Madras HC Defines Ordinary Residence for Minor in Child Custody Matter

2. That application was resisted by the first appellant herein, who pleaded that there were quarrells owing to the ill treatment meted out to the first appellant and the minor children and that after 1972, the respondent had been ill-treating the first appellant and the children which made it impossible for them to live with the respondent, and therefore, the first respondent was obliged to live away from the respondent. The first appellant further pleaded that she was obliged to leave the respondent in July 1975, with her minor children, as the respondent refused to maintain them. The several visits to Kote village stated to have been made by the respondent were denied. The attempt of the first appellant to secure a large sum of money from the respondent in her name to facilitate her to draw interest thereon was denied. The first appellant also denied that the respondent had asked her and the children to come back to live with him. The attempts stated to have been made through mediators to secure the first appellant and minor children were refuted. While admitting the issue of a notice dated 15-4-1978 to the respondent, the first appellant charged the respondent with carelessness to look after the children and also stated that the welfare of the minor children will be in jeopardy, if they were left in the care and custody of the respondent. The first appellant also claimed that proper facilities to educate the children at Udipi or Manipal were available and that such facilities were better than those available in the place of the respondent. The first appellant also claimed that she had the means to give good education to the minor children. The first appellant also put forth the plea that it would be proper and safe for Punitha, who was about to atttain the age, to stay with the first appellant rather than with the respondent. An objection was also taken that the minor children were not living with in the jurisdiction of the District Court of Salem, at the relevant period or at the time of the filing of the application. The welfare of the minors, according to the first appellant, required that they should not be left with the respondent and the application filed by the respondent was characterised as an attempt to forestall the maintenance claim of the first appellant and the minor children.

3. The second appellant adopted the counter of the first appellant.

4. Before the court below, the respondent examined himself as P. W. 1 and marked Exs. A. 1 to A 4, while, the first appellant examined herself as R. W. 1 and relied upon Exs. B. 1 to B. 3. On a consideration of the oral as well as the documentary evidence, the Court below found that the first appellant was unable to maintain herself and the minor children, that the second appellant is in indigent circumstances and unable to maintain them and that the respondent was in a better position to look after the children and their welfare and also best suited to be the guardian of the minor children. On that conculsion, the petition filed by the respondent was allowed and the appellants were directed to hand over custody of the three minor children to the respondent herein. Aggrieved by this, the appellants have preferred this appeal.

5. The learned counsel for the appellants first contended that the application filed by the respondent herein could not have been entertained by the District Court at Salem, since the minors did not `ordinarily reside’ at any place within the jurisdiction of that Court. Elaborating this contention, it was further submitted that the first appellant along with the minor children, left Komarapalayam on 1-7-1975 and thereafter all of them had been living at Kote village within the jurisdiction of the District Court at South Canara and therefore, the District Court at South Canara alone had jurisdiction to entertain the application. Reliance in this connection is also placed by the learned counsel for the appellant on the decisions reported in Mst. Judge Kaur v. Jaswant Singh, and Mst. Firoza Begum v. Akhataruddin Laskar, AIR 1963 Assam 193. It is also further pointed out that the Court below had not adverted at all to this jurisdictional objection. On the other hand, the learned counsel for the respondent and the first appellant had been living in Komarapalayam till July 1975 and that the minor children, should therefore, be taken to have been ‘ordinarily residing’ within the meaning of Section 9(1) of the Act at Komarapalayam within the jurisdiction of the District Court at Salem. It is also submitted that the actual place of residence of the minors at the time of the filing of the application does not determine the jurisdiction of the Court and that in the absence of anything to indicate that there was an intention to abandon Komarapalayam as a place of residence the mere circumstances the minors were in the custody of the first appellant at Kote village would not make them ordinarily residing at Kote so as to render the proceedings initiated before the District Court at Salem without jurisdiction. A further point is also raised by the learned counsel for the respondent that the order was passed by the Court below on the merits of the application after due hearing and that technicalities should not be allowed to prevail when there was no failure of justice. In this connection, reliance was also placed on the decision in Shah Haichand Ratanchand v. Virbal, .

