Himachal Pradesh High Court
Vijay Sharma vs Sheetal Sharma And Anr on 14 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:11335 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (FC) No. 28 of 2024
Reserved on: 05.11.2024
Date of Decision: 14.11.2024
Vijay Sharma …Appellant.
Versus
Sheetal Sharma and Anr. ...Respondents
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. Desh Raj Thakur, Advocate.
For the Respondents : Mr. M.A. Safee, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 30.11.2023 passed by learned Principal Judge, Family Court,
Shimla District Shimla (learned Trial Court) vide which the petition
seeking the custody of the minor filed by the appellant (petitioner
before learned Trial Court) was ordered to be dismissed. (Parties
shall hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the petitioner filed a petition, as amended, before the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:11335 )
learned Trial Court seeking the custody of minor Lavish Sharma. It
was asserted that the marriage between the petitioner and
respondent No.1 was solemnized as per Hindu Rites and Customs at
Sisra on 14.09.2015. Lavish Sharma was born to the parties on
02.03.2017. The differences arose between the parties and
respondent No.1 left her matrimonial home in August 2021 with the
minor. The petitioner disclosed this incident to the parents of
respondent No.1. He also called respondent No.1, who disclosed that
she was at Ambala. Petitioner brought her and the minor to his
home at Sirsa. Respondent No.2 sent a message to the petitioner on
the next day threatening him with dire consequences. The
petitioner made inquiries from respondent No.1. He subsequently
found that respondents No.1 and 2 were in a relationship before the
marriage. Respondent No.2 instigated respondent No.1 to leave her
matrimonial home. Respondent No.1 left her matrimonial home
with the child. Respondent No.1 is dependent upon respondent No.2
and she is unable to take care of the minor. The petitioner would
provide the best education to the minor by enrolling him in a
reputed school; hence, the petition.
3. The petition was opposed by filing a reply by
respondents Nos.1 and 2 admitting the relationship between the
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Neutral Citation No. ( 2024:HHC:11335 )
petitioner and respondent No.1. It was asserted that the petitioner
and his parents started torturing respondent No.1 for dowry even
though sufficient dowry was provided to them. The petitioner and
his parents never gave anything to respondent No.1 and her child.
They abused respondent No.1 and compelled her to do household
chores. They even doubted the paternity of the minor and asked for
his DNA test to determine his paternity. Respondent No.1 herself
disclosed the relationship between her and respondent No.2 to the
petitioner. She also stated that she was not in contact with
respondent No.2 after her marriage. The petitioner did not permit
the minor to attend his essential class test. The welfare of the
minor lies with his mother. Respondent No.1 is a postgraduate in
computer sciences and is not dependent upon any person. She has
worked as a teacher in several schools and she can provide a
comfortable life to the minor. Respondent No.2 has his boutique at
Mumbai. Therefore, it was prayed that the present petition be
dismissed.
4. A rejoinder denying the contents of the replies and
affirming those of the petition was also filed.
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Neutral Citation No. ( 2024:HHC:11335 )
5. Initially, the petition was filed against three
respondents but the name of respondent No.3 was ordered to be
deleted vide order dated 30.06.2023.
6. Learned Trial Court framed the following issues on
22.07.2023:
“1. Whether the petitioner is entitled for custody of the
minor child and he deserves to be appointed as Guardian
of minor child Lavish Sharma, as alleged? OPP
2. Relief.”
7. The parties were called upon to produce the evidence
and the petitioner examined himself (PW1), Kushal Sharma (PW2)
and Ved Prakash (PW3). Respondent No.1 (Sheetal Sharma)
examined herself as (RW1).
8. Learned Trial Court held that the father is a natural
guardian of a Hindu minor, however, when he neglects the welfare
of the minor, the Court can hand over the custody to the mother.
The mother stated in her cross-examination that she is residing
with respondent No.2 but has not changed her religion. She also
stated that she was M.Sc. (Computer Science) and capable of taking
care of the minor. The minor was aged 6 years and has been
residing with his mother since his birth. He was emotionally
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Neutral Citation No. ( 2024:HHC:11335 )
attached to his mother and the mother was the best person to take
care of the minor; hence, the petition was dismissed.
9. Being aggrieved from the judgment passed by the
learned Trial Court, the petitioner has filed the present appeal
asserting that the learned Trial Court failed to appreciate the
material on record. The mother did not have any independent
income and the learned Trial Court erred in relying upon her
testimony that she was in a position to take care of the minor.
Respondent No.1 had not completed her M.Sc (Computer Science)
and she made a false statement before the Court. The mother had
taken the minor with her in the mid-session and the minor lost one
precious academic year. The father of respondent No.1 also
supported the version of the petitioner and falsified the version of
respondent No.1 that she was being harassed for dowry. The
respondent No.1 failed to take care of the minor. The minor has
been deprived of the love, affection and care of his father and
grandparents. Respondent No.1 is residing with respondent No.2
without marriage. The religion of the minor and respondent No.2 is
different and the minor cannot be allowed to be brought up in these
circumstances; hence, it was prayed that the present appeal be
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Neutral Citation No. ( 2024:HHC:11335 )
allowed and the judgment passed by the learned Trial Court be set
aside.
10. We have heard Mr. Desh Raj Thakur, learned counsel for
the petitioner and Mr. M.A. Safee, learned counsel for the
respondents.
11. Mr. Desh Raj Thakur, learned counsel for the petitioner
submitted that the learned Trial Court erred in dismissing the
petition filed by the petitioner. The welfare of the minor is the
paramount consideration while deciding his custody. Learned Trial
Court failed to appreciate that the welfare of the minor is with the
father and not with the mother who is unable to maintain him
properly. Respondent No.1 had made false allegations regarding her
harassment. She is residing with respondent No.2 without
marrying him. Therefore, he prayed that the present appeal be
allowed and the judgment passed by the learned Trial Court be set
aside. He relied upon the judgments of Hon’ble Supreme Court in
Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413: 2008 SCC OnLine
SC 1216, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009)
1 SCC (Civ) 1: 2008 SCC OnLine SC 1722, Madan Kansagra v. Perry
Kansagra, (2021) 12 SCC 289 : (2023) 2 SCC (Civ) 512: 2020 SCC
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Neutral Citation No. ( 2024:HHC:11335 )
OnLine SC 887 and Manipur High Court in Jaswant Kaur versus
Chanan Singh, AIR 1962 Manipur 60 in support of his submission.
12. Mr. M.A. Safee, learned counsel for the respondents
submitted that the welfare of the minor is the paramount
consideration while deciding his custody. The learned Trial Court
had rightly held that the welfare of the minor is with the mother
and not with the father. He relied upon the judgments of Hon’ble
Supreme Court in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112
and Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67: (2020) 2 SCC
(Civ) 39: 2020 SCC OnLine SC 50. He also submitted that the Court at
Shimla did not have jurisdiction as the minor was residing at Sirsa
before he was taken by her mother. He also relied upon the
judgments of Kamlesh versus Ram Paul, ILR 1973 P&H (1), Sabahat
Sanna versus Dr. Shabir Ahmed in MA No. 29 of 2024 decided on
24.09.2024 (J&K) and Dheeraj versus Chetna Goswami, 2024:
AHC:87786-DB in support of his submission.
13. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
14. Before adverting to the merits of the case, it is necessary
to dispose of an application (CMP No. 13516 of 2024) filed by the
applicant/appellant under Order 41 Rule 27 of CPC for the
8
Neutral Citation No. ( 2024:HHC:11335 )production of additional documents. It has been asserted that the
applicant came across a result-cum-detailed marks card of
respondent No.1 regarding her M.Sc (Computer Science), which
shows that respondent No.1 has not passed the second-year
examination. Learned Trial Court had relied upon the fact that
respondent No.1 is a postgraduate in Computer Sciences. The
evidence is necessary to falsify this plea. The receipt of the fee paid
by the petitioner and his income tax return are also essential. These
could not be produced despite the due diligence; hence, the
application.
15. No reply was filed to the application.
16. It was laid down by the Hon’ble Supreme Court in Sanjay
Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247: (2022) 3 SCC
(Civ) 699: 2022 SCC OnLine SC 292 that the Appellate Court should
not generally travel beyond the record of the Trial Court but an
exception has been created under Order 41 Rule 27 of CPC. It was
observed at page 249: –
“7. It is true that the general principle is that the appellate
court should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27CPC enables the appellate court to
take additional evidence in exceptional circumstances. It
may also be true that the appellate court may permit
additional evidence if the conditions laid down in this Rule
9
Neutral Citation No. ( 2024:HHC:11335 )are found to exist and the parties are not entitled, as of right,
to the admission of such evidence. However, at the same
time, where the additional evidence sought to be adduced
removes the cloud of doubt over the case and the evidence
has a direct and important bearing on the main issue in the
suit and the interest of justice clearly renders it imperative
that it may be allowed to be permitted on record, such
application may be allowed. Even, one of the circumstances
in which the production of additional evidence under Order
41 Rule 27 CPC by the appellate court is to be considered is,
whether or not the appellate court requires the additional
evidence so as to enable it to pronounce judgment or for any
other substantial cause of like nature.
8. As observed and held by this Court in A. Andisamy
Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A.
Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514],
the admissibility of additional evidence does not depend
upon the relevancy to the issue on hand, or the fact, whether
the applicant had an opportunity for adducing such evidence
at an earlier stage or not, but it depends upon whether or not
the appellate court requires the evidence sought to be
adduced to enable it to pronounce judgment or for any other
substantial cause. It is further observed that the true test,
therefore is, whether the appellate court is able to pronounce
judgment on the materials before it without taking into
consideration the additional evidence sought to be adduced.”
17. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC
76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where the
documents were not filed before the learned Courts below and no
application was filed for leading additional evidence, the
documents cannot be taken on record. It was observed at page 81:
“13. At this stage, it would be pertinent to point out that the
appellant-defendants, during the course of this appeal, have
filed a number of applications to place on record certain
10
Neutral Citation No. ( 2024:HHC:11335 )documents which were not on the record of the trial court.
No explanation has been given in any of these applications as
to why these documents were not filed in the trial court.
These documents cannot be looked into and entertained at
this stage. The defendants did not file these documents
before the trial court. No application was filed under Order 41
Rule 27 of the Code of Civil Procedure, 1908 for leading
additional evidence before the first appellate court or even
before the High Court. Even the applications filed before us
do not set out any reasons for not filing these documents
earlier and do not meet the requirements of Order 41 Rule 27
of the Code of Civil Procedure. Hence, the applications are
rejected and the documents cannot be taken into
consideration.”
18. It was held in Jagdish Prasad Patel v. Shivnath, (2019) 6
SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the
additional evidence can be led when the Trial Court had refused to
admit the evidence, the evidence was not available despite the
exercise of due diligence and the evidence is required by the Court
to effectively adjudicate the dispute pending before it. It was
observed at page 96: –
“29. Under Order 41 Rule 27 CPC, the production of additional
evidence, whether oral or documentary, is permitted only
under three circumstances which are:
(I) where the trial court had refused to admit the evidence
though it ought to have been admitted;
(II) the evidence was not available to the party despite the
exercise of due diligence; and(III) the appellate court required the additional evidence
so as to enable it to pronounce judgment or for any other
substantial cause of like nature.
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Neutral Citation No. ( 2024:HHC:11335 )
An application for the production of additional evidence
cannot be allowed if the appellant was not diligent in
producing the relevant documents in the lower court.
However, in the interest of justice and when satisfactory
reasons are given, the court can receive additional
documents.”
19. It was laid down by the Hon’ble Supreme Court in Sanjay
Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 that additional
evidence can be taken if the conditions laid down under Order 41
Rule 27 are satisfied. It was observed: –
7. It is true that the general principle is that the appellate
court should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27CPC enables the appellate court to
take additional evidence in exceptional circumstances. It may
also be true that the appellate court may permit additional
evidence if the conditions laid down in this Rule are found to
exist and the parties are not entitled, as of right, to the
admission of such evidence. However, at the same time,
where the additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence has a direct
and important bearing on the main issue in the suit and the
interest of justice clearly renders it imperative that it may be
allowed to be permitted on record, such application may be
allowed. Even, one of the circumstances in which the
production of additional evidence under Order 41 Rule 27CPC
by the appellate court is to be considered is, whether or not
the appellate court requires the additional evidence so as to
enable it to pronounce judgment or for any other substantial
cause of like nature.
20. A similar view was taken in North Eastern Railway Admn.
vs. Bhagwan Das, (2008) 8 SCC 511, wherein it was observed: –
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Neutral Citation No. ( 2024:HHC:11335 )
“13. Though the general rule is that ordinarily the appellate
court should not travel outside the record of the lower court
and additional evidence, whether oral or documentary is not
admitted but Section 107 CPC, which carves out an exception
to the general rule, enables an appellate court to take
additional evidence or to require such evidence to be taken
subject to such conditions and limitations as may be
prescribed. These conditions are prescribed under Order 41
Rule 27 CPC. Nevertheless, the additional evidence can be
admitted only when the circumstances as stipulated in the
said Rule are found to exist. The circumstances under which
additional evidence can be adduced are:
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted [clause (a) of sub-rule (1)], or
(ii) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within the knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed [clause (aa), inserted by Act 104 of 1976], or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause
[clause (b) of sub-rule (1)].
14. It is plain that under clause (b) of sub-rule (1) of Rule 27
Order 41 CPC, with which we are concerned in the instant
case, evidence may be admitted by an appellate authority if it
“requires” to enable it to pronounce judgment “or for any
other substantial cause”. The scope of the Rule, in particular
of clause (b), was examined way back in 1931 by the Privy
Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC
143]. While observing that the provisions of Section 107 as
elucidated by Order 41 Rule 27 are clearly not intended to
allow the litigant, who has been unsuccessful in the lower
court, to patch up the weak parts of his case and fill up
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Neutral Citation No. ( 2024:HHC:11335 )
omissions in the court of appeal, it was observed as follows :
(AIR p. 148)
“… Under clause (1)(b) it is only where the appellate
court ‘requires’ it (i.e. finds it needful) that additional
evidence can be admitted. It may be required to enable
the court to pronounce judgment or for any other
substantial cause, but in either case, it must be the
court that requires it. This is the plain grammatical
reading of the sub-clause. The legitimate occasion for
the exercise of this discretion is not whenever before
the appeal is heard a party applies to adduce fresh
evidence, but ‘when on examining the evidence as it
stands some inherent lacuna or defect becomes
apparent’.”
15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR
1963 SC 1526: (1964) 2 SCR 35] a Constitution Bench of this
Court while reiterating the aforenoted observations in
Parsotim case [AIR 1931 PC 143] pointed out that the appellate
court has the power to allow additional evidence not only if it
requires such evidence “to enable it to pronounce judgment”
but also for “any other substantial cause”. There may well be
cases where even though the court finds that it is able to
pronounce judgment on the state of the record as it is, and
so, it cannot strictly say that it requires additional evidence
“to enable it to pronounce judgment”, it still considers that
in the interest of justice something which remains obscure
should be filled up so that it can pronounce its judgment in a
more satisfactory manner. Thus, the question whether
looking into the documents, sought to be filed as additional
evidence, would be necessary to pronounce judgment in a
more satisfactory manner, has to be considered by the Court
at the time of hearing of the appeal on merits.”
21. The applicant/appellant is seeking to produce a copy of
the result-cum-detailed marks card to show that respondent No.1
had not passed the examination. This document will not assist the
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Neutral Citation No. ( 2024:HHC:11335 )
Court in determining the controversy between the parties since
even if a person has failed in a particular year, it cannot lead to an
inference that he/she had not passed the examination thereafter. In
the absence of the result of the final examination, it is difficult to
rely upon the result of the intermediate class to conclude that a
person had not qualified for the course undertaken by him/her.
Further, the document is sought to be produced to displace the
finding recorded by the learned Trial Court that respondent No.1 is
a postgraduate in Computer Sciences and capable of taking care of
the minor. It was laid down by the Hon’ble Supreme Court in N.
Kamalam v. Ayyasamy, (2001) 7 SCC 503 = 2001 SCC OnLine SC 905
that the additional evidence cannot be led to fill in the lacuna left
before the learned Trial Court. It was observed at page 514:
“19. Incidentally, the provisions of Order 41 Rule 27 have not
been engrafted in the Code so as to patch up the weak points
in the case and to fill up the omission in the court of appeal
— it does not authorise any lacunae or gaps in evidence to be
filled up. The authority and jurisdiction conferred on to the
appellate court to let in fresh evidence is restricted to the
purpose of pronouncement of judgment in a particular way.
This Court in Municipal Corpn. of Greater Bombay v. Lala
Pancham [AIR 1965 SC 1008: 67 Bom LR 782] has been candid
enough to record that the requirement of the High Court
must be limited to those cases where it found it necessary to
obtain such evidence for enabling it to pronounce judgment.
In para 9 of the judgment, this Court observed: (AIR p. 1012)
“This provision does not entitle the High Court to let in
fresh evidence at the appellate stage where even without
15
Neutral Citation No. ( 2024:HHC:11335 )such evidence it can pronounce judgment in a case. It does
not entitle the appellate court to let in fresh evidence only
for the purpose of pronouncing judgment in a particular
way. In other words, it is only for removing a lacuna in the
evidence that the appellate court is empowered to admit
additional evidence. The High Court does not say that
there is any such lacuna in this case. On the other hand,
what it says is that certain documentary evidence on
record supports ‘in a large measure’ the plaintiffs’
contention about fraud and mala fides. We shall deal with
these documents presently but before that, we must point
out that the power under clause (b) of sub-rule (1) of Rule
27 cannot be exercised for adding to the evidence already
on record except upon one of the grounds specified in the
provision.”
Further in Pramod Kumari Bhatia v. Om Prakash
Bhatia [(1980) 1 SCC 412: AIR 1980 SC 446] this Court also in
more or less an identical situation laid down that since an
application to the High Court has been made very many years
after the filing of the suit and also quite some years after the
appeal had been filed before the High Court, the question of
interfering with the discretion exercised by the High Court in
refusing to receive additional evidence at that stage would
not arise. The time lag in the matter under consideration is
also enormous and the additional evidence sought to be
produced was as a matter of fact after a period of 10 years
after the filing of the appeal. Presently, the suit was
instituted in the year 1981 and the decree therein was passed
in 1983. The first appeal was filed before the High Court in
April 1983 but the application for permission to adduce
additional evidence came to be made only in August 1993.
