ORDER
S.N. Phukan, J.
1. This is the second time that the petitioner has approached this Court for
invoking the revisional jurisdiction in respect of a proceeding under the Guardians and Wards Act, 1890, for short, the Act, pending
before the learned District Judge, Kamrup, at Gauhati. The dispute relates to guardianship and custody of two minor sons.
2. The opposite party, the mother of the two minor sons filed a petition before the learned District Judge, Kamrup at Gauhati under the Guardians and Wards Act, 1890 praying for declaration that she is the guardian of her two minor children and also for her appointment as such. She also claimed custody of the children. A preliminary point regarding jurisdiction was raised before the learned District Judge and the learned District Judge by an order dated 22-2-1986 passed in the said proceeding, which was registered as Misc. Case No. G.C. 252 of 1985 held that he had jurisdiction to try the proceeding. Against the said order, this Court was approached and by judgment and order dated 10-4-1986 passed in Civil Revision No. 75 of 1986, the Court remanded the proceeding to the learned District Judge for reconsideration ‘where the minors ordinarily resides’ in the light of the observations made in the judgment. The proceeding was transferred to the Court of the Additional District Judge and the learned Additional District Judge reconsidered the matter in view of the observation made by this Court and by the impugned order dated 11-6-86 held that it has jurisdiction to try the present dispute and hence the present proceeding.
3. There is no dispute that the petitioner is the husband of the opposite party and their marriage was solemnized according to Hindu
rites in the year 1975 and out of their lawful
wedlock the two sons were born. It is also not
disputed that in July, 1984 the petitioner left
the opposite party and at that time two minor
children were with their mother and that on
23-6-85 the petitioner took away the two
children, who at that time were residing in
the Hostel of the ‘Little Star Chatrabash’,
Digboi to Calcutta and at present the said minor sons are residing at Calcutta. The present petition was filed immediately thereafter i.e. on 29-8-85 before the learned
District Judge, Gauhati.
4. Sub-section (1) of Section 9 of the Guardians and Wards Act, 1890 runs as follows :–“(1) 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.”
5. The present dispute revolves round the expression ‘where minor ordinarily resides’ occurring in said Sub-section (1) of Section 9. Before entering into the merits of the present petition, it would be convenient to discuss the law regarding jurisdiction of the District Court with reference to the said expression ‘where minor ordinarily resides’.
6. A catena of authorities have been placed before this Court wherein the said expression was dealt with.
7. In Mst. Firoza Begum v. Akhtaruddin Laskar, AIR 1963 Assam 193, a Division Bench of this Court considered the said sub-section. In that case two petitions were filed, one before the learned District Judge, Cachar at Silschar and another before the learned Additional District Judge, Gauhati and the minors were living with their mother at Cachar. This Court held that as the minors had been residing at Silchar for about 3 years, the learned District Judge, Silchar had jurisdiction as the requirement of Section 9 of ordinary residence was satisfied. In Chimanlal Ganpat v. Rajaram Maganchand Oswal, AIR 1937; Bom 158, it was held that under the aforesaid Act, in order to give the Court jurisdiction the minor must be ‘ordinarily resident’ within the local limits of the jurisdiction of the Court The same view was expressed in Sarada Nayar v. Vayankara Amma, AIR 1957 Ker 158. However, the Court further held that such a place of residence 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. In Jamuna Prasad v. Mst. Panna, AIR 1960 All 285, it was held that the words “ordinarily resident” have a different meaning than “residence at the time of the application” and that to interpret the words “where the minor ordinarily resides to mean “where the minor actually resides at the time of the application” may in some cases amount to rendering nugatory all the provisions of the Act. In Shah Harichand
Ratanchand v. Virbbal, AIR 1975 Guj 150, the Court held that the legislative test of the Court which has jurisdiction is the Court where the minor ordinarily resides and not the Court where, the father resides and with whom the minor must be deemed to have been in constructive custody. However, in Tilak Raj Kapoor v. Smt. Asha Kapoor, AIR 1979 Raj 128, wherein it was held that the test, which the legislature has provided is that the Court which has jurisdiction for hearing an application is the Court where the minor ‘ordinarily resides’ and with whom the minor must be deemed to have been in constructive custody. In Smt. Aparna Banerjee v. Tapan Banerjee, AIR 1986 Punj and Har 113 considering the fact that the children were living with her mother for more than 3 years, the Court rejected the application for the custody of the child filed by the father at a place where he was residing.
