Nitesh Agrawal vs Arti Agrawaal

The order dated 29/08/2017 passed by the learned II Additional Principal Judge, Family Court, Indore in Case No. 69/2017 has been called in question

by way of present Misc. Appeal, whereby the Court below has returned back the application filed under Section 12 of the Guardian and Wards Act,

1890 to the appellant to file before the competent court of jurisdiction on the ground that this Court is not having territorial jurisdiction to try the matter.

Briefly stated facts of the case are that the marriage of the appellant and respondent was solemnized on 07/02/2006 as per Hindu rituals and

customs. From the wedlock two sons were born namely Darsh Agrawal and Mihit Agrawal and at present they are aged about nine years and three

years respectively. On 01/02/2016, a major dispute was arose between the appellant and the respondent. The respondent called her brother and on

02/02/2016, she left the house of the appellant. She had also taken both the sons without getting any permission from the appellant. Thereafter, on

22/06/2017, the appellant had filed an application under Section 12 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act') at

Family Court, Indore for obtaining the custody of his minor children. After receiving the notice respondent is t appeared in the matter and she had filed

an application under Section 9 of the Act on the ground that both the sons are not residing within the territorial jurisdiction at Family Court, Indore and

they are living with her at Kota, therefore, the Family Court, Indore has no territorial jurisdiction to deal with the matter. The appellant opposed the

application by contending that both the children are residing at Indore, therefore, this Court has jurisdiction to deal with the matter.

The trial Court vide order dated 29/08/2017, interalia held that both the sons of the appellant are residing with her mother at Kota since 02/02/2016,

thus, the Court has no jurisdiction to tried the matter and returned back the application to the appellant to file before competent Court of the

jurisdiction.

Learned counsel for the appellant submits thatboth the sons of the appellant were born at Indore and they are residing with the appellant till 2016

and the trial Court has not sought any documentary evidence from the respondent to prima-facie established that the children are living at Kota and

passed the impugned order without conducting proper inquiry. Hence, the Family Court has erred in dismissing the application filed the appellant under

Section 9 of the Act.

On the other hand, learned counsel for the respondent while opposing the contentions made by the learned counsel for the appellant submitted that

the order passed by the Family Court is just and proper and the children are living at Kota with their mother, hence the Court at Indore, has no

territorial jurisdiction to deal with the matter.

We have considered the statements made by the learned counsel for the parties and perused the record.

Section 9 of the Act provides that application with regard to guardianship of the person of the minor shall be made to the District Court having

jurisdiction in the place where the minor “ordinarily residesâ€. The residence is a mere physical fact. It means no more than personal presence in a

locality, regarded apart from any of the circumstances attending it. When this physical fact is accompanied by the required state of mind, neither its

character nor its duration is in any way material. In the case of Yogesh Bhardwaj vs. State of U.P. and Others, (1990) 3 SCC 355, it has held that

residence is a physical fact and no violation is needed to establish it. Any period of physical presence, however short, may constitute residence

provided it is not transitory, fleeting or casual. It has further been held that residence must be voluntary.

In the case of Saleem Bhai and Others vs. State of Maharashtra and others, (2003) 1 SCC 557 the Hon'ble Supreme Court whileconsidering

Section 9 (1) of the Act has held that solitary test for determining the jurisdiction of the Court under Section 9 is ordinary residence of the minor. The

expression used in Section 9(1) of the Act is “where the minor ordinarily residesâ€. Whether the minor is ordinarily residing at a given place is

primarily a question of intention which in turn is a question of fact. It may be question of law. It has further been held that unless jurisdictional facts

are admitted, it can never be pure question of law capable of being answered without an enquiry into the factual aspects of the controversy.

The question whether the Court at Indore has territorial jurisdiction to try the petition is a mixed question of law, as the same is dependent on the

question whether the minor is residing within the territorial jurisdiction of the Court. The aforesaid question cannot be determined without holding

enquiry into the factual aspects of the controversy. The scope of scrutiny at the initial stage cannot be decided by way of any application.

For the aforementioned reasons, the order dated29/08/2017 passed by the IInd Additional, Principal Judge, Indore is hereby set aside and the

matter is remitted back to the trial Court with direction that question of territorial jurisdiction of the Court shall be decided after holding an enquiry by

affording the sufficient opportunities of the parties to lead their evidence.

Both the parties are directed to appear before the Family Court, Indore on 30/07/2018.

With the aforesaid directions, this appeal stands disposed of.