Needless to record that the courts shall have to be cautious
and must always act with great circumspection in dealing
with the claims for letting in additional evidence
particularly, in the form of oral evidence at the appellate
stage and that too, after a long lapse of time. In our view, a
plain reading of Order 41 Rule 27 would depict that the
rejection of the claim for production of additional evidence
after a period of 10 years from the date of filing of the appeal,
as noticed above, cannot be termed to be erroneous or an
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Neutral Citation No. ( 2024:HHC:11335 )
illegal exercise of discretion. The three limbs of Rule 27 do
not stand attracted. The learned trial Judge while dealing
with the matter has, as a matter of fact, very strongly
commented upon the lapse and failure on the part of the
plaintiffs even to summon the attestors to the will and in our
view contextually, the justice of the situation does not
warrant any interference. The attempt, the High Court
ascribed it to be a stage-managed affair in order to somehow
defeat the claim of the respondents — and having had the
privilege of perusal of record we lend our concurrence
thereto and the finding of the High Court cannot be found
fault with for rejecting the prayer of the appellants for
additional evidence made in the belated application. In that
view of the matter, the first issue is answered in the negative
and thus against the plaintiffs, being the appellants herein.
22. In the present case also the document is sought to be
produced to displace the finding recorded by the learned Trial Court
and the same cannot be taken on record as per the binding
precedent of the Hon’ble Supreme Court.
23. The other documents, namely the receipt and the
income tax return were with the applicant/appellant and no reason
has been assigned as to why the documents could not be produced
before the learned Trial Court. Merely mentioning that the
documents could not be produced despite the exercise of due
diligence is not sufficient and it was to be mentioned what due
diligence was exercised to produce the documents sought to be
produced before this Court. Therefore, these documents do not
satisfy the requirement of Order 41 Rule 27 of CPC and cannot be
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Neutral Citation No. ( 2024:HHC:11335 )
taken on record. Consequently, the present application fails and the
same is dismissed.
24. It was submitted that the Courts at Shimla did not have
the territorial jurisdiction and learned Trial Court erred in
entertaining the suit. This submission is not acceptable. No plea
was taken before the learned Trial Court that it had no jurisdiction.
Section 21 of the CPC provides that no objection to the place of
suing shall be allowed by any Appellate or Revisional Court unless
such objection was taken in the Court of first instance at the earliest
possible opportunity and in all cases before the settlement of the
issuance and unless there is a consequent failure of justice. It was
laid down by the Hon’ble Supreme Court in Om Prakash Agarwal v.
Vishan Dayal Rajpoot, (2019) 14 SCC 526: (2020) 1 SCC (Civ) 731: 2018
SCC OnLine SC 1942 that the objection to the jurisdiction has to be
taken at the first instance and a decree passed by the Court cannot
be reversed on technical grounds. It was observed at page 554:
“Issue (iii)
56. It is the submission of the learned counsel for the
appellant that even if the Additional District Judge was not
competent to decide the small causes suit on 22-10-2016,
the judgment of the Additional District Judge was not liable
to be interfered with by the Revisional Court in view of
Section 21 of the Code of Civil Procedure. Section 21 of the
Code of Civil Procedure relates to objection to jurisdiction.
Section 21 of the Code of Civil Procedure is as follows:
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Neutral Citation No. ( 2024:HHC:11335 )
“21. Objections to jurisdiction. –(1) No objection as to
the place of suing shall be allowed by any appellate or
Revisional Court unless such objection was taken in the
court of first instance at the earliest possible opportunity
and in all cases where issues are settled at or before such
settlement, and unless there has been a consequent
failure of justice.
(2) No objection as to the competence of a court with
reference to the pecuniary limits of its jurisdiction shall
be allowed by any appellate or Revisional Court unless
such objection was taken in the court of first instance at
the earliest possible opportunity, and, in all cases where
issues are settled, at or before such settlement, and unless
there has been a consequent failure of justice.
(3) No objection as to the competence of the executing
court with reference to the local limits of its jurisdiction
shall be allowed by any appellate or Revisional Court
unless such objection was taken in the executing court at
the earliest possible opportunity, and unless there has
been a consequent failure of justice.”
57. The policy underlying Section 21 of the Code of Civil
Procedure is that when the case has been tried by a court on
merits and the judgment rendered, it should not be liable to
be reversed purely on technical grounds unless it has
resulted in failure of justice. The provisions akin to Section
21 are also contained in Section 11 of the Suit Valuation Act,
1887 and Section 99 of the Code of Civil Procedure. This
Court had the occasion to consider the principle behind
Section 21, Code of Civil Procedure and Section 11 of the Suit
Valuation Act, 1887 in Kiran Singh v. Chaman Paswan [Kiran
Singh v. Chaman Paswan, AIR 1954 SC 340] . In para 7 of the
judgment following was laid down: (AIR p. 342)
“7. … The policy underlying Sections 21 and 99 of the
Civil Procedure Code and Section 11 of the Suits Valuation
Act is the same, namely, that when a case had been tried
by a court on the merits and judgment rendered, it should
not be liable to be reversed purely on technical grounds,
unless it had resulted in failure of justice, and the policy
of the legislature has been to treat objections to
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Neutral Citation No. ( 2024:HHC:11335 )
jurisdiction both territorial and pecuniary as technical
and not open to consideration by an appellate court,
unless there has been a prejudice on the merits. The
contention of the appellants, therefore, that the decree
and judgment of the District Court, Monghyr, should be
treated as a nullity cannot be sustained under Section 11 of
the Suits Valuation Act.”
58. One more submission which was raised in the said
appeal was considered by this Court. One of the submissions
of the appellant who had instituted the suit in the
subordinate court was that as per the revised valuation, the
appeal against the decree of the subordinate Judge did not lie
before the District Court but to the High Court, hence, the
judgment of the District Judge in appeal should be ignored.
The appeal in the High Court be treated as the first appeal. It
was contended that the appellant has been prejudiced in the
above manner. Rejecting the above submissions, this Court
laid down the following in paras 11 and 12: (Kiran Singh
case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], AIR p.
343)
“11. … This argument proceeds on a misconception.
The right of appeal is no doubt a substantive right, and its
deprivation is a serious prejudice, but the appellants have
not been deprived of the right of appeal against the
judgment of the Subordinate Court. The law does provide
an appeal against that judgment to the District Court, and
the plaintiffs have exercised that right. Indeed, the
undervaluation has enlarged the appellants’ right of
appeal, because while they would have had only a right of
one appeal and that to the High Court if the suit had been
correctly valued, by reason of the undervaluation they
obtained the right to two appeals, one to the District Court
and another to the High Court. The complaint of the
appellants really is not that they had been deprived of a
right of appeal against the judgment of the subordinate
court, which they have not been, but that an appeal on the
facts against that judgment was heard by the District
Court and not by the High Court. This objection therefore
amounts to this that a change in the forum of appeal is by
20
Neutral Citation No. ( 2024:HHC:11335 )
itself a matter of prejudice for the purpose of Section 11 of
the Suits Valuation Act.
12. The question, therefore, is, can a decree passed on
appeal by a court which had jurisdiction to entertain it
only by reason of undervaluation, be set aside on the
ground that on a true valuation, the court was not
competent to entertain the appeal? Three High Courts
have considered the matter in Full Benches, and have
come to the conclusion that mere change of forum is not a
prejudice within the meaning of Section 11 of the Suits
Valuation Act. Vide Kelu Achan v. Cheriya Parvathi
Nethiar [Kelu Achan v. Cheriya Parvathi Nethiar, 1923 SCC
OnLine Mad 356: ILR (1923) 46 Mad 631], Moolchand
Motilal v. Ram Kishen [Moolchand Motilal v. Ram Kishen,
1933 SCC OnLine All 2: ILR (1933) 55 All 315]
and Ramdeo v. Raj Narain [Ramdeo v. Raj Narain, 1948 SCC
OnLine Pat 91: ILR (1948) 27 Pat 1091]. In our judgment,
the opinion expressed in these decisions is correct.”
59. The above principle has been reiterated by this Court
in Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, AIR
1962 SC 199] and Bahrein Petroleum Co. Ltd. v. P.J.
Pappu [Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC
634].
60. This Court in R.S.D.V. Finance Co. (P) Ltd. v. Shree
Vallabh Glass Works Ltd. [R.S.D.V. Finance Co. (P) Ltd. v. Shree
Vallabh Glass Works Ltd., (1993) 2 SCC 130] had again
considered Section 21 of the Code of Civil Procedure. In paras
7 and 8, the following has been laid down: (SCC p. 136)
“7. … It may be further noted that the learned Single
Judge trying the suit had recorded a finding that the
Bombay Court had jurisdiction to entertain and decide the
suit. Sub-section (1) of Section 21 of the Code of Civil
Procedure provides that no objection as to the place of
suing shall be allowed by any appellate or Revisional
Court unless such objection was taken in the court of first
instance at the earliest possible opportunity and in all
cases where issues are settled at or before such settlement
and unless there has been a consequent failure of justice.