8. The language of Sub-section (1) of Section 9 of the Act is clear and there is no ambiguity. In order to give the trial Court jurisdiction under the Act, the minor must be ordinarily resident within the local limits of the jurisdiction of the Court in view of the provisions contained in the above sub-section. In other words the condition precedent for the purpose of exercising jurisdiction by the Court is circumscribed by the condition that the minor must be ordinarily resident within the jurisdiction of the concerned Court and this is a question of fact But in deciding this question the Court has to bear in mind the following principles namely (1) it has to be decided on the basis of facts available on records, (2) as the expression ‘ordinarily resident’ has a different meaning than “residence at the time of application” the Court has to ignore recent removal if any, from a place where the minor ordinarily resides; if this fact of recent removal is taken into consideration, the provisions of the Act will be rendered nugatory; (3) there is no presumption that the minor is deemed to reside at the place where his natural guardian resides as the place of residence of natural guardian is not the determining factor in deciding the question of jurisdiction of the Court However, in deciding the place where minor ordinarily resides, the Court comes to
a finding that the minor was residing with any one of his parents, the question of constructive custody may arise depending on the circumstances of the case and (4) if the minor has no permanent abode, he must be deemed to reside where he actually resides.
9. Situated thus, let me consider the instant proceeding. After remand of the case, the learned Addl. District Judge, after considering the evidence on records came to a conclusion that the ordinary place of residence of the minors is at Gauhati and accordingly, the learned Court held that the District Court at Gauhati has got jurisdiction to try the instant proceeding. The learned Court also was of the opinion that the petitioner took the children to Calcutta forcibly with some ulterior motive.
10. Before the ‘learned trial Court only the petitioner and the opposite party deposed and no other witness was examined. It is admitted by the petitioner that from 1980 to
1984 both of them with two minor sons were residing at Gauhati, that he got his first son admitted at South Point School, Gauhati. He has also admitted that he took away his two sons to Calcutta on 23-6-1985. The present petition, as stated earlier was filed on 29-8-1985 i.e. after two months. In view of what has been stated above in deciding the question of jurisdiction the removal of the minors to Calcutta on 23-6-1985 has to be ignored. The opposite party in her statement on oath has stated that in 1984 the petitioner deserted her and two minor sons and this tact is not challenged in cross-examination. So from the evidence adduced by the parties, it is absolutely clear that from 1980 to 1984, the two minor sons were residing at Gauhati and that when the petitioner deserted the opposite party, he did not take the two minor sons. In other words, the minor sons were residing at Gauhati with their mother i.e. the opposite party. The learned counsel on behalf of the petitioner submitted that these two minor sons were taken away from Hojai to Digboi by the brother of the opposite party, on the basis of the evidence of the petitioner. But I find that the petitioner in cross-examination has admitted that when he went to Hojai with two minor sons in December, 1984, his wife also accompanied
him and as such this was only a casual visit of the minors to Hojai. The opposite party both in affidavit-in-opposition and in her statement before the learned trial Court stated the circumstances under which she had to put the two minor sons in the Hostel of the ‘Little Star Chatrabash’, Digboi. Though the minor sons were residing in the Hostel, at Digboi, they were in fact under the constructive custody of the opposite party. Thus it is abundantly clear that Gauhati is the place where the minor sons ordinarily reside.
11. I am quite conscious that this being a petition under Section 115, C.P.C., this Court did not consider the evidence on records for the purpose of reappreciation. I have considered the evidence on records only for limited purpose whether there is any illegality or material irregularity in exercising the jurisdiction by the learned trial Court and I do not find any such illegality or irregularity.
12. I, therefore, hold that the learned trial Court rightly held that it has jurisdiction to try the present proceeding and as such the present petition is liable to be dismissed, which I hereby do.
13. In the result the present petition is dismissed and the rule is discharged. No costs.