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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.11 of 2024 (In the matter of an application under Section 115 of the Code of Civil Procedure) Rankanath Khandei Santosini Khandei Appeared in this case:- -versus- …. …. Petitioner Opposite Party For Petitioner For Opposite Party : :
Legal Reasoning
Mr. A. Tripathy, Advocate Ms. S. Sahoo, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 07.04.2025 / date of judgment : 17.04.2025 A.C. Behera, J. This revision under Section 115 of the C.P.C., 1908 has been filed by the petitioner(who was the Opposite Party in GUAP No.07 of 2023 in the court of learned Judge, Family Court, Boudh) challenging an order of rejection to his petition under Order-7, Rule- 11(d) read with Section 151 of the C.P.C., 1908 passed on dated 24.01.2024 in GUAP No.07 of 2023. 2. The factual backgrounds of this revision, which prompted the petitioner (husband) for filing of the same against his wife(Opposite Party) is that, the Opposite Party of this revision being the wife of the petitioner filed a case vide GUAP No.07 of 2023 in the court of the learned Judge, Family Court, Boudh against the Opposite Party (who is the petitioner in this revision) as per the Guardians and Wards Act, 1890 praying for appointing her as a guardian of her minor son Rudranarayan Khandei aged about five years under Section 7 of The Guardians and Wards Act, 1890 stating that, her matrimonial house, i.e., the house of her husband is at village Odasara, Dam Chack under the jurisdiction of Daspalla Police Station in the district of Nayagarh and by giving severe physical and mental torture, to her, her husband and his family members deserted her, for which, she(wife) is residing in her parents‟ house at Dalua Sahi under Harabhanga Police Station in the district of Boudh and her husband along with his family members kept her minor son, i.e., Rudranarayan Khandei aged about five years with them in their house debarring her(wife) from the guardianship of her minor son as well as abstaining her from taking the proper care of her minor son for his well- being, though she is a fit person to be the guardian of her minor son and to look-after him properly for his welfare and benefit. Her husband and his family members are not taking proper care of her minor son in their house. For which, without getting any way, she approached the learned Judge, Family Court, Boudh by filing GUAP No.07 of 2023 being the petitioner against her husband arraying him as Opposite Party praying for Page 2 of 9 appointing her(Santoshini Khandei) under Section 7 of the Guardians and Wards Act, 1890 as guardian of her minor son, Rudranarayan Khandei. The husband of the petitioner, i.e., Opposite Party filed a petition in that GUAP No.07 of 2023 under Order-7, Rule-11(d) read with Section 151 of the C.P.C. praying for rejection of the petition of that GUAP No.07 of 2023 filed by his wife on the ground that, the petition of his wife is not maintainable under law due to lack of territorial jurisdiction of the Judge, Family Court, Boudh to entertain the same. Because, his minor son, i.e., Rudranarayan Khandei is staying in his house at village Odasara, Dam Chack under Daspalla Police Station in the District of Nayagarh, for which, the learned Judge, Family Court in the District of Boudh has no territorial jurisdiction to entertain the petition vide GUAP No.07 of 2023 filed by his wife. So, the petition vide GUAP No.07 of 2023 filed by his wife is liable to be rejected as per Order-7, Rule-11(d) read with Section 151 of the C.P.C., 1908. To which, the petitioner of GUAP No.07 of 2023 objected stating in her objection that, her minor son is not staying voluntarily in the house of the Opposite Party, but, the Opposite Party along with his family members have kept him forcibly there after driving her out from their house. For which, according to her, the petition under Order-7 Rule-11(d) Page 3 of 9 read with Section 151 of the C.P.C., filed by her husband is liable to be rejected. 3. After hearing from both the sides, learned Judge, Family Court, Boudh rejected the petition under Order-7, Rule-11(d) read with Section 151 of the C.P.C. of the husband as per order dated 24.01.2024 applying the ratio of the decision between Prabhu vrs. Rajani : reported in 2007(2) KLT SN-38. 4. On being aggrieved with the aforesaid order of rejection to the petition under Order-7, Rule-11(d) read with Section 151 of the C.P.C., 1908 of the husband(Opposite Party in GUAP No.07 of 2023), he(husband) challenged the same by filing this revision under Section 115 of the C.P.C. being the petitioner against his wife Santosini Khandei arraying her as Opposite party. 5. I have already heard from the learned counsels of both the sides. 6. In order to assail the impugned order passed by the learned Judge, Family Court, Boudh, the learned counsel for the petitioner(husband) relied upon the decision of the Division Bench of this Court between Dillip Kr. Behera vrs. Puspanjali Behera decided on 15.05.2015 in MATA No.34 of 2014. Page 4 of 9 On the contrary, in support of the impugned order passed by the learned Judge, Family Court, Boudh, learned counsel for the Opposite Party(wife) relied upon the decision of the Division Bench between Dheeraj vrs. Chetna Goswami of Allahabad High Court in F.A. No.373 of 2024 decided on dated 15.05.2024 and in a case between Ruchi Majoo vrs. Sanjeev Majoo decided by the Apex Court in Civil Appeal No.4435 of 2011 decided on dated 13.05.2011 and in a case between S. Prabhu vrs. Rajani R decided on 25.01.2007 in Mat Appeal No.177 of 2006 by the High Court of Kerala. 7. On the basis of the rival submissions of the learned counsels of both the sides, the crux of this revision is, whether the learned Judge, Family Court, Boudh has its territorial jurisdiction to entertain the application under the Guardians and Wards Act, 1890 vide GUAP No.07 of 2023 filed by the wife praying for appointing her as a guardian of her minor son Rudranarayan Khandei, who has not completed five years? 