J.M.SHETH - (1.) * * * *
(2.) Mr. N. H. Bhatt learned advocate appearing for the appellants has contended that the question of ordinary residence is a question of fact and not a question of presumption. He conceded that the mere fact that the minor children resided at village Vaghel on the date of the application by itself would not be sufficient for the court to come to the conclusion that Vaghel village was the ordinary place of residence of the minor children. The court has to look to all relevant facts and circumstances and decide on the basis of them as to what is the place of ordinary residence of minor children. Mr. Bhatt urged that it was an admitted position that Virbala the mother of the minor children left her husbands home at Palanpur on 31st October 1967. Even according to the husbands own case even prior to that leaving her husbands home Virbala used to stay more often at her parents place rather than at her husbands home. The husbands whole case was and is that Virbala has left her husbands home with an animus desertendi. On the ground of desertion the husband has taken out a judicial proceeding against the wife for judicial separation. According to the petitioners case and evidence several persons intervened and went to call back the wife and the children. Even after coming to the outskirts of the village Vaghel they dropped the idea of coming to Palanpur and went back to village Vaghel. Even Ashok the eldest son left and did not accompany the father and his companions. It has been brought on the record that Ashok who is the eldest son is schooling at village Vaghel for the last few years from the time he started schooling. Admittedly the last child which is a male child is born at village Vaghel and had been all along living at village Vaghel. It is not suggested that at any time after Virbala left with the children and went to reside with her parents place at Vaghel she and her minor children ever came and resided with their father. In view of these circumstances and the facts brought on the record and proved the learned trial Judge Mr. Bhatt submitted was not justified in coming to the conclusion that Palanpur District Court had jurisdiction to hear the petition. In support of his arguments he has invited my attention to two decisions of the Bombay High Court and also decisions of other High Courts. Mr. S. B. Majmudar learned advocate appearing for the respondent father of the minor children urged that this was a petition under sec. 25 of the Guardians and Wards Act (hereinafter referred to as the Act) and not under sec. 9 of the Act. He has urged that the decisions relied upon by Mr. Bhatt interpreting the relevant words of sec. 9 cannot be pressed into service. He further contended that admittedly two minor children who were born before Virbala left her husbands home were living with their parents that is Virbala and Harichand at Palanpur at Harichands home. Under sec. 6 of the Hindu Minority and Guardianship Act 1956 the father was the natural guardian of the minor children. He therefore contended that the admitted position in law was that the father was the natural guardian of the minor children and continued to be guardian. As a natural corollary therefore the residence of minor children would be the ordinary place of residence of their guardian and admittedly the ordinary place of residence of the guaradian is Palanpur. In support of his arguments he laid considerable emphassis on the decision of the Nagpur High Court to which I will make reference at an appropriate place. Mr. Majmudar submitted that ordinary residence would mean the usual residence and usual residence will be the residence of the minors where they lived prior to their mother leaving her husbands home. In my opinion the argument advanced by Mr. Bhatt are well founded. Sec. 9(1) of the Act states that 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.
(3.) The words which require interpretation at my hands are the words where the minor ordinarily resides. We have to find out the exact connotation of the words where the minor ordinarily resides. Sec. 25 of the Act with which we are concerned uses the word Court. The word Court is defined in sec. 4(5) of the Act. Clause (a) of it reads as under :- the Court means the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian unless there is something repugnant in the subject or context. There is nothing in sec. 25 to indicate that the word Court was intended to be given any other meaning. It is therefore evident that the court referred to in sec. 25 will mean the District Court having jurisdiction to entertain an application for an order appointing or declaring a person to be guardian. In the instant case if the court comes to the conclusion that the ordinary residence of the minors was village Vaghel in Taluka Sami District Mehsana it is the District Court at Mehsana which will have jurisdiction to hear this application. Even if we read clause (b)(ii) of sub-sec. (5) of sec. 4 of the Act the position is the same. It reads :- where a guardian has been appointed or declared in pursuance of any such application 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. In the instant