IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon’ble Mr. Justice I.P.Mukerji
Hon’ble Mr. Justice Protik Prakash Banerjee
FMA No. 3398 of 2014
With
CAN 10008 of 2014
Sri Soumendra Malik
v.
Smt. Tumpa Malik
For the appellant :- Mr. Debjit Mukherjee
Ms. S. Chatterjee
Ms. D. Ganguly
….Advocates
For the Respondents :- Ms. Shanti Das
Mr. Subha Dey
…Advocates
Judgement On :- 21.12.2017
I.P. MUKERJI, J.
This case is about the court in which an application for custody of the
child under Section 25 of the Guardians and Wards Act, 1890 is to be
considered.
The minor, Ishita is very young, about nine years of age.
The parties were married on 13th May, 2007 according to Hindu rites. On
8th May, 2008 the child was born to them. On 12th July, 2010 the
respondent wife left the matrimonial house with the daughter to stay
with her parents. Since April, 2011 the wife has been staying at 68/1,
Netaji Colony, Kolkata-90, separated from her husband in her aunt’s
house. The minor is in her custody, within the jurisdiction of the District
Judge 24 Parganas (N). From 2012 the minor is going to a local school.
The learned District Judge Hooghly on 5th August, 2014 allowed the
application of the wife challenging the jurisdiction of the Hooghly court.
The application was made by the appellant/husband under Section 25
read with Section 9 of the said Act before the learned District Judge,
Hooghly. The mother, Tumpa Malik took out a demurrer application
under Section 4 (5) (b) (ii) of the said Act, saying that the Hooghly court
had no jurisdiction to entertain the application, as the child did not
ordinarily reside in any place within its jurisdiction and that the child
resided in Baranagar within the jurisdiction of the District Judge 24
Parganas (N). The petition should be returned to the appellant/petitioner
for presenting it in the proper court.
On behalf of the husband Mr. Mukherjee argued that a place where a
child ordinarily resided connoted his place of permanent residence. Since
the father’s home was in Hooghly and the child lived there till 2012 it
could be taken to be the permanent residence of the child. He also cited
an example of a child being moved from place to place by the mother.
That would not imply that the application under the said Act would be
transferred from one court to another in harmony with the movement of
the child. That could not be the intention of the legislature, he added.
The place where the child ordinarily resided according to Mr. Mukherjee
would denote the place of residence of permanent residence of the family
to which the child belonged.
Some definitions in the Guardians and Wards Act, 1890 are very
important.
The first is Section 4 (5) (b) (ii). It is set out herein below:-
“4(5) “the court” means–
(b) Where a guardian has been appointed or declared in pursuance
of any such application–
(ii) In any matter relating to the person of the ward the District court
having jurisdiction in the place where the ward for the time being
ordinarily resides.”
Section 25 of the Guardians and Wards Act, 1890 is also set out
hereunder.
“25. Title of guardian to custody of ward—(1) If a ward leaves or is
removed from the custody of a guardian of his person, the court, if it is of
opinion that it will be for the welfare of the ward to return to the custody of
his guardian, may make an order for his return and for the purpose of
enforcing the order may cause the ward to be arrested and to be delivered
into the custody of the guardian.
(2) For the purpose of arresting the ward, the court may exercise the power
conferred on a Magistrate of the first class by Section 100 of the Code of
Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person
who is not his guardian does not of itself terminate the guardianship.”
The question before us is whether this decision was correct? Whether the
District Court at Hooghly, 24 Parganas (N) had the jurisdiction to hear
the application of the appellant under Section 25 read with Section 9 of
the Guardians and Wards Act, 1890?
What is the meaning to be ascribed to the phrase “ordinary residence of a
child?”
