Aparna Banerjee v. Tapan Banerjee

(1.) The respondent filed a petition under S.25 of the Guardians and Wards Act for the custody of the, minor child. The petitioner-mother raised two preliminary objections, one of them, with which only we are concerned in this petition, being that the Court at Faridabad has no jurisdiction to entertain the petition as the ordinary place of residence of the minor at the time of its filing was Calcutta and not Faridabad. The petitioners objection having been overruled by the impugned order she has come up in revision.

(2.) It is not disputed that the respondent left her husband in May 1979 along with the minor and was since then living at Calcutta. The minor being of the age of less than five years, the mother was entitled to his custody till the application was filed. The learned District Judge relying on Mt. Nazir Begarn v. Ghulam Qadir Khan, AIR 1938 Lah 313 overruled her objection. However, the decision in Mst. Nazir Begams case (supra) had been rendered on totally different facts and has no bearing on the present case. There the mother applied for the custody of the minor daughter to the Court at a place where the minor was residing shortly before the filing of the application. She was removed to a place in the neighbouring State and was living there when the application was filed. On these facts it was held and rightly so, that the minor was ordinarily residing with her mother at a place where the application was filed and her removal shortly before would not change her ordinary place of residence. The learned counsel for the respondent before me relied on two other decisions, i.e. Smt. Kamlesh v. Ram Paul, (1971) 73 Pun LR 221 and Bhola Nath v. Sharda Devi, AIR 1954 Pat 489 [LQ/PatHC/1953/139] in support of the impugned order. But both the decisions again are distinguishable on the facts and are of no help to him. In Smt. Kamleshs case (supra) the minor had been removed from the custody of the natural guardian shortly before the application for his custody was filed. Similarly, in Bhola Naths case (supra) the minor had been removed stealthily by the father from the place where he was residing with the mother a few days prior to the filing of the application. On the contrary in the present case the child was residing with his mother, who was at that time entitled to his custody, for more than 3 years prior to the date of the application. It cannot, therefore, be said that the minor had been illegally removed from the custody of the father or that he was ordinarily residing at Faridabad where his father was living. On similar facts the application filed by the father against the mother for the custody of the minor was dismissed by a Division Bench of the Saurashtra High Court in Arunkumari v. Jhala Harpal Singh Natwar Singh, AIR 1954 Sau 152 with the following observation :

"There is no presumption that the minor is deemed to reside at the place where his natural guardian resides and the place of residence of the natural guardian is not the determining factor in deciding the question of the Courts jurisdiction, except as one of the circumstances to be considered in determining the ordinary place of residence of the minor. Even if such presumption can be raised, it is a weak presumption liable to be easily rebutted by proof of other circumstances. The question of residence of the minor is thus a question of fact which must be determined in the light of circumstances of each case. Where however the averments in the application made it clear that the applicant himself accepted the position that the minors ordinary place of residence on the date of the application was at B and that the application was made at S on the ground of his own residence and on the ground that 19 months before the application the minor had resided with him : Held, that the application filed at S must fail on the ground of want of jurisdiction and it was not necessary to remand the case for recording evidence about the actual place of the minors residence."

(3.) A similar view was expressed by Harihar Pershad Jaiswal v. Suresh Jaiswal, AIR 1978 Andh Pra 13, while dismissing the application of the father in the following words :

"If the expression Place of ordinary residence means the residence of his natural guardian, the very purpose of using the word, the residence of the minor in section 9 would be lost. It is not the place of residence of the natural guardian that gives the jurisdiction to the Court under S.9(1) but it is the place of ordinary residence of the minor and the Legislature has designedly used the words, where the minor ordinarily resides. Hence actual residence of the minor, having regard to the circumstances under which the minor happens to reside at a particular place must be taken into consideration in deciding the place where the minor ordinarily resides. In the circumstances of the case it must be held that the minor has been living with her mother at Nagpur for some time and at Tumsar in Maharashtra State for some time. Hence the minors ordinary place of residence cannot be said to be Hyderabad merely because the father who is the natural guardian is residing at Hyderabad."

(4.) Respectfully agreeing with the interpretation placed on the words, "the place of ordinary residence of the minor" in the above two decisions, I hold that on the facts of the present case there is no escape from the conclusion that at the time of the filing of the petition the ordinary residence of the minor was at Calcutta where he was residing with his mother for the last three years.

(5.) For the reasons recorded above, the impugned order is reversed and the application of the respondent ordered to be dismissed. No costs. Revision allowed.