MANISH SEHGAL vs. MEENU SEHGAL

* IN THE HIGH COURT OF DELHI AT NEW DELHI

th
% Judgment Pronounced on: 26 July, 2013

+ C.R.P. No.40/2013

MANISH SEHGAL ..... Petitioner
Through: Mrs. Geeta Luthra, Sr. Adv. with
Mr. Vikas Tomar and Mr. Saman
Yadav, Advocates

versus

MEENU SEHGAL ..... Respondent
Through: Mr. Bharat Arora, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The respondent herein filed a petition under Sections 7 and 17 of
the Guardians and Wards Act, 1890 read with Sections 6 and 13 of the
Hindu Minority and Guardianship Act, 1890, seeking custody of the
minor daughters namely, Ms. Sara Sehgal and Ms. Sana Sehgal. The
respondent also filed an application alongwith for the interim custody of
children during Diwali holidays.
2. After receiving the summons, petitioner appeared and apprised the
Court about the facts of the case and further as provided under Section 9
of Hindu Minority and Guardianship Act, 1890 filed an application under
Order 7 Rule 11 CPC seeking rejection of the petition due to lack of
territorial jurisdiction.
th
3. The petitioner also on 9 January, 2013 filed a petition under
Section 25 of Guardianship and Wards Act, read with Section 7(1)(a) of
the Family Court, before the Principal Judge, Family Court, Lucknow.
4. It is contended by the petitioner that since the children are residing
C.R.P. No.40/2013 Page 1 of 8


in Lucknow where they are attending school presently, the said petition
for their custody ought to have been filed at Lucknow and not Delhi. The
case of the respondent is that the permanent place of residence of the
minor children is Delhi being the place where there is matrimonial home
of the respondent as well as that of the parents of the petitioner. Both the
parental home and maternal home are in Delhi. Even otherwise petitioner
being an army personnel gets transferred from one place to another and
Delhi is the permanent residence of the petitioner as well as the
respondent and both the children so the Delhi court has jurisdiction to
decide the petition filed by her.

5. It is also argued by the respondent that around April 2012, it was
decided between the Petitioner and the respondent that the respondent
with the kids would settle in Delhi and so they got them admitted to ASN
School, Delhi. After marriage, the couple were residing in Delhi.
However, there were frequent transfers of the petitioner to Secundarabad,
Jodhpur, Assam, Alwar and Lucknow and because of the frequent
transfers, the schools were getting changed frequently and daughters
could not settle. Keeping this in mind, it was decided that Respondent
alongwith the daughters would settle in Delhi. The salary account of the
petitioner is in Delhi in ICICI Bank in Kalkaji and also bank lockers in
State Bank of Bikaner and Jaipur, Kalkaji and the permanent address
given for correspondence is also of Delhi. The present address of the
Petitioner keeps on changing whereas the permanent address remains in
Delhi. It is contended that the petitioner had filed a divorce petition on
false and frivolous grounds in Lucknow in which also he mentioned his
permanent address as 4/15, Kalkaji, New Delhi-19.
6. The findings of the learned court below are that the admission on
the part of the petitioner that the kids have been residing in Lucknow
from June, 2012 after being brought there by the Respondent shows that
C.R.P. No.40/2013 Page 2 of 8


Lucknow is not the ordinary place of residence and is not the place where
the minor children ordinarily reside. It is also admitted by the petitioner
that his job is transferable and in such circumstances, every place where
he is posted cannot be said to be place of ordinary residence. The
respondent cannot be expected to be running after the Petitioner with her
petition for guardianship wherever he is transferred and to file the petition
in that jurisdiction. A mere enrolling of minor children in Lucknow
school for 4 months will not confer the jurisdiction of the Lucknow court.
7. The fact that the petitioner is serving in Indian Military and has a
transferable job is admitted by the learned Senior counsel for the
petitioner. In the application under Order 7 Rule 11 CPC the petitioner
admits that it was only in June, 2012 that the respondent brought the
children from Delhi to Lucknow after the petitioner was posted at
Lucknow.
8. It is not disputed that the marriage between the parties took place
in Delhi, he was transferred to Delhi at some point of time and the
children had earlier studied in Delhi. It is further not disputed by the
learned senior counsel of the petitioner that the respondent i.e. his
wife/the mother of the children as well as his parents (grandparents of the
children) are residing in Delhi.
9. In fact the permanent address of the petitioner in the divorce
petition filed by the petitioner in Lucknow as well as in his employment
records has been given as Delhi. The said divorce petition has now been
transferred within the jurisdiction of this Court by the order passed by the
th
Supreme Court on 27 May, 2013 in Transfer Petition (Civil) No. 163 of
2013 filed by the respondent.
10. The question before this court is what would be the ordinary place
of residence of a minor to decide the jurisdiction of the court for the
purpose of the custody within the meaning of Section 9 of the Guardians
C.R.P. No.40/2013 Page 3 of 8


and Wards Act, 1890 which reads as under :
“Section 9 - Court having jurisdiction to entertain application-

(1) If the application is with respect to the guardianship of
the person of the minor, it shall be made to the District Court
having jurisdiction in the place where the minor ordinarily resides.

(2) If the application is with respect to the guardianship of the
property of the minor, it may be made either to the District Court
having jurisdiction in the place where the minor ordinarily resides,
or to a District Court having jurisdiction in a place where he has
property.

(3) If an application with respect to the guardianship of the
property of a minor is made to a District Court other than
that having jurisdiction in the place where the minor ordinarily
resides, the Court may return the application if in its opinion the
application would be disposed of more justly or conveniently by
any other District Court having jurisdiction.”