It has to be appreciated that the role of the court does not end with the
appointment of a guardian over a minor. Nor does the responsibility of
the court cease with the appointment of a guardian. The very nature of
the provisions of the Guardians and Wards Act, 1890 tend to show that
the court has to supervise the work of the guardian, not to remove its
watchful eyes from the minor, ensure that the ward’s welfare is being
looked after by the guardian, his or her property is being taken care of by
him and so on. Therefore, this court cannot be far removed from the
minor. The ward has to be accessible to the court as much as the court
should be accessible to the guardian and any other interested person in
his or her welfare. Hence, the provision that only the court within the
jurisdiction of which the minor ordinarily resides has the jurisdiction to
entertain proceedings under the said Act.
A division bench of the Allahabad High Court in the case of Jagdish
Chandra Gupta v. Dr. Ku. Vimla Gupta reported in AIR 2003
Allahabad 317 has tried to identify the ordinary residence of a minor
adopting some very relevant factors. The minor must be “dwelling in a
place for some continuous time”. The residence has to be something
more than “temporary residence”. “The question of residence is largely a
question of intention.” One observation in that judgement is very relevant
to our case.
“19…………….However, in case of the minor no question of intention can
arise but the court will have to take into consideration all the relevant facts
as brought on record to determine the actual place of residence looking the
attendant circumstances. The past abode for however a long period it may
be, can cease to be a place where the minor can be said to be ordinarily
residing depending upon the facts and circumstances of each case and the
nature and duration of the residence. The mere fact that a minor is found
actually residing at a place at the time of the application is made by itself
is not sufficient to determine the jurisdiction.”
The Supreme Court in the similar case of Ruchi Majoo v. Sanjeev
Majoo reported in (2011) 6 SCC 479 observed that the place where the
child ordinarily resided was a question of fact. The child was ordinarily
residing where the mother was residing. She had been studying in a
school there for nearly three years.
The parties were married on 13th May, 2007.
It is no doubt true that the minor was born in 2008 in her father’s house
is in Hooghly. From 12th July, 2010 the husband and wife are living
separately. Since August, 2011 the child has been living at 68/1, Netaji
Colony, P.S.-Baranagar, Kolkata-90, in the residence of his mother’s
maternal aunt (Masi). The child goes to a local school there regularly, as
we have already observed.
Therefore, the ordinary place of residence of a child depends on the
above factors amongst others. The appellant has not been able to
demonstrate before this court that the ordinary place of residence of the
minor is not at Baranagar.
It is quite plain that the residence of the minor at Baranagar cannot be
called temporary and it is continuous from 2011. It has the touch of
permanence. In those circumstances, the court to which the application
lay under Section 25 read with Section 9 of the Guardians and Wards
Act, 1890 was the District Court at Hooghly 24 Parganas (N).
I feel that the learned District Judge has rightly refused to exercise her
jurisdiction, as in her opinion, the ordinary residence of the child was in
24 Parganas (N). I concur with this view. The court at Hooghly had no
jurisdiction to entertain the application.
We add that even if an application under Section 25 read with Section 9
of the said Act was made before a particular District Court, it will use
jurisdiction the moment the minor’s ordinary place of residence changes.
The district Court having jurisdiction over this changed ordinary
residence will now exercise jurisdiction.
This appeal is dismissed.
No order as to costs.
(I.P. MUKERJI, J)
PROTIK PRAKASH BANERJEE, J.
When learned counsel try their best to render an otherwise simple
proposition into something very troublesome, it is only then that the
glorious simplicity of the Opinion of my Learned Brother can be best
appreciated. While agreeing with most of what my learned Brother has
held I would like to add a few paragraphs, which throws into sharp relief
the actual dispute between the parties.
The entire case revolves around a short compass as to what would
be the meaning which the Court is to ascribe to the words in Section 25
of the Guardians Wardss Act, 1890, “Title of guardian to custody of
ward- (1) If a ward leaves or is removed from the custody of a guardian of
his person, the Court, if it is of opinion that it will be for the welfare of
the ward to return to the custody of his guardian, may make an order for
his return and for the purpose of enforcing the order may cause the ward
to be arrested and to be delivered into the custody of the guardian.”
