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Sayed Shehbaaz Anees vs Sayed Farheen Shehbaaz And … on 9 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO.1706 OF 2018

SAYED SHEHBAAZ ANEES
VERSUS
SAYED FARHEEN SHEHBAAZ AND ANOTHER

Advocate for the Petitioner : Shri N. B. Narwade
Advocate for Respondent No. 1 : Shri G. R. Syed

CORAM : RAVINDRA V. GHUGE, J.

DATED : 09th APRIL, 2019.

PER COURT :

1. On 24/02/2018, I had recorded the extensive

submissions of the learned Advocate for the petitioner and had

passed the following order :-

”1 The Petitioner is aggrieved by the order dated
06.01.2018 by which, the Court below has disposed of the
Civil Miscellaneous Application No.198/2017 filed by the
Petitioner under Section 9(1) of the Guardians and Wards
Act, 1890. By the impugned order, the Court below has
concluded that it does not have the jurisdiction to
entertain the application filed by the Petitioner/ father to
claim custody of the minor child, who is said to be residing
with his mother at Pune.

2 The learned Advocate for the Petitioner relies

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upon the judgment of the Delhi High Court in the matter
of Mr.Paul Mohinder Gahun vs. Mrs.Selina Gahun, (2007)
3 Civil Law Journal 923, wherein, the Delhi High Court
has relied upon the judgments cited and has concluded
that as the child was residing in Canada for 12 years prior
to her sudden departure to India, would render the Court
in Canada with the jurisdiction to consider the issue of
custody of a child.

3 Section 9(1) of the said Act refers to the place
where the minor ordinarily resides. The word “ordinarily”
is defined in the Oxford Advanced Dictionary to mean “in a
normal way or what normally happens in a particular
situation”.

4 The Gauhati High Court, in the matter of
Amal Saha vs. Smt.Basana Saha, AIR 1988 Gauhati 22,
has culled out certain principles while deciding the issue of
jurisdiction and one of them is where the minor is found to
be residing with one of his parents which would raise the
question of his constructive custody. There is no
presumption that the minor is deemed to reside at the
place where his natural guardian resides as the place of
residence of a natural guardian is not the determining
factor in deciding the question of jurisdiction of the Court.
5 It is stated that the Petitioner was married to
Respondent No.1 on 16.05.2002 in Ahmednagar and she
started residing in their marital home at Ahmednagar. A
girl child was born in Ahmednagar. It is contended that
the Respondent/ wife secretively moved to Pune on

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15.04.2016 and started living in adultery with the real
brother of the Petitioner. The minor child was also carried
by her to Pune in 2016.

6 Issue notice to Respondent No.1 returnable on
28.03.2018.”

2. I have considered the strenuous submissions of the

learned Advocates for the respective sides.

3. The Oxford Advanced Dictionary defines ”ordinarily” to

mean ”in a normal way or what would normally happen in a

particular situation”. Section 9(1) of the Guardians and Wards

Act,1890, in relation to the jurisdiction of the Court, provides

for such jurisdiction to be with the Court within whose area

limits the minor is ordinarily residing.

4. In the case in hand, the child at issue was born on

27/12/2004 at Ahmednagar. She started attending school and

subsequently her mother left the petitioner husband and

moved to Pune with the husband of her sister, according to the

petitioner. It is contended by the petitioner that she is living in

adultery at Pune from 2016. Reliance is placed upon the

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judgment of the Delhi High Court in Mr. Paul Mohinder

(supra), wherein the child, who was born in Canada and was

surreptitiously moved to Delhi after 12 years, led to the Delhi

High Court concluding that the child cannot be said to be

ordinarily residing in Delhi.

5. In the matter of Pooja Bahadur Vs. Uday Bahadur, AIR

1999 Supreme Court 1741, the Honourable Apex Court

concluded that as the child was residing at Delhi with the

father, the application filed by the mother for custody under

the Guardians and Wards Act at Chandigarh would not be

maintainable and she would have to lodge the proceedings at

Delhi.

6. This Court in the matter of Mrs. Prajkta George Robin

Vs. Mr. George Robin, 2004(4) ALL MR 721 noticed that the

mother was residing with the child at Thane and the husband

was residing at Kalyan. Though Kalyan was a part of the

Thane District, this Court concluded that the ordinary

residence of the child would vest jurisdiction to the Court to

consider such proceedings and concluded that as the mother

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and the child are residing at Thane, the proceedings under

Section 9 of the Guardians and Wards Act would lie before the

District Judge at Thane.

7. It is well settled that unless the impugned order appears

to be perverse and erroneous and likely to cause gross

injustice, no interference is called for merely because a

different view is possible.

8. Considering the above, I do not find that the impugned

order of the Trial Court dated 06/01/2018 could be termed as

being grossly erroneous or perverse. This petition, being

devoid of merit is, therefore, dismissed.

(RAVINDRA V. GHUGE, J.)

shp/-

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