Heard. This is an application filed by the petitioner, who is the father of the minor son A.Sai Karthick (12 years old), seeking for a permanent custody of the minor child from the respondent, under Section 25 of the Guardians and Wards Act, 1890 (for short GAWA) read with Clause 17 of the Letters Patent read with Order 21 Rules 2 and 3 of O.S. Rules.
2.The petitioner is a resident of Chennai. The respondent, the mother of the minor child, who is having the custody of the minor son, is a permanent resident of Kotucherry near Karaikal, which comes under the Union Territory of Puducherry.
3.When this petition is filed, the Registry raised several queries, including the question of maintainability of this O.P. as query No.5, which is as follows:
"5)The ordinary residence address of the Minor is out of this Court jurisdiction. It may be stated as to how this petition is maintainable."
4.In response to the said query, the counsel for the petitioner had made the following endorsement in the court bundle, which reads as follows:
"Under Cl.17 of the Letters Patent, this High Court has jurisdiction to entertain the above O.P. for custody of minor child even permanently residing outside the jurisdiction of city of Madras, but within the territorial jurisdiction of this High Court.
This principle has been well settled in the decision of our Hon'ble High Court, reported in 1991 (1) MLJ 212, which is annexed herewith."
In the light of such endorsement, this O.P. was numbered and posted before this court.
5.The cause of action set out in paragraph 18 of the O.P., contains the following averments:
"18.The cause of action for this petition arose at Chennai within the jurisdiction of this Hon'ble Court where the petitioner resides and from where the minor Sai Karthick was taken away by the Respondent on 01.04.2005 and again subsequently on 28.04.2006; on 19.10.1995 when the petitioner and the Respondent were married at Karaikal, and thereafter the marriage was registered at Chennai on 20.10.1995; when the minor son was born on 20.10.1997; ..."
(Emphasis added)
6.Notwithstanding the endorsement and averments made by the learned counsel for the petitioner, this Court had doubts about the maintainability of the O.P. and hence directed the counsel for the petitioner to explain the jurisdiction of this Court in terms of Clause 17 of the Letters Patent.
7.The learned counsel for the petitioner in support of his submission primarily relied on the following two decisions of this Court:
a)AIR 1937 Madras 51 (Rajah of Vizianagaram Vs. Secretary of State and others)
b)1991 (1) MLJ 212 (Gautam Menon Vs. Sucharitha Gautam)
8.Since the O.P. was filed under Clause 17 of the Letters Patent, the said provision may be extracted below:-
"17.Jurisdiction as to infants and lunatics And We do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these presents." (Emphasis added)
9.Section 25 of the GAWA Act under which this O.P. was filed reads 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 his guardian, may make an order for his return, and for the purpose of engorcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian." (Emphasis added)
10.Even though in the O.P. the cause of action paragraph the petitioner had averred that the minor child was taken away by the respondent on 1.4.2005 and again subsequently on 28.04.2006, in the body of the petition, there is no reference to any such act by the respondent. In the petition, he has made averments only suitable for a petition for dissolution of marriage than for child custody. The petitioner only with a view to invoke the power of this Court under Clause 17 of the Letters Patent had made casual remarks in the paragraph relating to cause of action.
11.In view of the above, it is necessary to refer to references made about the minor Sai Karthick in various places in the original petition and they may be extracted below:
".... The petitioner submits that he is the father and natural guardian and has a preferential right to the custody of the minor son Sai Karthick, who is now nearly 12 years old and is now in the custody of the Respondent at Kotuchery. ... (para 2) ... The petitioner suffered a second heart attack on 16.04.2008. This attack was caused by the Respondent's continuous harassment of the Petitioner and his family over telephone for no rhyme and reason, besides continuous demands for settlement of properties in her name, as also her refusal to send Sai Karthick to the matrimonial home at Chennai. ...(para 6) ...The petitioner states that right through the above period the Respondent deliberately deprived the Petitioner of the company of his son Sai Karthick. The Respondent fully well knew that the Petitioner and his son were very close and that the presence of Sai Karthick during the period the petitioner's very serious illness would have been a great morale booster to the petitioner and would have in fact set him on the path to complete recovery much earlier. (para 8) ... the petitioner opines, is highly detrimental to the growth of Sai Karthick is the fact that the child is now growing up in an environment that is highly damaging and in fact dangerous to the normal development of any child. .. (para 9) ... He is residing with the Respondent's mother, the Respondent and Sai Karthick in the same house.... (para 9) ... Sri. Balaji, for more than 12 years, is also residing very close to where the Respondent is residing, as aforesaid, with her mother, younger brother and Sai Karthick. ... (para 9) The petitioner humbly submits that a few weeks ago, he requested the Respondent to send Sai Karthick to Chennai to live with him and his mother for a few days as it was then vacation time for the child. The Respondent refused to do so, but indicated that the petitioner could meet the boy at Kottucherry, Karaikal. ... (para 15)"
12.A combined reading of the above extracted passage will show that the minor child was always left in the custody of his mother for all these 12 years and is also undergoing school education in Karaikal. There is also no allegation that the child had left or was forcibly removed from Chennai in the O.P.