The above provision clearly lays down that such objection
21
Neutral Citation No. ( 2024:HHC:11335 )
as to the place of suing shall be allowed by the appellate or
Revisional Court subject to the following conditions:
(i) that such objection was taken in the court of first
instance at the earliest possible opportunity;
(ii) in all cases where issues are settled then at or
before such settlement of issues;
(iii) there has been a consequent failure of justice.
8. In the present case though the first two conditions
are satisfied but the third condition of failure of justice is
not fulfilled. As already mentioned above there was no
dispute regarding the merits of the claim. The defendant
has admitted the deposit of Rs 10,00,000 by the plaintiff,
as well as the issuing of the five cheques. We are thus
clearly of the view that there is no failure of justice to the
defendant by decreeing of the suit by the learned Single
Judge of the Bombay High Court, on the contrary, it would
be totally unjust and a failure of justice to the plaintiff in
case such objection relating to jurisdiction is to be
maintained as allowed by the Division Bench of the High
Court in its appellate jurisdiction.”
61. In Harshad Chiman Lal Modi v. DLF Universal
Ltd. [Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7
SCC 791], this Court had again considered Section 21 and
other provisions of the Code of Civil Procedure. In para 30,
the following has been laid down: (SCC pp. 803-04)
“30. … The jurisdiction of a court may be classified into
several categories. The important categories are (i)
territorial or local jurisdiction; (ii) pecuniary jurisdiction;
and (iii) jurisdiction over the subject matter. So far as
territorial and pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be taken at the
earliest possible opportunity and in any case at or before
settlement of issues. The law is well settled on the point
that if such an objection is not taken at the earliest, it
cannot be allowed to be taken at a subsequent stage.
Jurisdiction as to subject matter, however, is totally
distinct and stands on a different footing. Where a court
has no jurisdiction over the subject matter of the suit by
22
Neutral Citation No. ( 2024:HHC:11335 )
reason of any limitation imposed by statute, charter or
commission, it cannot take up the cause or matter. An
order passed by a court having no jurisdiction is a
nullity.”
62. Again, in Subhash Mahadevasa Habib v. Nemasa
Ambasa Dharmadas [Subhash Mahadevasa Habib v. Nemasa
Ambasa Dharmadas, (2007) 13 SCC 650], this Court held that
there is a distinction between lack of inherent jurisdiction
and objection to territorial and pecuniary jurisdiction. This
Court noticed the amendments made in Section 21 in the year
1976. The following was stated in paras 34, 37 and 41: (SCC
pp. 666-67 & 669)
“34. It may be noted that Section 21 provided that no
objection as to the place of the suing can be allowed by
even an appellate or Revisional Court unless such
objection was taken in the court of first instance at the
earliest possible opportunity and unless there has been a
consequent failure of justice. In 1976, the existing section
was numbered as sub-section (1) and sub-section (2) was
added relating to pecuniary jurisdiction by providing that
no objection as to the competence of a court with
reference to the pecuniary limits of its jurisdiction shall
be allowed by any appellate or Revisional Court unless
such objection had been taken in the first instance at the
earliest possible opportunity and unless there had been a
consequent failure of justice. …
***
37. As can be seen, Amendment Act 104 of 1976
introduced sub-section (2) relating to pecuniary
jurisdiction and put it on a par with the objection to
territorial jurisdiction and the competence to raise an
objection in that regard even in an appeal from the very
decree. This was obviously done in the light of the
interpretation placed on Section 21 of the Code as it
existed and Section 11 of the Suits Valuation Act by this
Court in Kiran Singh v. Chaman Paswan [Kiran
Singh v. Chaman Paswan, AIR 1954 SC 340] followed
by Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath,
AIR 1962 SC 199] and Bahrein Petroleum Co. Ltd. v. P.J.
23
Neutral Citation No. ( 2024:HHC:11335 )
Pappu [Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC
634]. Therefore, there is no justification in understanding
the expression “objection as to place of suing” occurring
in Section 21-A as being confined to an objection only in
the territorial sense and not in the pecuniary sense. Both
could be understood, especially in the context of the
amendment to Section 21 brought about by the
Amendment Act, as an objection to place of suing.
***
41. In light of the above, it is clear that no objection to
the pecuniary jurisdiction of the court which tried OS No.
61 of 1971 could be raised successfully even in an appeal
against that very decree unless it had been raised at the
earliest opportunity and a failure of justice or prejudice
was shown. Obviously, therefore, it could not be
collaterally challenged. That too not by the plaintiffs
therein, but by a defendant whose alienation was
unsuccessfully challenged by the plaintiffs in that suit.
63. Now, reverting back to the facts of this case it is apparent
from the judgment dated 22-10-2016 of the Additional
District Judge, that no objection to the competence of the
Additional District Judge to decide the case was taken by any
of the parties. No objection having been taken to the
pecuniary jurisdiction of the Additional District Judge;
Section 21 of the Civil Procedure Code comes into play. Sub-
section (2) of Section 21 provides that no objection as to the
competence of the court with reference to the pecuniary
limits of the jurisdiction shall be allowed by any appellate or
Revisional Court unless conditions mentioned therein are
fulfilled. No objection has been raised by the respondent
tenant regarding the competence of the court. Sub-section
(2) precludes the revisionist to raise any objection regarding
the competence of the court and further Revisional Court
ought not to have allowed such objection regarding the
competence of the Court of Additional District Judge to
decide the suit. The respondent tenant did not raise any
objection regarding the competence of the court and took a
chance to obtain judgments in his favour on merits, he
cannot be allowed to turn around and contend that the Court
24
Neutral Citation No. ( 2024:HHC:11335 )
of Additional District Judge had no jurisdiction to try the
small cause suit and the judgment is without jurisdiction and
nullity. Section 21 has been enacted to thwart any such
objection by an unsuccessful party who did not raise any
objection regarding the competence of the court and allowed
the matter to be heard on merits. Further, in deciding the
small cause suit by the Additional District Judge, the tenant
has not proved that there has been a consequent failure of
justice.”
25. This position was reiterated in Sneh Lata Goel v.
Pushplata, (2019) 3 SCC 594: (2019) 2 SCC (Civ) 219: 2019 SCC OnLine SC
45 wherein it was held at page 99:
16. The Court in Kiran Singh case [Kiran Singh v. Chaman
Paswan, AIR 1954 SC 340] then proceeded to examine the
effect of Section 11 of the Suits Valuation Act, 1887 on this
fundamental principle. This Court held thus: (AIR p. 342,
para 7)
“7. Section 11 enacts that notwithstanding anything in
Section 578 of the Code of Civil Procedure, an objection
that a court which had no jurisdiction over a suit or appeal
had exercised it by reason of overvaluation or
undervaluation, should not be entertained by an appellate
court, except as provided in the section … a decree passed
by a court, which would have had no jurisdiction to hear a
suit or appeal but for overvaluation or undervaluation, is
not to be treated as, what it would be but for the section,
null and void, and that an objection to jurisdiction based
on overvaluation or undervaluation, should be dealt with
under that section and not otherwise.
The reference to Section 578, now Section 99 CPC, in the
opening words of the section is significant. That section,
while providing that no decree shall be reversed or varied
in appeal on account of the defects mentioned therein
when they do not affect the merits of the case, except
from its operation defects of jurisdiction. Section 99
therefore gives no protection to decrees passed on merits,
25
Neutral Citation No. ( 2024:HHC:11335 )
when the courts which passed them lacked jurisdiction as
a result of overvaluation or undervaluation. It is with a
view to avoid this result that Section 11 was enacted. It
provides that objections to the jurisdiction of a court
based on overvaluation or undervaluation shall not be
entertained by an appellate court except in the manner
and to the extent mentioned in the section. It is a self-
contained provision complete in itself, and no objection
to jurisdiction based on overvaluation or undervaluation
can be raised otherwise than in accordance with it.
With reference to objections relating to territorial
jurisdiction, Section 21 of the Civil Procedure Code enacts
that no objection to the place of suing should be allowed by
an appellate or Revisional Court unless there was a
consequent failure of justice. It is the same principle that has
been adopted in Section 11 of the Suits Valuation Act with
reference to pecuniary jurisdiction. The policy underlying
Sections 21 and 99 of the Civil Procedure Code and Section 11
of the Suits Valuation Act is the same, namely, that when a
case had been tried by a court on the merits and judgment
rendered, it should not be liable to be reversed purely on
technical grounds, unless it had resulted in failure of justice,
and the policy of the legislature has been to treat objections to
jurisdiction both territorial and pecuniary as technical and
not open to consideration by an appellate court, unless there
has been a prejudice on the merits.”
(emphasis supplied)
17. Dealing with the question of whether a decree passed on
appeal by a court which had jurisdiction to entertain it only
by reason of undervaluation or overvaluation can be set aside
on the ground that on a true valuation that court was not
competent to entertain the appeal, the Court held that a mere
change of forum is not “prejudice” within Section 11 of the
Suits Valuation Act. This Court held thus: (Kiran Singh
case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], AIR pp.