6. It would be pertinent to notice the relevant statutory provisions which have a bearing on the question debated. Section 4(4) of the Act defines a ‘District Court’ as having the meaning assigned to that expression in the Civil P. C. and includes a High Court in the exercise of its ordinary original civil jurisdiction. Section 4(5)(a) states that ‘the court’ means the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian. S. 9 relates to the jurisdiction of the court to entertain an application. The provision relevant in this case is S. 9(1) of the Act which reads as under :-

“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.”

Section 25 of the Act provides as follows:-

“25. Title of guardian to custody of ward:

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the code of Criminal Procedure, 1882 (now the code of Criminal Procedure 1973 (Act 2 of 1974) and the corresponding section is S. 97).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not itself terminate the guardianship.”

7. In the light of the aforesaid statutory provisions, the question whether the minor children in the present case ‘ordinarily resided’ at Komarapalayam within the jurisdiction of the District Court at Salem or not, has to be decided. If it is to be held that they were so residing, it is not disputed that in that event, the District Court at Salem will have jurisdiction to entertain the proceedings. The words ‘ordinarily resides’ would in my view connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth or by compulsion. The place of residence at the time of the filing of the application under the Act does not help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not, as it would be easy to stifle proceedings under the provisions of the Act by the mere act of the moving the minors from one place to another and consequently from one jurisdiction to another. The question whether the minors were ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. The paternal family of the house of the family residence may normally be taken to be the place of ordinary residence of the minors as well. The words ‘ordinarily resides’ are incapable of any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. The intention of not reverting back to the former place of residence would normally be relevant; but in the case of the minors, it is rather difficult to impute any such intention to them. It has also be borne in mind that mere temporary residence or residence by compulsion at a place however long, cannot be equated to or treated as the place of ordinary residence. Bearing in mind these considerations, it is necessary to ascertain from the materials available in this case as to where the minors ‘ordinarily resided’ for purpose of the Act. There is no dispute that till 1-7-1975, the first appellant, the respondent and the minor children were all living together under one roof in Komarapalayam. It is thereafter that the first appellant left Komarapalayam taking the children also with her and continued to live with her father’s house at Kote village with the children till the proceedings were initiated by the respondent under S. 25 of the Act. The evidence of the first appellant, examined as R. W. 1, is to the effect that she and the respondent resided together with the children at Komarapalayam. In the course of her cross-examination R. W. 1 admitted that the respondent requested her and the children to come and live with him. It is also further admitted that an ex parte decree for the restitution of conjugal rights had also been obtained by the respondent. On this evidence of R. W. 1, it is rather difficult to hold that she had completely abandoned her husband’s house at Komarapalayam as a place of residence and had decided permanently to stay at Kote. The minor children had been taken by the first appellant when she left her husband’s abode, presumably on account of certain misunderstandings and quarrels that had arisen between the first appellant and the respondent and though the differences between them apparently had not been patched up later, there is nothing in the evidence which would disclose that there was any idea of abandonment of the family house at Komarapalayam on the part of the first appellant. At any rate, the minor children cannot be imputed with any intention of abandoning the family residence at Komarapalayam, as they are obliged to stay with their mother, who had taken them to Kote village. The residence of the minors at Kote village, though for some years, has necessarily to be regarded as a temporary one or under compulsion or force of circumstances and could not therefore be regarded as the ordinary place of residence, which as stated earlier connotes the idea of a settled home, which is only in Komarapalayam. Though the words used in S. 9(1) of the Act are ‘ordinarily resides’, the mere residences on the date of application, as stated earlier, cannot be decisive of the matter. In the present case, the evidence points out that the settled home or abode of the minors is only at Komarapalayam and not at Kote, village, to which place they had been merely removed by the first appellant owing to certain misunderstandings between her and the respondent and such residence at Kote village is merely a temporary residence taken up not with the idea of permanently abandoning Komarapalayam as a place of residence. In Mst. Firoza Begum v. Akhtaruddin Laskar, AIR 1963 Assam 193, on the facts, it was found that the minors had been ordinarily residing at Silchar for a period of about 3 years prior to the making of the application and therefore the requirements of S. 9 of the Act satisfied with reference to the Court at Silchar. There were also rival applications filed by the father as well as the mother. On the facts of the present case, that decision cannot, therefore, be applied. The reliance placed upon Mst. Jagir Kaur v. Jaswant Singh , does not also assist the appellants as the Supreme Court in that case was concerned with the interpretation of Sec. 488, Cr. P. C. The language employed in that provision is very different from that in S. 9(1) of the Act. Apart from this, it is also pointed out by the Supreme Court that the meaning of the word ‘residence’ has to depend upon the context and that S. 488 Crl. P. C. is intended to serve a social purpose and also to enable a deserted wife or a helpless child to get urgent relief against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided, or even where he happens to be at the time of the proceedings are initiated. Such consideration cannot be applied with reference to S. 9(1) of the Act. On a consideration of the evidence, it has already been found that the settled home of the first appellant and the minors is only Komarapalayam, where they had ordinarily resided and as there has been no manifestation of any intention to abandon that as a home or abode, it must be held that the minors ordinarily resided only at Komarapalayam and not at Kote village. The proceedings under S. 25 of the Act initiated by the respondent where thus properly laid before the District Court at Salem.