13.This Court with a bald assertion, cannot clutch on to a jurisdiction, which it did not have under Clause 17 of the Letters Patent. The forum convenience between the parties is at Karaikal and not the extra ordinary jurisdiction of this court especially in the absence of allegations to attract
Section 9(1) read with Section 25 of the GAWA.
14.In the first decision relied on by the counsel in Rajah of Vizianagaram v. Secretary of State, AIR 1937 Mad 51: (1936) 2 MLJ 873, a Division Bench of this Court considered the question of jurisdiction of this Court under Clause 17 of the Amended Letters Patent of 1865 read with Clause 16 of the Letters Patent of 1862 and the Charter of 1800 (of the Supreme Court of Madras) with reference to the provisions of the Guardians and Wards Act, 1890. Since Clause 17 of the Letters Patent, 1865, retained the powers vested in the High Court immediately before the publication of the Letters Patent, the Division Bench held in the said case that "what was vested in Clause 17 was what was vested under Clause 16 of the Letters Patent, 1862". Since what was vested under Clause 16 of the Letters Patent of 1862, was the same as the power of the Supreme Court at Madras and since the power conferred on the Supreme Court at Madras was just the same as the order and course observed in that part of the Great Britain called England, Venkataramana Rao, J. in his concurring opinion held as follows:-
"The question is, what is the order and course observed in England? The jurisdiction in regard to persons and properties of infants is that exercised by the Chancellor in the Court of Chancery as a part of the general delegation of the authority of the Crown virtute officii. It has therefore its foundation in the prerogative of the Crown flowing from its general power and duty as parens patriae see (1891) AC 388 Barnardo v. Mac Hug, (395). This power is exercised even it the infant is residing outside the jurisdiction of the Court of Chancery:vide 30 Ch D 324 at p.338, (an intant) (per COTTON, L.J.) and arising out of the prerogative of the Crown is not subject to any territorial limitation. All that is necessary is that at the time it is invoked the minor must be a subject of His Majesty. It is the same jurisdiction which is conferred by Clause 32."
15.The Division Bench found that the extents of jurisdiction in relation to Ordinary Original Civil Jurisdiction, Admiralty Jurisdiction, Testamentary and Intestate Jurisdiction etc., under the Madras Charter of 1800 (establishing the Supreme Court of Madras) which were retained under Letters Patent of 1862 and the Amended Letters Patent of 1865 varied. In some cases, the jurisdiction was found to be restricted as in the case of Ordinary Original Civil Jurisdiction. But in some cases, like Testamentary and Intestate Jurisdiction, the Division Bench found that it was not subject to any territorial limitation. Similarly, in the case of infants, the Division Bench held that the jurisdiction conferred was plenary and that there was no restriction either as to place or persons.
16.After referring to
<act id=O7GxPokB_szha0nWBNDI section=3>Section 3 </act>of the Guardians and Wards Act, 1890, the Division Bench held that the jurisdiction of the High Court under Clause 17 of the Letters Patent is not in the exercise of its ordinary original civil jurisdiction, but it is saved by
<act id=O7GxPokB_szha0nWBNDI section=3>Section 3.</act> Therefore ultimately the Division Bench held that the residence of the children is immaterial. The relevant portion of the judgment at page-76 is as follows:-
"The residence of the children is immaterial. Clause 17, Letters Patent does not impose as a condition the residence of the infant for the exercise of the jurisdiction thereunder."
"Under similar circumstances in 43 ER 534 (Hope v. Hope) (1854) 43 E R 534); LORD CHANCELLOR CRANWORTH made an order in respect of an infant residing in France against the mother, Ms.Hope, on the ground that she submitted herself to the jurisdiction of the Court. In 25 MLJ 661 at p.686, WHITE, C.J., observes:
If the domicile and residence of the father within the jurisdiction of the Court of Chancery in England would have been sufficient to the Court in England, I think the same facts mutatis mutandis would be sufficient to give jurisdiction here.
Again at p.687:
In the present case the statutory power as regards, the appointments of guardians for infants is given with express reference to 'the order and course observed in that part of Great Britain called England. The test seems to be, would the fact that an infant was resident out of England in itself deprive the Courts in England of power on the application of a father domiciled and resident in England to appoint a guardian of the person of the non-resident infant? The answer is surely "no".