343-44, para 12)
“12. … it is impossible on the language of the section to
come to a different conclusion. If the fact of an appeal
being heard by a subordinate court or District Court where
26
Neutral Citation No. ( 2024:HHC:11335 )
the appeal would have lain to the High Court if the correct
valuation had been given, is itself a matter of prejudice,
then the decree passed by the subordinate court or the
District Court must, without more, be liable to be set
aside, and the words ‘unless the overvaluation or
undervaluation thereof has prejudicially affected the
disposal of the suit or appeal on its merits’ would become
wholly useless. These words clearly show that the decrees
passed in such cases are liable to be interfered with in an
appellate court, not in all cases and as a matter of course, but
only if prejudice such as is mentioned in the section results.
And the prejudice envisaged by that section therefore
must be something other than the appeal being heard in a
different forum.
A contrary conclusion will lead to the surprising result that
the section was enacted with the object of curing defects of
jurisdiction arising by reason of overvaluation or
undervaluation, but that, in fact, this object has not been
achieved. We are therefore clearly of opinion that the
prejudice contemplated by the section is something
different from the fact of the appeal having been heard in
a forum which would not have been competent to hear it
on a correct valuation of the suit as ultimately
determined.”
(emphasis supplied)
18. The Court in Kiran Singh case [Kiran Singh v. Chaman
Paswan, AIR 1954 SC 340] disallowed the objection to
jurisdiction on the ground that no objection was raised at the
first instance and that the party filing the suit was precluded
from raising an objection to jurisdiction of that court at the
appellate stage. This Court concluded thus: (AIR p. 345, para
16)
“16. … If the law were that the decree of a court which
would have had no jurisdiction over the suit or appeal but
for the overvaluation or undervaluation should be treated
as a nullity, then of course, they would not be estopped
from setting up the want of jurisdiction in the court by the
fact of their having themselves invoked it. That, however,
27
Neutral Citation No. ( 2024:HHC:11335 )
is not the position under Section 11 of the Suits Valuation
Act.”
Thus, where the defect in the jurisdiction is of the kind which
falls within Section 21 CPC or Section 11 of the Suits Valuation
Act, 1887, an objection to jurisdiction cannot be raised except
in the manner and subject to the conditions mentioned
thereunder. Far from helping the case of the respondent, the
judgment in Kiran Singh [Kiran Singh v. Chaman Paswan, AIR
1954 SC 340] holds that an objection to territorial jurisdiction
and pecuniary jurisdiction is different from an objection to
jurisdiction over the subject matter. An objection to the want
of territorial jurisdiction does not travel to the root of or to
the inherent lack of jurisdiction of a civil court to entertain
the suit.
19. In Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath,
AIR 1962 SC 199], a person filed a suit on the original side of
the High Court of Judicature at Bombay for recovering
commission due to him. The matter was referred to
arbitration and it resulted in an award in favour of the
plaintiff. A decree was passed in terms of the award and was
eventually incorporated in a decree of the High Court. In
execution proceedings, the judgment-debtor resisted it on
the ground that no part of the cause of action had arisen in
Bombay, and therefore, the High Court had no jurisdiction to
try the cause and that all proceedings following thereon were
wholly without jurisdiction and thus a nullity. Rejecting this
contention, a four-judge Bench of this Court held thus : (AIR
p. 201, para 4)
“4. The objection to its [Bombay High Court]
territorial jurisdiction is one which does not go to the
competence of the court and can, therefore, be waived. In
the instant case, when the plaintiff obtained the leave of
the Bombay High Court on the original side, under Clause
12 of the Letters Patent, the correctness of the procedure
or of the order granting the leave could be questioned by
the defendant or the objection could be waived by him.
When he agreed to refer the matter to arbitration through
court, he would be deemed to have waived his objection to
the territorial jurisdiction of the court, raised by him in
28
Neutral Citation No. ( 2024:HHC:11335 )
his written statement. It is well settled that the objection as
to the local jurisdiction of a court does not stand on the same
footing as an objection to the competence of a court to try a
case. The competence of a court to try a case goes to the very
root of the jurisdiction, and where it is lacking, it is a case of
inherent lack of jurisdiction. On the other hand, an objection
as to the local jurisdiction of a court can be waived and this
principle has been given a statutory recognition by
enactments like Section 21 of the Code of Civil Procedure.”
(emphasis supplied)
20. In Harshad Chiman Lal Modi v. DLF Universal Ltd. [Harshad
Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791], this
Court held that an objection to territorial and pecuniary
jurisdiction has to be taken at the earliest possible
opportunity. If it is not raised at the earliest, it cannot be
allowed to be taken at a subsequent stage. This Court held
thus: (SCC pp. 803-04, para 30)
“30. … The jurisdiction of a court may be classified into
several categories. The important categories are (i)
territorial or local jurisdiction; (ii) pecuniary jurisdiction;
and (iii) jurisdiction over the subject matter. So far as
territorial and pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be taken at the
earliest possible opportunity and in any case at or before
settlement of issues. The law is well settled on the point
that if such objection is not taken at the earliest, it cannot
be allowed to be taken at a subsequent stage. Jurisdiction
as to subject matter, however, is totally distinct and
stands on a different footing. Where a court has no
jurisdiction over the subject matter of the suit by reason
of any limitation imposed by statute, charter or
commission, it cannot take up the cause or matter. An
order passed by a court having no jurisdiction is a
nullity.”
21. In Hasham Abbas Sayyad v. Usman Abbas Sayyad [Hasham
Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355], a
two-judge Bench of this Court held thus : (SCC pp. 363-64,
para 24)
29
Neutral Citation No. ( 2024:HHC:11335 )
“24. We may, however, hasten to add that a distinction
must be made between a decree passed by a court which
has no territorial or pecuniary jurisdiction in the light of
Section 21 of the Code of Civil Procedure, and a decree
passed by a court having no jurisdiction in regard to the
subject-matter of the suit. Whereas in the former case,
the appellate court may not interfere with the decree
unless prejudice is shown, ordinarily the second category
of the cases would be interfered with.”
22. Similarly, in Mantoo Sarkar v. Oriental Insurance Co.
Ltd. [Mantoo Sarkar v. Oriental Insurance Co. Ltd., (2009) 2 SCC
244: (2009) 1 SCC (Civ) 482: (2009) 1 SCC (Cri) 738], a two-
Judge Bench of this Court held thus: (SCC p. 249, para 20)
“20. A distinction, however, must be made between a
jurisdiction with regard to the subject matter of the suit
and that of territorial and pecuniary jurisdiction. Whereas
in the case falling within the former category, the
judgment would be a nullity, in the latter it would not be.
It is not a case where the Tribunal had no jurisdiction in
relation to the subject matter of the claim … in our
opinion, the court should not have, in the absence of any
finding of sufferance of any prejudice on the part of the
first respondent, entertained the appeal.”
26. In the present case, no objection was taken, no issue was
framed and there is nothing on record to show that there is any
failure of justice; hence, the submission that the Court at Shimla
did not have jurisdiction cannot be accepted.
27. Even otherwise, the plea is not acceptable, the petitioner
stated in his proof affidavit (Ext. PW1/A) that respondent No.1 took
the minor to her parental home in Shimla. Respondent No.1 also
stated that she brought the minor to Shimla, therefore, the minor
30
Neutral Citation No. ( 2024:HHC:11335 )
was ordinarily residing at Shimla with respondent No.1. It was laid
down by this Court in Diwakar Dutt v. Kamlesh Kumari, 2021 SCC
OnLine HP 115 that the Courts at the place where the minor would
have resided but for his removal will have jurisdiction to hear and
entertain the petition for his custody. Speaking through one of us
(Mr Vivek Singh Thakur J), this Court observed:
“5. Provisions of Section 9 of the Act, relevant to the present
case, prescribing jurisdiction to entertain the application are
as under:–
“9(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”
6. Discussing the meaning and scope of the expression
“where the minor ordinarily resides”, the Supreme Court
in Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 SCC 479
has observed as under: —
“24. It is evident from a bare reading of the above that the
solitary test for determining the jurisdiction of the court
under Section 9 of the Act is the ‘ordinary residence’ of
the minor. The expression used is “Where the minor
ordinarily resides”. Now whether the minor is ordinarily
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, but 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.
25. The factual aspects relevant to the question of
jurisdiction are not admitted in the instant case. There are
serious disputes on those aspects to which we shall
presently refer.
31
Neutral Citation No. ( 2024:HHC:11335 )
26. We may before doing so examine the true purpose of
the expression ‘ordinarily resident’ appearing in Section
9(1) (supra). This expression has been used in different
contexts and statutes and has often come up for
interpretation. Since liberal interpretation is the first and
foremost rule of interpretation it would be useful to
understand the literal meaning of the two words that
comprise the expression. The word ‘ordinary’ has been
defined by the Black’s Law Dictionary as follows:
“Ordinary (Adj.): Regular; usual; normal; common;
often recurring; according to established order;
settled; customary; reasonable; not characterized by
peculiar or unusual circumstances; belonging to,
exercised by, or characteristic of, the normal or
average individual.”
The word ‘reside’ has been explained similarly as under:
“Reside: live, dwell, abide, sojourn, stay, remain,
lodge. (Western-Knapp Engineering Co. v. Gillbank,
C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a thing
in a place, to be stationed, to remain or stay, to dwell
permanently or continuously, to have a settled abode
for a time, to have one’s residence or domicile;
specifically, to be in residence, to have an abiding
place, to be present as an element, to inhere as quality,
to be vested as a right. (State ex rel. Bowden v. Jensen
Mo., 359 S.W. 2d 343, 349.)”