8. There is yet another point of view from which the question of jurisdiction may be considered. The objection with reference to the jurisdiction of the District Court at Salem to entertain the petition filed by the respondent was no doubt raised in the counter but it does not appear to have been seriously urged, as otherwise, that would have been dealt with by the court below. But even otherwise, the appellants had participated in the proceedings and had also given evidence and on a consideration of the evidence that was placed before the court and taking into account the welfare of the minors, the court below had directed the appellants to hand over the custody of the minor children to the respondent. It cannot be said that there has been a consequent failure of justice. S. 21 C. P. C. is intended to avoid technicalities based on local or territorial jurisdiction in the upholding of the orders of the court. In Shah Harichand Ratanchand v. Virbal, , it has been laid down that S. 21 C. P. C. is a transcendental and curative provision to see that technicalities do not prevail, when there is no failure of justice and that the appellate court was bound to resort to this curative provision before declaring the order of the District Court to be null and void by upholding the objection about territorial jurisdiction. Even on this ground, the contentions of the appellants that the District Court at Salem had no jurisdiction to entertain the application filed by the respondent has to fail.

9. The next contention of the learned counsel for the appellants is that the court below has not considered the question of the welfare of the minors at all but had proceeded to judge only the suitability of the respondent and that such an approach is bad. It is also further submitted that the custody of the children should be allowed to remain with the first appellant that she is the mother and she is also best suited to look after the children with all her love and affection. On the other hand the learned counsel for the respondent submits that the criticism of the learned counsel for the appellants that the court below proceeded to consider only the suitability of the respondent to be a guardian is not justified at all as the entire evidence had been considered and only thereafter the respondent had been declared to be the person with whom the minors should be allowed to live having regard to their welfare. The further point made is that the evidence discloses a definite incapacity on the part of the appellants to look after even the daily needs and the minimum requirement of the minors and that under these circumstances, the court below was quite correct in directing the appellants to hand over the custody of the minor children to the respondent. In deciding the question of custody, the paramount consideration is the welfare of the minors. The expression ‘welfare’ is wide enough to include material as well as spiritual welfare. The court has to consider as to what order would be best for securing the welfare and happiness of the minors. The welfare of the children cannot at the same time be confined to either physical comfort or the comfort that money can secure. The children have to be properly brought up, educated in healthy surroundings in order to enable them to have the benefits of education and also to secure a footing in life later on. Under S. 6 of the Hindu Minority and Guardianship Act, the natural guardian of a Hindu Minor in respect of the minor’s person as well as the property is the father and only after him, comes the mother. This is no doubt, qualified by the circumstances that the custody of a minor who has not completed five years, shall certainly be with the mother. In this case all the minors have completed five years. Normally, the natural guardian is entitled to the custody of the minor and as stated already, in so doing the court will be concerned only with the welfare of the minor. In the present case, the children were aged 14, 12 and 9 even at the time the application was filed on 30-5-1978, and by now, they have grown up considerably. With a view to ascertain the wishes of the minors, they were directed to be produced before Court and when questioned, they were not averred to the idea of staying with their father. It was also attempted to be stated that the respondent was leading a wayward life. It is atone evident that the children of tender years cannot really have any knowledge of the wayward life stated to have been led by the respondent and that they