8. Section 9 of the Guardians and Wards Act, 1890 provides that, “an application with respect to the guardianship of the person of the minor should be made in the District Court having jurisdiction in the place where the minor ordinarily resides.” 9. As per the mandate of Section 9 of the Guardians and Wards Act, the place, were minor ordinarily resides, provides the jurisdiction to entertain an application under Guardians and Wards Act, 1890. Page 5 of 9 10. On this aspect, by taking into account the “key words”, i.e., “were the minor ordinarily resides” for the conferment of territorial jurisdiction to entertain an application under The Guardians and Wards Act, 1890, the same has already been clarified by the Hon‟ble Courts and Apex Court in the ratio of the following decisions:- (i) (ii) In a case between Sarabjit vrs. Piara Lal and others : in 2005(3) Civil Court Cases-179(P&H) reported Custody of a child, when a child is less than five years. A petition was filed by mother in a court, at the place, where, she(mother) is residing, but minor—Child is residing with grand-parents at a different place. Held, when child is less than five years is deemed to reside with mother. So, it was held that, the Court at the place, where of mother is residing has jurisdiction to try the petition for custody of the child. In a case between Dheeraj vrs. Chetna Goswami decided on dated 15.05.2024 in Frist Appeal No.373 of 2024 by the Allahabad High Court that, whether court concerned has territorial jurisdiction to entertain a petition under Section 25 of the Guardians and Wards Act, 1890 is a mixed question of law and fact. The said question cannot be determined without holding an enquiry into the factual aspects of controversy and without framing a distinctive issue in that regard. Because, scope of scrutiny at the stage of consideration of an application under Order-7, Rulle-11 of the C.P.C. is confined only to the averments made in the petition. For which, the question, whether the court has territorial jurisdiction being mixed a question of law and fact cannot be decided through an application under Order-7, Rule-11 of the C.P.C. Therefore, the court rightly rejected the application filed by the appellant/defendant under Order-7, Rule-11 of the C.P.C. (iii) In a Division Bench decision of Kerala High in a case between S. Prabhu vrs. Rajani R in Mat Appeal No.177 of 2006 decided on 25.01.2007 that, the ordinary residence of the child can be the ordinary residence of the either of the parents as well in a situation where both Page 6 of 9 the parents are living apart. Whether is it the ordinary residence of the child is a matter in issue to be looked into by taking evidence, but, now, there is no evidence on record at all in that regard, the jurisdictional aspect arising in the case has to be decided after adducing evidence on that aspect as well as on the merit of the claim. (iv) In a case between Ruchi Majoo vrs. Sanjeev Majoo decided by the Apex Court : reported in (2011) 6 SCC- 479 that, the solitary test for determining the jurisdiction of the court under Section 9 of the Guardians and Wards Act, 1890 is „the ordinary residence‟ of the minor. So, whether, the minor is residing at a given place is primarily a question of intention, which in turn is a question of fact. It may at best be a mixed question of law and fact. Unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. 11. When, it is forthcoming from the averments made in the petition of the wife vide GUAP No.07 of 2023 that, her minor son Rudranarayan Khandei has not completed five years in age and when, it is the law that, a child, who has not completed five years in age, shall be deemed to reside with the mother and when, it is the case of the petitioner/mother in GUAP No.07 of 2023 that, she(wife) has been deserted by her husband and his family members from her matrimonial house forcibly after retaining her minor son there without any voluntary intention of her minor son to stay there and when, whether the minor resides ordinarily in the house of the Opposite Party in GUAP No.07 of 2023 is not capable to be answered without any enquiry into the factual aspects of controversies Page 7 of 9 for the same between the parties without framing any distinctive issue for the same and when, the said issue can be answered/decided only after taking evidence from both the sides during enquiry/trial of GUAP No.07 of 2023 and when, at present, there is no evidence in the record on that aspect and when, the scrutiny at the stage of consideration of an application under Order-7, Rule-11 of the C.P.C. is confined only on the averments made in the petition, then at this juncture, by applying the principles of law enunciated by Hon‟ble Courts and Apex Court in the ratio of the decisions referred above in Para No.10 of this judgment, it is held that, the impugned order dated 24.01.2024 passed by the learned Judge, Family Court, Boudh rejecting the petition under Order-7, Rule- 11(d) read with Section 151 of the C.P.C., 1908 of the husband (Opposite Party in GUAP No.07 of 2023, who is the petitioner in this revision) cannot be held as erroneous. For which, the question of interfering with the same through this revision filed by the husband(petitioner in this revision) does not arise. Therefore, the decision relied upon by the learned counsel for the petitioner between Dillip Kr. Behera vrs. Puspanjali Behera in MATA No.34 of 2014 has become inapplicable to this revision at hand on law and facts for the reasons assigned above. Page 8 of 9 12. So, there is no merit in the revision filed by the petitioner. The same must fail. 13. In result, the revision filed by the petitioner is dismissed on contest, but, without cost. However, the learned Judge, Family Court, Boudh is directed to decide the GUAP No.07 of 2023 as per law on both the aspects, i.e., territorial jurisdictional aspect as well as on merit after taking evidence from both the sides as expeditiously as possible. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 17th of April, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 17-Apr-2025 15:48:43 Page 9 of 9