Both the learned Advocates tried to impress upon me that the
magic words are in reality those contained in a few sections of the
Guardians and Wards Act, 1890 pertaining to jurisdiction of the District
Court. They both draw inspiration from firstly Section 4 Sub-Section 5
and then Section 9 read with Section 4 of the Act of 1890.
Since both the parties have placed great emphasis on these
provisions, even if according to me the true construction of Section 25 of
the Act, 1890 is to be discovered from the context of that Section alone I
find myself reluctantly forced to deal with those Sections to which
learned Counsel have drawn my attention.
Section 4 (4) read as follows: –
“4. Definitions.-In this Act, unless there is something repugnant in
the subject or context.-
(1) “minor” means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his
majority;
(2) “guardian” means a person having the care of the person of a
minor or his property, or of both his person and property;
(3) “ward” means a minor for whose person or property, or both, there
is a guardian;
(4) “District Court” has the meaning assigned to that expression in the
Code of Civil Procedure (14 of 1882), and includes a High Court in the
exercise of its ordinary original civil jurisdiction;
(5) “the Court” means-
(a) the District Court having jurisdiction to entertain an application
under this Act for an order appointing or declaring a person to be a
guardian; or
(b) where a guardian has been appointed or declared in pursuance of
any such application-
(i) the Court which, or the Court of the officer who, appointed or
declared the guardian or is under this Act deemed to have appointed or
declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court
having jurisdiction in the place where the ward for the time being
ordinarily resides; or”
Section 9 reads 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.
(2) If the application is with respect to the guardianship of the
property of the minor, it may be made either to the District Court having
jurisdiction in the place where the minor ordinarily resides or to a District
Court having jurisdiction in the place where the minor ordinarily resides
or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of
a minor is made to a District Court other than that having jurisdiction in
the place where the minor ordinarily resides, the Court may return the
application if in its opinion the application would be disposed of more
justly or conveniently by any other District Court having jurisdiction.”
It will appear that the provisions indicated by the parties as above are
subtly different from the case where a ward has been removed from the
lawful custody of his or her guardian. I believe that the parties have
been crying themselves hoarse on the altar of Section 4(5)(b)(ii) simply
because the language of the said Sub-Section indicates that the District
Court which would have jurisdiction in any matter relating to the person
of the ward would be the District Court having jurisdiction over the place
where the ward for the time being ordinarily resides.
I can see where and how this would appeal to the respondent/mother
since it is an admitted position that the mother had removed the child
from the custody of husband/father who admittedly is the natural
Guardian way back on July 12, 2010 and has not returned the minor
child (daughter) to the husband’s custody from where the minor had
been removed; this has become all the more important since the place
where the parents and the ward ordinarily resided together was at a
place which was within the jurisdiction of the Learned District Judge at
Hooghly in Chinsurah and not the Court of the Learned District Judge at
24 Parganas North, who has jurisdiction over the place to which the
minor had been removed; however, the emphasis that the
mother/respondent has placed on the words “District Court having
jurisdiction in the place where the ward for the time being ordinarily
resides” is a double-edged dagger.
This is because something more than mere fortuitous stay or spending of
a few nights is required to transform a halt for a night or a few nights
into a place where the ward ordinarily resides. Staying in a hotel room
does not make the person who resides at such place suddenly harbour
an intention of permanent residence. There is a requirement that in
order to attract the jurisdiction of a place on the ground of “ordinary
residence”there should be an intention, formed bona fide on the basis of
several objective criteria, to reside there with some degree of
permanence.
In fact, the judgments are not consistent whether in this country or
elsewhere on this aspect of the matter. While the test of permanent
intention to reside has not always been the case in India, the Courts
have not even assigned a unique or unchanging meaning to the words
“ordinarily resident”.
The cases of “Ruchi Majoo Vs. Sanjeev Majoo reported in (2011)6
Supreme Court Cases 479” inter alia at Paragraph 60 as alsothe
judgement reported in the case of “Jagdish Chandra Gupta Vs.
