HARIOM Vs. SUNIL

JUDGEMENT

(1.) This revision is directed against the order dated 30-11-2010 whereby the learned Court below rejected the appli-cation of the defendant-petitioner under Or-der 7 Rule 11 C. P. C. read with Section 151 C. P. C. and Section 9 of the Guardians and Wards Act, 1890 in which the present peti-tioner defendant-maternal grandfather claimed that since the minor Prateek was or-dinarily residing with him at Gurgaon (Haryana), the application filed by father Sunil under Section 9 of the Guardians and Wards Act, 1989 for claiming the custody of the said minor could not lie at Nohar within the State of Rajasthan.

(2.) The learned counsel for the petitioner-defendant Mr. Pankaj Sharma, relying upon the judgment of Gujarat High Court in the case of Shah Harichand Ratanchand v. Virbhal, 1975 AIR(Guj) 150 and Smt. Laxmi Devi v. Kunwar Pal, 2006 AIR(All) 281 submitted that in view of language of Section 9(1) of the said Act, the application would lie to the Dist. Judge in whose jurisdiction the minor ordi-narily resides. He submitted that marriage between the applicant Sunil and his wife Tamanna, daughter of the present petitioner Hariom took place on 13-5-2006 at Gurgaon and the minor Prateek was born on 12-9-2007 at Gurgaon. The said lady Tamanna, wife of the present applicant expired on 6-6-2009 when minor Prateek was about 2 year and few months of age. He submitted that an FIR was lodged against the applicant-husband since death of Tamanna took place irf myste-rious circumstances. However, the investi-gating officer gave negative final report in the matter and upon protest petition, the mat-ter is still under investigation and after the death of mother of minor, Smt. Tamanna, the custody of the child is with the present peti-tioner-maternal grandfather and therefore, the application under Section 9 of the said Act could be brought only at Gurgaon where the child is ordinarily residing.

(3.) On the other hand, Mr. Suresh Shrimali, learned counsel for the respondent father Sunil submitted that at the stage of Order 7 Rule 11 C. P. C, the averments in the appli-cation/plaint only have to be seen and since admittedly, the residence of child in ques-tion prior to the death of wife of the appli-cant on 6-6-2009 was at Nohar within the State of Rajasthan only, therefore, upon re-moval of his custody after the death of Smt. Tamanna on 6-6-2009, it cannot be said that ordinary place of residence of minor is at Gurgaon within the State of Haryana and the cause of action for claiming custody has arisen only because the present petitioner maternal grandfather took away the custody of the child in question forcibly. He submit-ted that the application under Order 7 Rule 11 C. P. C. has rightly been rejected by the learned Court below on the basis of aver-ments made in the plaint/application. There-fore, no interference is called for in the present revision petition. He relied upon the judgment of this Court in the case of Wazid Ali v. Smt. Rubina Bano and Ors., 2008 AIR(Raj) 49 and the decision of Punjab and Haryana High Court reported in the case of 1981 All India Hindu Law Re-porter 34 Tikka Prittam Singh Sodhi v. S. Kashmir Singh.