E.Umamaheswari v. P.Selvakumar

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 30.04.2009CORAM:THE HONOURABLE MR.JUSTICE G.M.AKBAR ALIC.M.A.(MD)No.451 of 2008andM.P.(MD)No.1 of 2008E.Umamaheswari... Appellant/RespondentVs.P.Selvakumar...Respondent/PetitionerPrayer: Civil Miscellaneous Appeal filed under Section 47 of Guardian andWards Act, 1890, against the order and decree made in G.W.O.P.No.91 of2006, dated 21.11.2007, on the file of the learned Principal DistrictJudge, Pudukkottai.For Petitioner : Mr.T.V.SivakumarFor Respondent : Mr.R.Siva SubramaniamJ U D G M E N TThe respondent herein had filed G.W.O.P.No.91 of 2006, before thelearned Principal District Judge, Pudukkottai, under Sections 24 and 25 ofthe Guardians and Wards Act, 1890, for appointing him as guardian for theminor child, viz., Selvapriya. 2.The appellant herein is the respondent and the respondent herein isthe petitioner, before the Principal District Judge, Pudukottai.3.According to the petitioner, his marriage was solemnized with therespondent on 10.02.2000, as per the Hindu Rites and Customs and they wereliving together at Pudukottai. The petitioner was an Engineering studentand he went to Trichy for his further studies and later he joined in aCollege at Pudukottai, as a Lecturer. In the meanwhile, the respondentgave birth to a child, viz., Selvapriya. The respondent left for Chennaiand when the petitioner opted her to come to his place, she did not come.The minor child Selvapriya was under the care and custody of thepetitioner at Pudukottai. There is a decree of divorce dissolving themarriage between them and on 16.01.2006, the respondent came to Pudukottaiand forcibly took the child along with her to Chennai and therefore, thepetitioner had filed an application for appointing him as a guardian tothe minor child. 4.The application was resisted by the respondent/wife on the groundthat the child was all along with her at Chennai and the allegation offorcibly taking the child away is false. Further it was contended that thepetitioner has no legal right to be appointed as a guardian of the minorchild. The respondent also questioned the jurisdiction of the Court toentertain such an application at Pudukottai and alleged that the cause ofaction was vexatious and the minor child was all along with her at https://hcservices.ecourts.gov.in/hcservices/ 2Chennai. The jurisdiction of the Court below was also questioned on theground that on the date of filing of the petition, the petitioner hasadmitted that the child was residing at Chennai. 5.However, the learned Principal District Judge, Pudukkottai, afterelaborately discussing the issues, held that the Principal District Court,Pudukottai, has the territorial jurisdiction to enquire the applicationbut has negatived the claim of the petitioner for guardianship. However,the respondent was given visitation rights on various conditions. 6.Aggrieved by the order of the learned Principal District Judge,Pudukottai, and challenging the jurisdiction of the said Court, and alsochallenging the various terms and conditions of the visitation rights, therespondent/wife has preferred the present Civil Miscellaneous Appeal. 7.The learned counsel for the appellant/respondent submitted that thesaid Court has no jurisdiction, as the petitioner himself has admitted inhis evidence that he had handed over the child to the respondent/wife atChennai and therefore, the alleged kidnapping or forcibly taking thechild, will not create a cause of action at Pudukottai. The learnedcounsel also pointed out that under Section 9 of the Guardians and WardsAct, 1890, the jurisdiction will arise, where the child ordinarilyresiding, on the date of filing of the petition. The learned counsel alsopointed out that the various conditions imposed by the learned PrincipalDistrict Judge, Pudukottai, restricts the respondent/wife and benefitsthe petitioner/father. 8.While the matter was being heard in the presence of both thecounsel and their parties agreed for a settlement on the modified terms ofvisitation rights. However, a mute question arises in this appeal as towhether the learned Principal District Judge, Pudukottai, has jurisdictionto try the Original Petition, filed under Section 25 of the said Act?. Atthis juncture, it is relevant to refer Section 9 of the said Act.Section 9 of the said act reads as follows:-“9.Court having jurisdiction to entertain application- (1)If theapplication is with respect to the guardianship of the person ofthe minor, it shall be made to the District Court havingjurisdiction in the place where the minor ordinarily resides. (2)If the application is with respect to the guardianshipof the property of the minor, it may be made either to theDistrict Court having jurisdiction in the place where the minorordinarily resides or to a District