Dr.KumariVimla Gupta reported in AIR 2003 Allahabad 317” inter alia
at Paragraphs 19, 20 and 21 would clearly indicate (i) “ordinarily resides”
has to be something more than temporary residence(ii) the place where
the minor generally resides and would be expected to reside but for
special circumstances (iii) is not a place which the person residing as a
permanent resident has left for good with no intention to come back but
has started living in some other place (iv) in addition for a minor, actual
residence at or about the time of filing of the application cannot by itself
be a reason to determine the ordinary place of residence.
Very obviously, this last criterion has been formulated knowing very well
that a minor has very little control over his or her life, and usually the
wishes of a minor and its welfare, though given such importance by a
Court of Law, are ignored by whosoever has actual physical custody and
control of the minor/ward to the extent that where a particular minor or
ward is actually residing is not even important where the allegation
against one of the parents is that he or she has removed the ward from
the custody of a lawful guardian. This is only natural since no person
can be allowed to benefit from his or her own fault. If a person could be
allowed to benefit from removing the person of a minor/ward from a
jurisdiction to another to force the lawful guardian to chase the
wrongdoing parent or person from one jurisdiction to another, this would
have been the result. This is fact, appears to be the only rationale
behind the rule that actual physical residence is not the criterion
through which jurisdiction is attracted in a case which is framed under
Section 25 of the Guardians and Wards Act, 1890 and provided that the
order sought by the guardian is for the benefit of the minor and for its
paramount welfare.
Therefore, the learned counsel for the mother has tried to find out the
residence for the time being of the minor to attract the jurisdiction of the
particular learned District Court within whose jurisdiction either the
minor had been living residing prior to his removal on and from July,
2010 (according to Mr. Debjit Mukherjee) or the place to which the minor
had been removed by the mother from the custody of the natural
Guardian father after July, 2010. This shows that both the parties have
been trying to rely upon the actual place of residence or the place at
which either the father or the mother would want to keep the ward who
is a minor. Again if the test provided under Section 9 of the Act of 1890
is applied it presupposes that in case where the person of the minor is
involved the application would be made to the District Court having
jurisdiction in the place where the minor ordinarily resides; but in case
where the Guardianship of the property of the minor is applied for it can
be made either to the District Court having jurisdiction in the place
where the minor ordinarily resides or where minor has property. It shall
thus appear that there is no stringency regarding the place of residence
nor any requirement to identify where the minor is deemed to ordinarily
reside where only the Guardianship of the property of the minor is
involved.
Since the entire Act of 1890 must be read as a whole and since each of
the words used in the statute must be given meaning and since further
the same words used in the same sense must be given the same
meaning, and cannot be given widely different meaning and since the
words used in the instant case in Section 25 of the Act of 1890 are
perfectly capable of being understood without ambiguity I find that the
behaviour of the parties to the present case, to identify the court of the
learned District Judge having jurisdiction over the place where the ward
ordinarily resides, in a case which involves Section 25, and not any other
section, does more violence to the plain and literal meaning of the
statutory provision aforesaid, and does both logic and the purpose for
engrafting Section 25 a disservice.
To my mind the rest of the provisions of the Act of 1890 speak of where
an application is to be made over appointment of a Guardian of the Ward
or of his property or where Guardian had already been appointed where
such application is to be made but Section 25 is an exceptional provision
for giving relief to a Guardian from whose custody the ward is removed or
the ward leaves provided that the order for return to the custody of the
lawful guardian would be for the welfare of the minor. Therefore, Section
25 represents an exception to the general rule as to which District Court
has jurisdiction over a case of return of a ward to the custody of the
Guardian if he leaves or his removed from such custody. Since it is an
exception, the normal rule of tracing jurisdiction to the ordinary place of
residence on the basis of the above parameters as in Sections 4(5)(b)(ii) or
Section 9 of the Act of 1890,is not to be used in case of Section 25 of the
Act of 1890. This is because as indicated by the above persuasive
precedents, the ordinary place of residence requires an immediate and
clear intention to reside with a decree of permanence which is not merely
a casual night’s stay and impulsive residence for a while.