In Webster’s dictionary also the word ‘reside’ finds a
similar meaning, which may be gainfully extracted:
“1. To dwell for a considerable time; to make one’s
home; live.
2. To exist as an attribute or quality within.
3. To be vested: within”
28. In Annie Besent v. Narayaniah, AIR 1914 PC 41 the
infants had been residing in the district of Chingleput in
the Madras Presidency. They were given in custody of
Mrs. Annie Besant for the purpose of education and were
getting their education in England at the University of
32
Neutral Citation No. ( 2024:HHC:11335 )
Oxford. A case was, however, filed in the District Court of
Chingleput for custody where according to the plaintiff
the minors had permanently resided. Repeating the plea
that the Chingleput Court was competent to entertain the
application their Lordships of the Privy Council observed:
“…The district court in which the suit was instituted
had no jurisdiction over the infants except such
jurisdiction as was conferred by the Guardians and
Wards Act 1890. By the 9th Section of that Act the
jurisdiction of the court is confined to infants
ordinarily residing in the district. It is in their
Lordship’s opinion impossible to hold that the infants
who had months previously left India with a view to
being educated in England and going to university had
acquired their ordinary residence in the district of
Chingleput.”
In Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, this Court
was dealing with a case under Section 488 Cr.P.C. and the
question of jurisdiction of the Court to entertain a petition
for maintenance. The Court noticed a near unanimity of
opinion as to what is meant by the use of the word
“resides” appearing in the provision and held that
“resides” implied something more than a flying visit to,
or casual stay at a particular place. The legal position was
summed up in the following words: (AIR p. 1524, para 8)
“…….Having regard to the object sought to be achieved,
the meaning implicit in the words used, and the
construction placed by decided cases there on, we
would define the word “resides” thus: a person resides
in a place if he through choice makes it his abode
permanently or even temporarily; whether a person
has chosen to make a particular place his abode
depends upon the facts of each case…..”
20. In Kuldip Nayar v. Union of India Reported in (2006) 7
SCC 1, the expression “ordinary residence” as used in the
Representation of People Act, 1950 fell for interpretation.
This Court observed:
33
Neutral Citation No. ( 2024:HHC:11335 )
“243. Lexicon refers to Cicutti v. Suffolk County Council,
(1980) 3 All ER 689 to denote that the word
“ordinarily” is primarily directed not to duration but
to purpose. In this sense the question is not so much
where the person is to be found “ordinarily”, in the
sense of usually or habitually and with some degree of
continuity, but whether the quality of residence is
“ordinary” and general, rather than merely for some
special or limited purpose.
244. The words “ordinarily” and “resident” have been
used together in other statutory provisions as well and
as per Law Lexicon, they have been construed as not to
require that the person should be one who is always
resident or carries on business in the particular place.
245. The expression coined by joining the two words
has to be interpreted with reference to the point of
time requisite for the purposes of the provision, in the
case of Section 20 of the RP Act, 1950 it being the date
on which a person seeks to be registered as an elector
in a particular constituency.
246. Thus, residence is a concept that may also be
transitory. Even when qualified by the word
“ordinarily” the word “resident” would not result in a
construction having the effect of a requirement of the
person using a particular place for dwelling always or
on a permanent uninterrupted basis. Thus understood,
even the requirement of a person being “ordinarily
resident” at a particular place is incapable of ensuring
nexus between him and the place in question.”
31. Reference may be made to Bhagyalakshmi v. K.N.
Narayana Rao, AIR 1983 Mad 9, Aparna Banerjee v. Tapan
Banerjee, AIR 1986 P&H 113, Ram Sarup v. Chimman
Lal, AIR 1952 All 79, Smt. Vimle Devi v. Smt. Maya Devi, AIR
1981 Raj 211, and In re: Dr. Giovanni Marco Muzzu, AIR 1983
Bom 242, in which the High Courts have dealt with the
meaning and purport of the expressions like ‘ordinary
resident’ and ‘ordinarily resides’ and taken the view that
the question whether one is ordinarily residing at a given
34
Neutral Citation No. ( 2024:HHC:11335 )
place depends so much on the intention to make that
place ones ordinary abode.”
7. The Punjab and Haryana High Court in Ramesh Bhardwaj v.
Ram Saran Dass, reported in PLR (1998-3) 120 P&H 35 has
observed and held as under:
“8. ….It is true that the minor’s ordinary place or
residence necessarily may not be a place where his father
who is the natural guardian resides, as held by the Andhra
Pradesh in the case of Harihar Parshad Jaiswal (supra) and
the Saurashtra High Court in the case of Bai Shri Arun
Kumari (supra). In the case of Sarda Nayar (supra) decided
by a Division Bench of the Kerala High Court also, it was
observed that the place of ordinary residence of the minor
would be the place where the minor would have continued
to reside but for the recent removal of the minor to a
different place.
9. In the present case, as stated in the earlier part of the
judgment, the minor children were ordinarily residing in
Chandigarh till their mother died on 28 th June 1996 and
their father who is the natural guardian was arrested on
the basis of the FIR lodged by the petitioner. The said
minors were handed over to the petitioner during the
proceedings of Criminal Writ Petition No. 890 of 1996 as
the respondent who is the natural guardian was in
custody. The respondent immediately after his release,
filed Criminal Writ Petition No. 1706 of 1996 for the
custody of the minor children and after he was relegated
to civil remedy, he filed an application under Section 25 of
the Act. From these facts, it is clear that the minor
children would have continued to live in Chandigarh but
for the fact that they were handed over to the petitioner in
the facts and circumstances of the case. In view of these
facts, I am of the opinion that the Courts in Chandigarh
have jurisdiction to entertain and try the present
application filed by the respondent under Section 25 of
the Act.”
8. Madras High Court in Bhagyalakshmi v. K. Narayana Rao
reported in AIR 1983 Mad 9 has held as under: —
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Neutral Citation No. ( 2024:HHC:11335 )
“7….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 the purpose of the Act…….”
9. The Rajasthan High Court in Hariom Ram Pratap v. Sunil
reported in AIR 2011 Raj 138 has held: —
“9. It is not the place where the minor is presently
residing when an application seeking custody is filed
under Section 9 of the Act. which would be determinative
of deciding the jurisdiction of the Court under Section 9 of
the said Act, but it is factually as well as constructive
custody prior to arising of cause of action for claiming
such custody again, which could decide the jurisdiction of
the Court under Section 9 of the Act. Merely because in the
36
Neutral Citation No. ( 2024:HHC:11335 )circumstances that upon the death of the mother of the
child, the child was removed from the custody of the
father who is the natural guardian of the minor and was
taken away by the maternal grandfather and was
therefore, living away at different places at Gurgaon, that
would not take away the jurisdiction of the Court at
Nohar, where the father-natural guardian ordinarily
resides and prior to the death of mother of the child, the
child with his mother also used to live.
10. In these circumstances, in the present case after
having filed the application under Section 9 of the Act for
claiming custody of the child at Nohar, even though the
child was removed from the custody and was taken away
by a maternal grandfather to Gurgaon, Court at Nohar
cannot be said to be lacking jurisdiction in the matter and
therefore, the application under Order 11 Rule 7 CPC filed
by maternal grandfather was rightly rejected by learned
Court below.”
10. Even in Dr Vinay Samuel Arawattigi v. Principal Judge,
Family Court, Kanpur reported in AIR 2007 All 13, relied upon
by the Family Court for returning the petition, Allahabad
High Court has also observed:
“13. All these catenae of judgments, which have been
quoted above are clear and categorical that only said
District Court has jurisdiction to proceed with the matter
under the Guardians and Wards Act within whose
territorial jurisdiction the minor “ordinarily resides”. The
question as to whether said minor “ordinarily resides”
within the territorial jurisdiction of the aforementioned
District Court is essentially a question of fact. When the
issue is sought to be raised in this respect, then the
burden of proving that the minor “ordinarily resides”
within the territorial jurisdiction of the aforementioned
District Court lies with the applicant, who is moving an
application before the District Court and the Court will
have to decide this question on the basis of the evidence
adduced and the facts and circumstances of each case. The
court will have to see by way of evidence as to whether
pleadings, which have been set up qua forceful
37
Neutral Citation No. ( 2024:HHC:11335 )deprivation of custody are rightful pleadings or same has
been mentioned only for the purposes of conferring
jurisdiction. Jurisdiction cannot be permitted to be
usurped and the question ordinary place of residence of
the minor, when it is pleaded has been forcibly shifted has
to be decided on the basis of the evidence adduced and the
material available on the record qua the intention with
which minor has been removed, the period with whom
minor has been residing and all other relevant factors.
13-A…….Last residence, is not at all the relevant criteria
and consideration for conferring jurisdiction, for the
purposes of Section 9 of the Guardian and Wards Act and
to the contrary, the Court within whose jurisdiction the
minor ordinarily resides is the only relevant criteria for
conferment of jurisdiction. Pleadings qua ordinary place
of residence of minor at Kanpur is conspicuously missing
and to the contrary pleadings on its own suggest, that
minor is ordinarily residing at Miraj. In paragraph 8
respondent has admitted, that on the 2 nd birthday of
Simran, the Respondent went to Miraj and participated in
the same. Residence of a minor at Miraj has not at all been
disputed.”