I am therefore of opinion that on this ground also this Court has power in this case to exercise its jurisdiction under Clause 17, Letters Patent and give protection to the father and safeguard his parental rights."
17.The aforesaid decision in Rajah of Vizianagaram v. Secretary of State (supra) case was followed by Justice AR.LAKSHMANAN, as he then was, in Gautam Menon v. Sucharitha Gautam 1991 (1) MLJ 217 in a case where the minor was residing at Coimbatore.
18.Even the Division Bench of the Bombay High Court, took a similar view in re Makadeo Krishna Rupji AIR 1937 Bom. 98. It was held therein that since the Bombay High Court (like the Madras High Court) inherited the jurisdiction of the Supreme Court, it had a general jurisdiction unlimited by the provisions of the Guardians and Wards Act, 1890. That case arose out of an application for appointment of a guardian with permission to sell the undivided share of a minor in a coparcenary property, which could not be done under the Guardians and Wards Act, 1890. The Bombay Division Bench held, following an earlier Full Bench that its powers under the Letters Patent are not curtailed.
19.The Supreme Court though not in the context of Section 25 of the GAWA, but in the context of Section 28 of the GAWA, dealt with the cases in Mahadev Krishna Rupji's case (cited supra) and the Raja of Vizianagaram vs. The Secretary of State and others (cited supra) and held that Section 3 of the GAWA cannot be pressed into service for any extended jurisdiction. It is necessary to refer to the said judgment in Chandre Prabhuji Jain Temple Vs. Harikrishna reported in (1973) 2 SCC 665. The following passage found in paragraph 15 of the said judgment may be usefully extracted below:
"15. Mr Tarkunde for the appellants argued that
Section 3 of the Act preserves the inherent powers of certain High Courts to appoint a guardian and determine his powers and to sanction any alienation by the guardian of the properties of the ward, apart from the provisions of the Act. He cited In re Mahadev v. Krishna Rupji1 and Raja of Vizianagaram v. Secretary of State for India-in-Council2 and said that High Court of Madras had inherent jurisdiction to appoint a guardian and determine his powers untrammelled by the provisions of the Act. In the first of the cases above referred to, it was held by the Bombay High Court that though the Act does not sanction the appointment of a guardian in respect of undivided share of a minor in a Joint Hindu Family, the High Court of Bombay had inherent power to appoint a guardian. In the latter case, the Madras High Court held that the High Court has, under Clause 17 of the Letters Patent, 1865, jurisdiction in regard to minors, though not of British birth, resident outside the limits of the Presidency-town and its jurisdiction to act under that clause is not affected by the Act. The court also said the jurisdiction of the High Court under Clause 17 of the Latters Patent is not in the exercise of its ordinary original civil jurisdiction and it is saved by
Section 3 of the Guardian and Wards Act which says that nothing in the Act shall be construed to take away any power possessed by any High Court established under the Statutes 24 and 25 Vic. 104. It does not follow from these rulings that the principle underlying
Section 28 of the Act should not bind the High Court even while exercising its inherent powers. The principle underlying
Section 28 is that when a guardian is appointed under a will and his powers are expressly restricted by that instrument, the court must be apprised of the will and of the restrictions on his powers imposed by the testator in order to exercise its discretion to determine whether those restrictions should be removed or not. The section enacts a salutary principle for the exercise of its parental jurisdiction." (Emphasis added)
20.It is necessary to briefly refer to the various amendments which finally became Clause 17 of the Letters Patent. Clause 17 of the Letters Patent extracted above is of the Amended Letters Patent of 1865. It merely retained the power vested in this Court as on the date immediately preceding the date of publication of the Amended Letters Patent, 1865. In other words, Clause 17 of the Amended Letters Patent, 1865, retained the power vested under Clause 16 of the Letters Patent of 1862, which read as follows:-
"And we do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics, whether within or without the Presidency of Madras, as that which is now vested in the said Supreme Court at Madras."
21.Therefore, what was vested under Clause 16 of the Letters Patent of 1862 was the power vested in the Supreme Court at Madras under Clause 32 of the Madras Charter of 1800, which read as follows:-
"And we do hereby authorize the said Supreme Court of Judicature at Madras to appoint guardians and keepers for infants, and their estates, according to the order and course observed in that part of Great Britain called England"
22.Noting the change from the Clause 16 of the Letters Patent of 1862 with that of Clause 17 of the Letters Patent, 1865, V.Ramasubramanian, J. vide his decision in C.V.Ananth Padmanabhan Vs. Bindu reported in (2008) 7 MLJ 22, in paragraph 29 observed as follows:
"29.Therefore, it cannot be contended, by simply taking a blind recourse to
Section 9(1) of the Guardians and Wards Act, 1890, that this Court has no jurisdiction, especially in view of
Section 3 of the Act read with Clause 17 of the Letters Patent. I am not for a moment suggesting that this Court has sky high powers. There is a small difference in the wording of Clause 17 of the Amended Letters Patent of 1865 and Clause 16 of the Letters Patent of 1862. While Clause 16 of the Letters Patent of 1862 uses the expression "within or without the Presidency of Madras", Clause 17 of the Letters Patent of 1865 uses the expression "within the Presidency of Madras". Therefore, on a strict construction of Clause 17 of the Letters Patent, it may be possible to contend that the minor should at least be within the Presidency of Madras, so as to confer jurisdiction upon this Court."
