined
by the respondent himself in the Court below, the birth of the child had taken
place on 26.4.2006 at Deoria, in the State of Uttar Pradesh. After three months
of the birth of the child, the child came with his mother to Hazaribag, and they
lived there only for about three months and thereafter, the child was taken
back by his mother to Deoria, where she is living along-with her parents.

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11. It is an admitted position between the parties that during the
pendency of this appeal, there has been Talaque between the parties.

12. We are of the considered view that even though, the respondent
is the father of the child born out of the wedlock, but the fact remains that the
suit filed by the respondent husband was not at all maintainable in the Court
below, as the Court below had no territorial jurisdiction to entertain the suit.
The evidence on record clearly shows that the child is ordinarily residing with
his mother at Deoria in the State of Uttar Pradesh.

13. In view of the aforementioned discussions, we are of the
considered view that the impugned Judgment dated 30.8.2014 passed by the
learned Principal Judge, Family Court, Hazaribag, in Guardianship Case No. 4
of 2008 cannot be sustained in the eyes of law, due to lack of jurisdiction. The
impugned Judgment is accordingly, set aside.

14. It goes without saying that the respondent shall be at liberty to
file the suit before the competent Court having jurisdiction to try the suit.

15. This appeal is accordingly, allowed with the observation as
above. Let the Lower Court Record be sent back forthwith to the Court
concerned, along-with a copy of this Judgment.

(H. C. Mishra, J.)

(Dr. S.N. Pathak, J.)
DS-BS/

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