11. After going through the judgment of Allahabad High
Court in Dr Vinay Samuel’s case, referred supra, it is apparent
that it was observed by said Court that in that case pleadings
qua ordinarily a place of residence of a minor at Kanpur was
conspicuously missing and to the contrary, pleadings on its
own were suggesting that minor was ordinarily residing at
Miraj, Whereas, in the present case, it has been specifically
pleaded in petition that minor was admitted in Modern
Public School at Sanjauli at the age of 3½ years and present,
he is a student of 5 th class in said school and petitioner and
respondent No. 1, wife of petitioner, were living with their
son at Sanjauli till June 2020 and it is only on 6 th June 2020
when respondent No. 1 ran away with respondent No. 2 and
also took minor son Lakshay along with her without
knowledge and consent of the petitioner.
12. I am in agreement with the principle propounded in
aforesaid judgments that to determine the place of ordinary
38
Neutral Citation No. ( 2024:HHC:11335 )
residence with reference to provisions of Section 9 of the Act,
the place of ordinary residence of the minor would be the
place where the minor would have continued to reside but for
recent removal of minor to a different place and the words
“ordinarily resides” would 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 and place of residence at the time of the filing of
a petition 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 moving the minors
from one place to another and consequently, from one
jurisdiction to another.
28. A similar view was taken in the judgments cited at the
bar and it is not necessary to refer them individually.
29. In the present case, when respondent No.1 left her
matrimonial home to her parental home, she intended to settle in
her parental home. Respondent No.1 also admitted that she was
residing with respondent No.2 in Shimla, where respondent No.2
was running a boutique. This admission also shows that the
intention of respondent No.1 was to settle in Shimla permanently.
Even if, she left for Mumbai and Lucknow in the interregnum does
not mean that the minor was ordinarily residing in Mumbai or
Lucknow where she did not have any intention to permanently
settle; hence, the Courts at Shimla will have jurisdiction to hear and
entertain the petition and the plea regarding the lack of territorial
jurisdiction cannot be accepted even on merits.
39
Neutral Citation No. ( 2024:HHC:11335 )
30. Respondent No.1 asserted that the petitioner and his
parents harassed her for dowry even though sufficient dowry was
provided to them. This is falsified by the statement of Kushal
Sharma (PW2) father of respondent No.1. He stated in his proof
affidavit (Ext. PW2/A) that the petitioner and his family members
never demanded dowry from respondent No. 1 to his knowledge.
Respondent No.1 was kept decently and everything was provided to
her. Respondent No.1 talked to him during her stay in her
matrimonial home and she never made any complaint regarding
any harassment. He denied in his cross-examination that he was
making a false statement at the instance of the petitioner.
31. He is the father of respondent No.1 and therefore the
best person to know about any demand of dowry or harassment of
respondent No. 1. There is nothing in his cross-examination to
show that he was making a false statement. Hence, the plea taken
by respondent No.1 that she was being harassed cannot be accepted
to be correct.
32. Respondent No.1 admitted in her cross-examination
that she resided with respondent No.2 in Mumbai voluntarily. She
had a love relationship with respondent No.2 before her marriage.
She was residing with respondent No.2 in a live-in relationship. She
40
Neutral Citation No. ( 2024:HHC:11335 )
admitted that one daughter was born to her and respondent No.2.
She also resided in Lucknow in the house of respondent No.2. The
minor also resided in Lucknow with her. The minor was not
studying in any school on the date of deposition. However, he was
admitted to a school in Lucknow. Minor was not studying in any
school after May 2022. He was not admitted to any school in Shimla
because of mid-session. Respondent No.2 was running a boutique
at Shimla but she did not have any proof of this fact. She admitted
that it takes a lot of money to admit a child to a good school. She
admitted that the petitioner has a handloom business. She admitted
that she does not have any source of income. She volunteered to say
that she was educated and could bear the expenses of the minor’s
education. She was residing with the family of respondent No.2.
The school of the minor is at a distance of 10 minutes from her
matrimonial home. She had not made any efforts to admit the
minor to any Government school. She volunteered to say that she
wanted to get the minor educated in a Convent School. She also
admitted that she was unable to bear the expenses of providing
education in a Convent School.
33. The statement of respondent No.1 clearly shows that she
was not working in any school on the date of the deposition. She
41
Neutral Citation No. ( 2024:HHC:11335 )
also admitted that the minor was not studying in any school and
that she was unable to provide expenses for educating him in a
Convent School. These admissions show that the welfare of the
minor is not with her as she had failed to provide any education to
the minor. She even did not get the child admitted to a government
school (where the education is free) on the pretext that the child
was to be provided education in a Convent school. When she does
not have any resources to get the child educated in a Convent
School, it is difficult to see how she can provide education to a
minor.
34. The petitioner is running a handloom business, which
fact was admitted by respondent No.1, therefore, he is in a position
to provide education to the minor. It was submitted on behalf of the
respondents that financial capacity is no guarantee of the welfare
of the minor. Reliance was placed upon the judgment of the Hon’ble
Supreme Court in Dhanwanti Joshi (supra), wherein it was observed:
22. We shall next consider the point which solely appealed to
the Family Court and the High Court in the present
proceedings namely that the respondent is financially well
off and can take care of the child better and give him a
superior education in the USA. Lindley, L.J. in McGrath
(infants), Re [(1893) 1 Ch 143: 62 LJ Ch 208] Ch at p. 148 stated
that:
42
Neutral Citation No. ( 2024:HHC:11335 )
“… the welfare of the child is not to be measured by
money alone nor by physical comfort only. The word
‘welfare’ must be taken in its widest sense. The moral
and religious welfare must be considered as well as its
physical well-being. Nor can the ties of affection be
disregarded.”
23. As to the “secondary” nature of material considerations,
Hardy Boys, J. of the New Zealand Court said
in Walker v. Walker & Harrison [1981 New Ze Recent Law 257]
(cited by British Law Commission, Working Paper No. 96,
para 6.10):
“Welfare is an all-encompassing word. It includes
material welfare, both in the sense of adequacy of
resources to provide a pleasant home and a
comfortable standard of living and in the sense of
adequacy of care to ensure that good health and due
personal pride are maintained. However, while material
considerations have their place they are secondary
matters. More important are the stability and the
security, the loving and understanding care and
guidance, the warm and compassionate relationships,
that are essential for the full development of the
child’s character, personality and talents.”
24. From the above, it is clear that the High Court in the case
before us was clearly in error in giving sole or more
importance to the superior financial capacity of the husband
as stated by him in his evidence. Assuming that his financial
capacity is superior to that of his wife, that in our opinion
cannot be the sole ground for disturbing the child from his
mother’s custody. As of today, the child is getting a good
education and is doing well in his studies. The proposal of an
immediate American education which the father is prepared
to finance cannot, in our opinion, be a sufficient ground for
shifting the child to the father’s custody, ignoring the fact
that for the last more than 12 years, the child has been in the
mother’s custody. There is also, no basis, having regard to
the oral evidence adduced by the parties, for holding that the
mother is permanently residing at Bombay leaving the child
43
Neutral Citation No. ( 2024:HHC:11335 )
at Pune. The appellant’s categorical evidence that whenever
she had to go to Bombay from Pune, her mother used to
come from Bombay to Pune to take care of the child, leaves
no doubt in our mind that the mother is residing mostly in
Pune and goes to Bombay occasionally for very short periods
in connection with certain official duties in her employment.
The appellant has also reiterated before us that she has been
residing in Pune and she has a flat there. As contended by
her, the child is a citizen of the USA by birth and he can go to
the USA in his own right in future, whenever it is so decided.
Further the evidence of the respondent and his brother that
in the event the child is allowed to go to the USA with the
respondent, the respondent’s brother and the latter’s wife
have agreed to proceed to the USA, leaving their three
daughters in India (of whom one has been married recently)
or anticipating the migration of their daughters, appears to
us to be too artificial and a make-believe affair rather than
real. It appears to us that the effort on the part of the
respondent here is only to impress the Court that the child
will have the company of these persons in case the child is
allowed to proceed to the USA. This evidence has not
appealed to us.”
35. It is apparent from the judgment that the minor was
undergoing proper education and the Hon’ble Supreme Court held
in these circumstances that mere financial capacity is not sufficient
to decide the custody of the minor. In the present case, when the
minor is not undergoing education in any school and respondent
No.1 is unable to manage resources for the education of the child in
a good school, the cited judgment does not apply to the present
case.
44
Neutral Citation No. ( 2024:HHC:11335 )
36. It was laid down by the Hon’ble Supreme Court in Smriti
Madan Kansagra (supra)that while determining the custody of the
minor child, the paramount consideration is the welfare of the child
and not the rights of the parents. It was observed:
“Discussion and Analysis
15. We have carefully considered and deliberated upon the
oral and written submissions made by Mr Shyam Divan,
Senior Advocate, instructed by Mr P. Banerjee and Ms Nidhi
Mohan Parashar on behalf of the appellant; and the
submissions made by Mr Anunaya Mehta, Advocate
instructed by Ms Inderjeet Saroop, Advocate representing
the respondent. The issue which has arisen for our
consideration is as to what should be the dispensation to be
followed with respect to the custody of the minor child,
Aditya who is now 11 years of age, till he attains the age of
majority in 7 years time.”