(Emphasis added)
23.Though the power of this Court under the Letters Patent more particularly Clause 17, is saved by Section 3 of the GAWA, one has to give full meaning to both provisions. Section 3 of the GAWA reads as follows:
"3.Saving of jurisdiction of Courts of Wards and Chartered High Courts. - This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by any competent legislature, authority or person in any State to which this Act extends; and nothing in this Act shall be construed to affect, or in any way derogate from the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court." (Emphasis added)
24.Therefore, in cases where the cause of action arose either in the Presidency Town or within the Madras Presidency, this Court gets jurisdiction in terms of Clause 17. Obviously, the Union Territory of Puducherry was not part of the Madras Presidency. Admittedly, the respondent lives in Karaikal, which is a part of the Union Territory of Puducherry. The Union Territory of Puducherry came to be merged with the Indian Union only from the year 1959.
25.Therefore, invocation of power under
Article 241(3) of the Constitution (introduced by Constitution (Seventh Amendment) Act, 1956) the Union Territory of Puducherry may not arise, though this High Court was made as the High Court for the Union Territory of Puducherry by
Article 241(1). Article 241(3) of the Constitution reads as follows:
"241(3)Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by or under this Constitution, every High Court exercising jurisdiction immediately before the commencement of the Constitution (seventh Amendment) Act, 1956, in relation to any Union territory shall continue to exercise such jurisdiction in relation to that territory after such commencement." (Emphasis added)
26.Even if
Section 3 saves the jurisdiction of this Court in respect of a guardianship matter, this Court's power to have an extended operation of its jurisdiction in terms of Clause 17 of the Letters Patent only extends to the Madras Presidency and not to any other territory including the Union Territory of Puducherry.
27.When a person files a petition under the GAWA before a Court, he has to bring the issue of a minor strictly within the ambit of Section 9(1) of the GAWA, which reads as follows:
"9.Court having jurisdiction to entertain application (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." (Emphasis added)
28.Sections 9(2) and
9(3) are not relevant as they relate to guardianship over the property of the minor and that question also does not arise in this petition. Fully knowing this limitation, the petitioner has chosen to file the petition under Section 25 of the GAWA read with Clause 17 of the Letters Patent. For invoking the provisions of Section 25 of the GAWA, it has to be seen whether the minor had left the custody or was removed from the custody of a guardian of his person and then only, the Court can exercise its jurisdiction over that matter.
29.The term "ordinarily resides" has been considered by the court. The question of residence is largely a question of intention. In the case of minors no question of intention arises. But the Court will take into consideration their actual place of residence at time of the application and regard that as their ordinary place of residence.
30.In AIR 1986 Punj & Har 113 Smt. Aparna Banerjee v. Tapan Banerjee, the Punjab and Haryana High Court dealt with a case of a mother leaving husband and taking minor child with her and started residing together at another place. Father filed an application under
Section 25 where he was residing. The Court held that ordinary residence of child shall be the place where they are residing with mother. The Karnataka High Court vide its decision reported in AIR 1993 Karnataka 120 (K.C.Shashidhar v. Smt. Roopa) also took a similar view.
31.In the light of the above discussion, it can be clearly seen that the petitioner has only moved this court without there being any cause of action for this court to exercise the power either under Clause 17 of the Letters Patent or under Section 9(1) of the GAWA. The ingredients for invoking
Section 25 is absent in the petition filed by the petitioner. Instead of moving the Court at Karaikal, the petitioner has deliberately chosen to file this petition before this Court and it is nothing but an act of forum shopping.
32.This court lacks jurisdiction to deal with the issue as the invocation of Clause 17 is inappropriate in this case. Since the ingredients for bringing the petition under Sections 9(1) and 25 of GAWA are also absent, this petition cannot be maintained before this Court. If at all the petitioner has any grievance, he has to move a competent court which has jurisdiction and where the respondent resides.
33.In the light of the above, this original petition stands dismissed.
06.07.2009 Index : Yes Internet : Yes vvk Note to Registry:
The Registry is directed to return the documents filed along with the OP after replacing it with photostat copies.
K.CHANDRU, J.
vvk O.P.NO.334 OF 2009 06.07.2009