Court having jurisdiction ina place where he had property. (3)If an application with respect to the guardianship ofthe property of a minor is made to a District Court other thanthat having jurisdiction in the place where the minor ordinarilyresides, the Court may return the application if in its opinionthe application would be disposed of more justly or convenientlyby any other District Court having jurisdiction.”9.The learned counsel for the respondent/wife pointed out that thepetitioner/father had admitted in his evidence that the child was https://hcservices.ecourts.gov.in/hcservices/ 3voluntarily handed over to the mother and at the time of filing of thepetition, she was residing at Chennai, and therefore, the jurisdictioncomes within the Family court at Chennai. 10.If this Court finds that the learned Principal District Judge,Pudukottai, has no jurisdiction to try the Original Petition, then theonly option is to direct the parties to go before the Court, which hasjurisdiction and it will protract the proceedings and it will be aharassment to the child. 11.Now, both the parties have agreed for a terms of settlement beforethis Court and the term is also finalized. Under these circumstances,whether this Court is empowered to proceed further without giving afinding on the question of jurisdiction is also to be considered. In myconsidered view, this Court has jurisdiction to proceed further underSection 43 of the Act. Section 43 of the Act, reads as follows:-“43.Orders for regulating conduct or proceedings of guardians,and enforcement of those orders-(1)The Court may, on theapplication of any person interested or of its own motion, makean order regulating the conduct or proceedings of any guardianappointed or declared by the Court. (2)Where there are more guardians than one of a ward andthey are unable to agree upon a question affecting his welfare,any of them may apply to the Court for its direction, and theCourt may make such order respecting the matter in difference asit thinks fit. (3)Except where it appears that the object of making anorder under sub Section (1) of Sub Section (2) would be defeatedby the delay, the Court shall, before making the order, directnotice of the application therefor or of the intention of theCourt to make it, as the case may be, to be given, in a caseunder Sub Section (1), to the guardian or, in a case under SubSection (2), to the guardian who has not made the application. (4)In case of disobedience to an order made under subSection (1) or sub Section (2), the order may be enforced in thesame manner as an injunction granted under Section 492 or section493 of the Code of Civil Procedure, 1882 in a case under SubSection (1), as if the ward were the plaintiff and the guardianwere the defendant, or, in a case under sub Section (2), as ifthe guardian who made the application were the plaintiff and theother guardian were the defendant. (5)Except in a case under Sub Section (2), nothing in thisSection shall apply to a Collector who is, as such, a guardian.”12.The appellant is declared as guardian and the father is given thevisitation rights and they are before this Court and this Court isempowered to regulate the conduct of the parties in relation to the wardunder Section 43(1) of the Act. In the interest of the welfare of theminor child, the jurisdiction question is decided accordingly and theorders passed by the learned Principal District Judge, Pudukottai ismodified. https://hcservices.ecourts.gov.in/hcservices/

413.In the result, the Civil Miscellaneous Appeal is allowed and theconditions imposed by the Court below, is set aside and as agreed by theparties the terms are modified as under:-i)The father is entitled to visit the child Selvapriya at Chennaionly during festival days and also on the Birth day of the child in acommon place at Chennai after intimating to the respondent/wife, inadvance. ii)The respondent/father is also entitled to present gifts and othereating items viz., biscuits and chocolates. iii) The respondent/father is entitled to take the minor child to hisresidence during the Christmas Holidays, i.e. on 25th December to 2ndJanuary and hand over the child to the petitioner/wife, before one dayprior to the reopening of the school. (iv)It is also observed that the respondent/father shall visit theminor child alone. Since the child is nearing the age of puberty, thefather is also directed to intimate the respondent/wife or therespondent's parents, at Trichy, in case of any illness of the child. No cots. Consequently, connected M.P.is closed. Sd/-Assistant Registrar (R)/True Copy/Sub Assistant RegistrarToThe Principal District Judge, Pudukottai.+ 1 cc to Mr.R.Sivasubramanian, Advocate, SR No.9792+ 1 cc to Mr.T.V.Sivakumar, Advocate, SR No.9723C.M.A.(MD)No.451 of 200830.04.2009RJ/15.5.09 (IT)4p/4c