15.1. It is a well-settled principle of law that the courts while
exercising parens patriae jurisdiction would be guided by the
sole and paramount consideration of what would best
subserve the interest and welfare of the child, to which all
other considerations must yield. The welfare and benefit of
the minor child would remain the dominant consideration
throughout. The courts must not allow the determination to
be clouded by the inter se disputes between the parties, and
the allegations and counter-allegations made against each
other with respect to their matrimonial life. In Rosy
Jacob v. Jacob A. Chakramakkal [Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840] this Court held that : (SCC p.
855, para 15)
“15. … The children are not mere chattels: nor are they
mere playthings for their parents. The absolute right of
parents over the destinies and the lives of their children
has, in the modern changed social conditions, yielded to
the considerations of their welfare as human beings so
45
Neutral Citation No. ( 2024:HHC:11335 )
that they may grow up in a normal balanced manner to be
useful members of the society….” (emphasis supplied)
15.2. A three-judge Bench of this Court in V. Ravi Chandran
(2) v. Union of India [V. Ravi Chandran (2) v. Union of India,
(2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] opined : (SCC p. 194,
para 27)
“27. … It was also held that whenever a question arises
before a court pertaining to the custody of a minor
child, the matter is to be decided not on considerations of
the legal rights of the parties, but on the sole and
predominant criterion of what would serve the best
interest of the minor.” (emphasis supplied)
15.3. Section 13 of the Hindu Minority and Guardianship Act,
1956 provides that the welfare of the minor must be of
paramount consideration while deciding custody disputes.
Section 13 provides as under:
“13. Welfare of minors to be the paramount
consideration.–(1) In the appointment or declaration
of any person as guardian of a Hindu minor by a court,
the welfare of the minor shall be the paramount
consideration.
(2) No person shall be entitled to guardianship by
virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus if
the court is of the opinion that his or her guardianship
will not be for the welfare of the minor.”
15.4. This Court in Gaurav Nagpal v. Sumedha Nagpal [Gaurav
Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ)
1] held that the term “welfare” used in Section 13 must be
construed in a manner to give it the widest interpretation.
The moral and ethical welfare of the child must weigh with
the court, as much as the physical well-being. This was
reiterated in Vivek Singh v. Romani Singh [Vivek
Singh v. Romani Singh, (2017) 3 SCC 231 : (2017) 2 SCC (Civ) 1],
wherein it was opined that the “welfare” of the child
46
Neutral Citation No. ( 2024:HHC:11335 )
comprehends an environment which would be most
conducive for the optimal growth and development of the
personality of the child.
15.5. To decide the issue of the best interest of the child, the
Court would take into consideration various factors, such as
the age of the child; nationality of the child; whether the
child is of an intelligible age and capable of making an
intelligent preference; the environment and living
conditions available for the holistic growth and development
of the child; financial resources of either of the parents
which would also be a relevant criterion, although not the
sole determinative factor; and future prospects of the child.
15.6. This Court in Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413] set out the
principles governing the custody of minor children in para
52 as follows : (SCC p. 428)
“Principles governing custody of minor children
52. In our judgment, the law relating to custody of a
child is fairly well settled and it is this: in deciding a
difficult and complex question as to the custody of a
minor, a court of law should keep in mind the relevant
statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal
provisions. It is a human problem and is required to be
solved with human touch. A court while dealing with
custody cases, is neither bound by statutes nor by
strict rules of evidence or procedure nor by precedents.
In selecting the proper guardian of a minor, the
paramount consideration should be the welfare and
well-being of the child. In selecting a guardian, the
court is exercising parens patriae jurisdiction and is
expected, nay bound, to give due weight to a child’s
ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings.
But over and above physical comforts, moral and
ethical values cannot be ignored. They are equally, or
we may say even more important, essential and
47
Neutral Citation No. ( 2024:HHC:11335 )
indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment,
the court must consider such preference as well,
though the final decision should rest with the court as
to what is conducive to the welfare of the minor.”
(emphasis in original)
15.7. Section 17 of the Guardians and Wards Act, 1890
provides:
“17. Matters to be considered by the Court in appointing
guardian.–(1) In appointing or declaring the guardian
of a minor, the Court shall, subject to the provisions of
this section, be guided by what, consistently with the
law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the
minor, the Court shall have regard to the age, sex and
religion of the minor, the character and capacity of the
proposed guardian and his nearness of kin to the
minor, the wishes, if any, of a deceased parent, and
any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
(4) [Omitted]
(5) The Court shall not appoint or declare any person
to be a guardian against his will.” (emphasis supplied)15.8. In the present case, the issue of custody of Aditya has to
be based on an overall consideration of the holistic growth of
the child, which has to be determined on the basis of his
preferences as mandated by Section 17(3), the best
educational opportunities which would be available to him,
adaptation to the culture of the country of which he is a
national, and where he is likely to spend his adult life,
learning the local language of that country, exposure to
other cultures which would be beneficial for him in his future
life.
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Neutral Citation No. ( 2024:HHC:11335 )
37. In the present case, the minor is not being provided with
any education, which is the basic requirement in modern-day
society. Therefore, the learned Trial Court erred in holding that the
welfare of the minor was with his mother. When the mother was
not providing any education and she was not in a position to
manage resources to provide sufficient education, it cannot be said
that the welfare of the minor was with the mother.
38. It is admitted that respondent No.1 has been residing
with respondent No.2 in a live-in relationship without any
marriage. One child was born to them. It was laid down by Manipur
High Court in Jaswant Kaur (supra) that where the mother was
residing with another person without any marriage, the minor
could not be permitted to reside with her as it would constitute a
bad influence upon the minor. It was observed:
“We have also to keep in mind the parentage and the religion
of the minor, as pointed out in the Privy Council decision
cited above. We have to see whether the custody of the father
or the mother will be better to have the minor properly
brought up and educated in proper surroundings, keeping in
mind his parentage and his religion. It is clear that as he was
born to Sikh parents, he has to be brought up like any other
Sikh child. It is in evidence that the Sikh community in
Imphal have made arrangements for educating their
children. There can be no doubt that it will be better for a
child belonging to the Sikh community to be brought up in
their traditions.
49
Neutral Citation No. ( 2024:HHC:11335 )
Jaswant Kaur in her evidence even denied that her husband
Chanan Singh belonged to the Sikh religion. This one piece of
evidence is sufficient for the Court to decide that the child
cannot be left in her custody. At present this child lives in the
midst of the Manipur community whose customs and
manners and religion are quite different from those of the
Sikh community. According, to the Sikhs, the hair of their
children cannot be cut. But the hair of this child has been cut
because he lives in the midst of Manipuri children whose hair
is cut. Again, he attends a School, where the necessary
coaching for children of the Sikh community is not given.
However, much we may wish that all these distinctions of
caste and community, religion and customs should change in
this country, the Court has to take note of the fact that such
distinctions still persist in this country and so long as such
distinctions are there, the children of the different
communities and religions have got to be brought up in the
environments suitable to such communities and religions.
More than all this, it is not at all desirable that the child
should be brought up by the mother who has refused most
unjustifiably to join her husband and is openly living with a
divorced young person belonging to another community.
I may state here that when it was brought out from the
evidence of D.W.2 on 20-2-1960 that the wife of Chinglen
Singh had been divorced before Jaswant Kaur came to live
with Chinglen Singh, the very next witness Chinglen Singh as
D.W.3 stated on 27-2-1960 that his wife had returned to his
house the previous day. Thus, an attempt was made to
camouflage the fact that Chinglen Singh and Jaswant Kaur
were living in the same house as man and wife. It is certainly
against the interest and welfare of the minor child that he
should stay with a mother of that kind. The stigma will be
attached to the minor throughout his life and the Court
cannot permit it.”
39. In the given facts and circumstances of the case, we feel
that continuation of custody of minor with his mother shall have an
adverse impact on his social life, psychology, personality
50
Neutral Citation No. ( 2024:HHC:11335 )
development and future. It shall also be against the mandate of
Section 6 and 13 of Hindu Minority and Guardianship Act, 1956.
40. The learned Trial Court was influenced by the post
graduation of respondent No.1 in Computer Sciences to grant
minor’s custody to her but ignored that she was not utilizing her
education to generate any income; hence, her qualification is not
relevant to determine the question of custody.
41. No other point was urged.
42. Thus, the learned Trial Court erred in holding that the
welfare of the minor is with respondent No.1. and not with the
petitioner. Hence, the judgment passed by the learned Trial Court
cannot be sustained.
43. In view of the above, the present petition is allowed and
the custody of the minor is ordered to be handed over to the
petitioner. Respondent No.1 will have visitation rights on the minor
and she will be entitled to interact with the minor by video
conferencing and visit the minor during his vacations. Learned
Trial Court will be free to modify the visitation rights on the
application of the parties.
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Neutral Citation No. ( 2024:HHC:11335 )
44. The present petition stands disposed of and so are the
miscellaneous application(s), if any. Record of learned Trial Court
be returned forthwith.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
14th November, 2024
(saurav pathania)