case Harichand the present respondent has not been appointed as a guardian or declared in pursuance of any such application. We will therefore be guided by sec. 4(5)(a) of the Act. A perusal of the relevant provisions of the Act clearly indicates that there would be no difference in the position regarding jurisdiction in case the application is not under sec. 9 of the Act but is under sec. 25 of the Act. If the Legislature had intended to give jurisdiction to the court in the appointment of a guardian of a minor person or for the custody of the minor child on the basis of his legal residence the Legislature would not have used the words where the minor ordinarily resides. The Legislature could have advisedly used the words where there is legal residence of the minor or where there is the deemed radiance of a minor. In my opinion the question of ordinary residence is a question of fact and not a question of presumption. The court has to take into consideration the relevant facts and circumstances and find out what is the place of ordinary residence of the minor. Merely because the ordinary place of residence of the father of the minors is Palanpur it cannot be presumed that the ordinary residence of the minor children of his is Palanpur. At the same time merely because the minors happened to be at village Vaghel on the date of the application it cannot be presumed that that is the ordinary place of their residence. This conclusion of mine is supported by the decision of a Division Bench of the Bombay High Court in Lakshman v. Gangaram A.I.R. 1932 Bom. 592. It is observed :- A minor resident of R. district was married to a person resident of P. district Application for the appointment of guardian of the person were filed by the mother and the husband.The minor had been married for a yew and had stay for only five months with her husband It was held that considerations of convenience are relevant only when the minor ordinarily resides in two districts. In this case the minor ordinarily resided only in R. District and so the Court at R had jurisdiction. Broomfield J. has observed It is provided in sec. 9 of the Act that 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. The first question therefore is whether this minor girl Sonabai ordinarily resides in the Poona District or in the Ratnagiri District. We have been referred to several cases but none of them is of much assistance upon this particular point. The only thing which can be said to be at an clear is that residence is a matter of fact and not a matter of presumption. It cannot be presumed that the minor girl ordinarily resides in Poona merely because her husband is residing there. Now the facts are that Sonabais parents live in Khed in the Ratnagiri District and upto the date of her marriage Sonabai lived with her parents in Khed. Her marriage with Laxman Morshet also took place in Khed in June 1929. After the marriage it appears that she went to live with her husband in Poona for one month. She then returned to her parents in Khed and subsequently she stayed with her husband in Poona from October 1929 to February 1930. That is to say out of the whole of her life she has lived for about four months in Poona; all the rest of the time she has been residing in Khed in the Ratnagiri District. In a later decision of the Bombay High Court in Chimanlal v. RajaramA.I.R. 1937 Bom. 158-another Division Bench of the Bombay High Court has taken the same view. In that case an application for the custody of a minor girl WaS made under sec. 25 by her paternal uncle residing outside the jurisdiction of the court. It was found that the girl with her mother lived with him since her fathers death and both were maintained by him. The court appointed the applicant as her guardian on taking security from a person who resided within its jurisdiction. It was held that In order to give the Court jurisdiction under sec. 25 the minor must be ordinarily resident within the local limits of the jurisdiction of the Court in view of the definition of Court in sec. 4(5) of the Act. At p. 160 it is observed - In view of the fact already mentioned that the minor has spent the greater part of her short life with the respondent in Kolhapur there might have been some difficulty in this connection but since April 1934 she has admittedly been residing with the opponents in the Poona District. At the time the application was made in January 1935 she had already been residing with them for eight months. The husband with whom her engagement has been made is a resident of Poona. If the application under sec. 25 had not been made at all she would doubtless have continued to reside at Poona. Under these circumstances we think that it can be said that she was ordinarily residing within the jurisdiction of the District Court of Poona at the material time both for the purpose of appointment of a guardian and for the purpose of an order under sec. 25. It cannot be gainsaid that the arguments advanced by Mr. Majmudar get support from the decision of the Nagpur High Court in Vimlabai v. BaburaoA.I.R. 1951 Nagpur 179. Mudholkar J. (as he then was) has observed Under the Hindu law the father is the natural guardian