VIRBALA WIFE OF SHAH HARICHAND RATANCHAND Vs. SHAH HARICHAND RATANCHAND

JUDGEMENT

(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 :-