have been tutored to say so, especially when even the case of the first appellant is not that. Needless to say, this attempt is only to prejudice if possible, the claim of the respondent. It is therefore not possible to act upon what has been expressed by the children. That leaves for consideration the question of the proper custody of the minor children. Out of the three children, the first is a boy and the other two are girls. The evidence of the first appellant, examined as R. W. 1, discloses that the appellants have borrowed large amounts and that the second appellant owns a house and an acre of land. The annual income therefrom is stated to be only Rs. 1000 or Rs. 1500, R. W. 1 would also admit that the respondent commands better facilities and that while living with him in Komarapalayam he was drawing a monthly salary of Rs. 3000. Ex A-1 issued at the instance of the first appellant also refers to the inability of the first appellant to maintain herself and the minor children as her parents are not in a position to maintain the first appellant and her children. From Ex. A-1 and the evidence of R. W. 1, it is evident that she is unable to maintain herself and the children. It is therefore not possible even according the first appellant to give a comfortable living to the children and also see to it that they are properly brought up and educated. The evidence of the respondent, examined as P. W. 1, would show that he is earning substantial amount and that he can also look after the children and give them the best of education available in Komarapalayam where they had been studying earlier. It may be that the children have lost touch with the respondent who has also been close to them. It is also evident that there has also been a calculated attempt by the appellant to paint a distorted picture of the respondent, in the impressionable minds of the children. But the environment in which the children are now being brought up does not appear to be very congenial for their growth and development. In so far as the son is concerned, he needs the care, love, protection, guidance and advice of the father in order to enable him to embark upon a course of useful study to secure a good footing in life and employment as well. In such matters the father’s advice and guidance would be more valuable and conducive to the welfare of the son rather than that of the mother. The other two are, no doubt, girls and even in respect of them as noticed earlier, the father would be the natural guardian. No doubt, those two children will be soon attaining age and during that period they have to be carefully looked after. The respondent, who also appeared before the court, impressed me as a very decent gentleman and a loving father and had assured that he would endeavour to do his very best to see to it that even the girls are looked after carefully with all comforts and convenience and also provided with education benefiting his status and means. The respondent is decently employed in Komarapalayam and is also holding a responsible post in a textile mill earning substantial amount, and it would, therefore, be not difficult for the respondent to command the comforts as well as the conveniences that may be required by the children to make up their life comfortable, happy and cheerful. The environment in which the children are now being brought up is not so congenial to their welfare as the second appellant on whom the first appellant is dependant, is heavily indebted and has practically no property and he is also very old and is not expected to live for many years. In the event of something happening to the second appellant the first appellant will be completely left in lurch without any male help or assistance. It would also be exceedingly difficult for her to maintain the children on further borrowings living away from the respondent. In my view, on the facts and circumstances of the present case, the welfare of the minor children compels that they should be allowed to remain with the respondent, rather than with the first appellant, though she is the mother. Having regard to these considerations, it cannot be said that the Court below was in error in having directed the appellant to handover the custody of the minor children to the respondent. Consequently, the civil miscellaneous appela fails and is dismissed, but having regard to the close relationship between the parties, there will be no order as to costs.

10. Appeal dismissed.

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