of his children and his children must be deemed to reside where he resides. Where a man has no permanent abode he must be deemed to reside whore he actually resides it follows therefore that his children must also be deemed to reside at the plaee where he happens to reside. Thus where a Hindu minor has been living in Amraoti continuously for over a year with her father she must be deemed to reside ordinary in Amaoti though before going to Amraoti to live with her father after he found employment there she lived for the greater part of her short life in Nagpur first with her parents and thereafter with her mother. During the period the minor spent with her mother in Nagpur after the departure of her father she (the minor) must be deemed to be in charge of the mother on behalf of the father who is her natural guardian. So Nagpur cannot be said to be the place of her legal residence. With respect I may say that we are not concerned in deciding the question of jurisdiction as regards the legal residence. We are concerned with the question regarding the ordinary residence of the minors. Apart from that this view runs counter to the view taken by the Bombay High Court prior to the date of the bifurcation and consequently those decisions are binding on me. In my opinion these Bombay decisions also lay down the correct position of law. A Division Bench of the Saurashtra High Court in Bai Shri Arunkumari v. Natwarsingh A.I.R. 1954 Sau. 152-has taken a similar view. It is observed therein that 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 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 5 on the ground of his own residence and on the ground that 10 month before the application the minor had resided with him. It was held that the application filed at 5 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. In the instant case similar is the position. Admittedly according to the father the minor children are residing at mothors parents place since 31 October 1967. The application has been filed on 6th January 1970. It means that on the date of the application the minor children were living for a period of over two years at village Vaghel. It is significant to note at this stage that Ashok the eldest child was born on 22nd July 1963. The marriage between Virbala and Harichand had taken place on 18th February 1961. Sharmishta was born on 28th February 1966 and Mahendra was born on 15th May 1968. Mahendra has never resided at his fathers place. He has all along lived at village Vaghel. Even before Virbala left her husbands home even according to her husbands version Virbala more often resided at her parents place. The eldest child who has reached the age of schooling is studying at the school at Vaghel. Taking into consideration all the relevant circumstances and facts brought on record there is no escape from the conclusion that the minors were residing ordinarily and are residing ordinarily at village Vaghel. The learned trial Judge was therefore in error in holding that the Palanpur District Court had jurisdiction to entertain this application. A Single Judge of the Allahabad High Court in Jamuna Prasad v. Mst. Panna A.I.R. 1960 All. 285has taken a similar view. It is observed by Bhargava J. The words ordinarily resident have a different meaning than residence at the time of the application. Both may be identical or may be different. That would depend on the facts of each particular case. To interpret the words where the minor actually resides at the time of the application may in some cases amount to rendering nugatory all the provisions of the Guardians and Wards Act. It may be that persons who have absolutely no right may remove the minor forcibly and keep him at a distant place when the application is made where the minor was ordinarily residing and objection may be taken that the application was not entertainable. The entire circumstances the intention with which the minor had been removed the person with whom the minor has been living and other relevant factors have to be taken into consideration. In the instant case the minors are residing with none else but with their mother. When the mother left her husbands home two of the elder minors were of very tender age. The third minor has been born even after the mother left her husbands home. In Harbans Singh v. Vidya WantiA.I.R. 1960 Pun. 372-Dua J. (as he then was) has taken a similar view observing A question whether or not a minor ordinarily resides within the jurisdiction of a Court has to be decided on the facts and circumstances of each case. A Division Bench of the Assam High Court in Mst. Firoza Begum v. Akhtaruddin Laskar A.I.R. 1963 Assam 193-has also taken a similar view. It is observed therein the requirement of sec. 9 of ordinary residence was satisfied in the case of Silchar. The minors had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. In the circumstances the only court which could be said to have jurisdiction according to the language of sec. 9 of the Act was the District Court at Silchar. In paragraph 4 at p. 194 it is observed It is contended by Mr. Ghose that the expression ordinarily resides does not mean casual or factual residence