In cases covered under Section 25, the intention of the legislature is as I
could gather is undoing the mischief of such removal of the ward from
the custody of the lawful guardian, provided of course, that the return to
the custody of the guardian is to the benefit of the minor. Therefore,
provided that the guardian applies for such return to his custody within
a reasonable time I hold that the District Court having jurisdiction must
always be the District Court which exercises jurisdiction over the place
where the ward has been staying before being removed from the custody
of the guardian provided always that such application is made by the
guardian with reasonable alacrity and any delay in making the
application explained to the satisfaction of the learned District Judge in
question.
In the instant case as stated by my learned Brother and as appears from
the records, removal from the custody of the lawful and natural guardian
happened in July 12, 2010, but the application for the return of the
ward, was not made until June, 2012 when already the ward had
become settled as a student in the school within the jurisdiction of the
learned District Judge at District 24 Parganas North. It is therefore clear
that the learned District Judge to whose jurisdiction the child had been
removed continues to be the learned District Judge for more than one
and half years and is still continuing as the learned District Judge and
the husband/father clearly had no anxiety nor urgency in applying for
return of the ward. So, while the normal rule is to ascertain where the
ward ordinarily resides at the time when the application is filed, in case
of an application under Section 25 of the Act of 1890 the special rule is
to apply before the Court of the Learned District Judge within whose
jurisdiction the Ward was ordinarily residing prior to his being removed
from or leaving the custody of the said lawful guardian. Even this
however, is subject to an exception, being where a lawful guardian has
not moved with sufficient speed or lack of delay or laches to attract the
jurisdiction of the Learned District Judge where the ward had been
staying with him prior to the ward’s being removed from his custody, and
where the passage of time shows that there is no logical explanation for
such delay. The present case is one such example, where the lawful
guardian from his own conduct is not in a position to show why he
delayed more than one and a half years before even applying to the
former jurisdiction, that is to say, the Court of the Learned District
Judge at Hooghly in Chinsurah, from which the ward had been removed
and where no satisfactory explanation is given for such delay.
As such I have no hesitation in holding at one with my Learned Brother,
that in the instant case the lack of any explanation for the delay in
moving the proper forum for an order for return of the ward to the
father’s custody, shows that the intention of the parties has always been
that the ward should continue her studies in the home found for her by
her mother, within the place over which the Learned District Judge at
District 24 Parganas North has jurisdiction, rather than the Learned
District Judge at Hooghly in Chinsurah and it is the place which the
parties, including the lawful guardian father, have allowed to become the
place where the ward ordinarily resides, and the element of immediate
relief which usually accompanies any application under Section 25 of the
Act of 1890 is clearly absent in the present case.
The same matter can be looked from a different angle. Where the
husband/natural Guardian Acts with urgency to get back a child
removed from his lawful custody, the place where he resided last, before
the child was unlawfully removed from his custody, is the place on the
basis of which jurisdiction would be attracted; where the
husband/father/natural Guardian does not show alacrity it would be
deemed that there is no cause to invoke the extraordinary jurisdiction
under Section 25. In all other cases the test of ordinary residence would
apply. I thus hold that the application of the Wife/Respondent seeking a
direction on the appellant/husband to take back the petition under
Section 25 of the Act of 1890 with a further direction on the husband to
file it before the Learned District Judge, District 24 Parganas North, was
rightly allowed and I further hold that the husband’s appeal is without
any merit and is thus dismissed.
However, in the facts and circumstances of the case, the parties shall
bear their own costs. The records are directed to be sent down to the
Court of the Learned District Judge, Hooghly, at Chinsurah, as part of
the records of Act VIII Case No. 1 of 2012 for taking steps in accordance
with law in the light of our judgement and the consequential steps of
filing the matter afresh before the Appropriate Court.
Certified photocopy of this Judgment and order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Protik Prakash Banerjee, J.)