of the minors at the time of the application being made and that normally the residence of the minor should be taken as the place where the legal guardian is residing. He placed reliance in the cases of Jhala Harpalsinh v. Bai Arunkunvar A.I.R. 1954 Sau. 13; Chandra Kishore v. Smt. Hemlata Gupta. A.I.R. 1955 All. 611; and Sarada Nayar v. Vayankara Amma A.I.R 1957 Ker. 158. After referring to these decisions in paragraph 5 it is observed In the instant case it is not disputed that the minors left with their mother to Silchar in the year 1957 and that the minors had been living with their mother ever since in Silchar. The application filed by the father in the District Court at Gauhati was only made on 21-360. as already pointed out. It is therefore clear that the minors had been residing at Silchar for a period of about three years prior to the making of the application. In the circumstances we feel that the requirement of sec. 9 of ordinary residence is satisfied in the case of Silchar and it can be held without any difficulty that the minors had been residing at Silchar for a substantial period of time prior to the application made by the father in the District Court at Gauhati. It is not the case of the father of the minors that the minors were taken away to Silchar for the purpose of avoiding the jurisdiction of the District Court at Gauhati because the application in the District Court at Gauhati was made as already pointed out about three years after the minors had left for Silchar. The present case with which we are concerned practically stands on the same footing. Mr. Majmudar invited my attention to the decision of the Kerala High Court in Sarada Nayar v. Vayankara Amma A.I.R. 1957 Ker. 158. The relevant observations are The expression where the minor ordinarily resides appears to have been deliberately used in sec. 4(5)(b)(ii) to exclude places to which the minor may be removed at or about the filing of the application for the enforcement of the guardianship and custody of the minor. The phrase ordinarily resides indicates ordinary residence even at the time of the presentation of the application under sec. 25. The emphasis is undoubtedly on the minors ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and inspite of such removal the minor will be deemed to to have its residence at the place where it was ordinarily residing. The present case is not a case of that type. After the mother left her husbands home the minors are residing at village Vaghel. Mr. Majmudar also invited my attention to the decision of Mukerji J. Chandra Kishore v Hemlata A.I.R. 1965 All. 611. It is observed therein Under the Hindu law the father is the natural guardian and the preferential guardian of his minor children. Therefore when there is a contest between the mother and the father in regard to what the residence of the minor children is going to be then the mothers word cannot be accepted in preference to the word of the father. Thus where the evidence shows that certain minors had an ancestral home in Meerut that they had been there with their father and mother during the better part of their short life & that they had been taken by their mother to Dehra Dun only a very brief span of a few hours it was held that the ordinary residence of the minors was Meerut and that the Dehra Dun Court had no jurisdiction to entertain the application of the mother for the guardianship of her minor sons. In the instant case the position in quite different. It appears that most of the High Courts have taken the view that there is no such presumption as has been canvassed by Mr. Majmudar. It is a question of fact. The court has to decide the question of ordinary residence of minors on taking into consideration all the relevant circumstances. I therefore hold that the District Court at Palanpur had no jurisdiction to entertain and hear the petition filed by the present opponent for the custody of the minor children. The order passed by the trial court is therefore without jurisdiction. It is therefore required to be set aside. The present proceeding being a miscellaneous proceeding sec. 141 of the Civil Procedure Code can be pressed into service and an order can be passed for directing the trial court to return the application Ex. 1 of Civil Miscellaneous Application No. 1 of 1971 for presenting it to the proper court. The appeal is allowed and the order passed by the trial court dated 3rd September 1971 is set aside on the ground that the trial court had no jurisdiction to entertain and hear this petition. The trial court is directed to return Ex. 1 of Civil Miscellaneous Application No. 1 of 1971 (Original No. 2 of 1970) to the respondent (original petitioner) for presenting it to the proper court. Mr. Bhatt fairly states that in the circumstances of the case the court may pass an order that each party should be ordered to bear its own costs throughout. Each party is ordered to bear its own costs throughout. Cross objections do not survive in view of my finding regarding jurisdiction. They therefore stand dismissed with no order as to costs. Civil Application No. 2408 of 1971 does not survive. It stands disposed of with no order as to costs. ;