11. The term “resides” has been discussed on a number of occasions
by various courts and it has been held that the word “resides” means
something more than a stay. The expression “ordinarily resides” should
be given its natural meaning, so as to advance the intention of the
legislature. The word “ordinarily resides” are identical and do not have
the same meaning as “residence at the time of application”. It is to be
seen in the larger canvass where the children are ordinarily residing and
not where they are temporarily put up.
(i) In Vinayak Rao and Ors Vs. Smt. Shweta Jadhav, II (1996) DMC
374 , it was observed that “A perusal of Section 9(1) of the Act
makes it apparent that it is the ordinary place of residence of
minor which determines the jurisdiction of the Court for
entertaining an application for guardianship of the minor. Such
jurisdiction cannot be taken away by temporary residence
elsewhere on the date of presentation of the petition. The fact that
the minor is found actually residing at a place when the
application for the guardianship of minor is made does not
determine the jurisdiction of the Court. There can again be no
C.R.P. No.40/2013 Page 4 of 8

where one intends to settle down. However, the question that arises is
whether the minor children, like that in the present case, would be in a
position to form an “intention” considering their age. In such a scenario,
the residence of the minor is generally linked with that of the parents. As
the petitioner has been posted in different cities at different times for
work and has not intended to settle down in any of those cities, and the
fact that the respondent and the petitioner had decided to settle down in
Delhi, their ordinary place of residence is to be considered.
13. The following decisions are necessary to be referred to in order to
discuss the issue involved in the present case:

C.R.P. No.40/2013 Page 5 of 8


cannot be said to reside at any other place where he had gone on a
casual or temporary visit, e.g. for health or business or for a change.

(ii) In Bhagwan Dass & Anr. Vs. Kamal Abrol & Ors., AIR 2005 SC
2583, the Supreme Court observed that it is apparent that the word
'residence' is generally understood as referring to a person in
connection with the place where he lives, and may be defined as one
who resides in a place or one who dwells in a place for a
considerable period of time as distinguished from one who merely
works in a certain locality or comes casually for a visit and the place
of work or the place of casual visit are different from the place of
'residence'.
(iii) In Rabindra Sharan Vaish Vs. Kusum Agrawal , 1987 (1) Cur.
Civ. Cases 397 (M.P.) , the father was residing at Bhopal. The
mother removed the child permanently to Lucknow forsaking her
matrimonial home. It was held that Lucknow is the place where the
minor ordinarily resides. Accordingly, it was held that Lucknow
Courts and not the Bhopal Courts would have jurisdiction to
entertain the dispute with regard to guardianship of the minor.
Reference may be made to the decision given by the Madras High
Court reported as R. Geetha Vs. A.T. Rajan , I (1991) DM C 139 .
As to what meaning is to be given to the words "ordinarily resided
" would be found elaborated in para 5 and this reads as under :
“5. The words "ordinarily resides" cannot, 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 moving the
minor from place to place and consequently from one
jurisdiction to another. Whether the minor was ordinarily
residing in any particular place has to be primarily decided on
the facts of the particular case. It may be that ordinarily the
paternal family house may be taken to be the place of ordinary
residence, but 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 and
the absence of animus revertendi would normally be relevant,
but in the case of minors, it is difficult to impute any such
C.R.P. No.40/2013 Page 6 of 8


intention to them. It has also to be borne in mind that the
temporary residence or residences by compulsion however
long cannot be treated as ordinary residences at that place.
Bearing these in mind, it is necessary to ascertain from the
available materials as to when the minor ordinarily resided for
purposes of the Act.”
14. It is alleged by the petitioner that the daughters were admitted in
th
Lucknow school on 26 April, 2013. Thereafter, they were again
th
admitted in ASN School, Delhi on 4 May, 2013 where they studied for
th
only 5-6 days since from 15 May, 2013 the summer vacations had
th
started. They were again brought to Lucknow on 19 June, 2013 and
since then they are residing in Lucknow.
15. For the purpose of application under Order 7 Rule 11 CPC, it is
established law that the court has to only see the plaint i.e. bare plaint
alongwith document filed alongwith plaint. In the present case, the
respondent as invoked the territorial jurisdiction before the Guardianship
Judge, Saket Court, Delhi, in para XX of the petition which reads as
under:
“XX. That this Hon’ble Court has jurisdiction as the minors are
ordinarily resident of Delhi. Both the parental home and maternal
home is in Delhi and the Respondent being an army personnel is
being transferred from one place to another and Delhi is the
Permanent Residence. Also the paramount concern of this Hon’ble
Court is to provide and look after the welfare and interest of the
children, who are currently not being cared and provided for by the
Respondent. The children are being physically and verbally abused
by the respondent and it is for this Hon’ble Court to provide them
the protection against such abuse otherwise the children would be
ruined for life”

16. It is settled law that 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. The
moving of minors from one place to another and consequently from one
C.R.P. No.40/2013 Page 7 of 8


jurisdiction to another does not help the party who raises the plea of
jurisdiction. The main question i.e. whether the minors were ordinarily
residing in any particular place has to be primarily decided on the facts of
the particular case.
17. In view of the abovesaid facts and circumstances as explained
earlier, I am of the view that the impugned order cannot be interfered
with. In view of facts stated in the petition, it is clear that the place where
the children have gone to study cannot be presumed to be place of their
ordinary residence. The children were residents of Delhi and were
studying in Delhi prior to starting of matrimonial dispute. The removal
of children by either side to Lucknow cannot be established permanent
home of the children. Further, the divorce petition filed by the petitioner
at Lucknow has been ordered to be transferred from Lucknow to Family
Courts at Saket, Delhi by the Supreme Court in the respondent’s Transfer
th
Petition No.163/2013 decided on 27 May, 2013 as Divorce Petition
No.2501/2012.
18. In view of the above, the revision petition is hereby dismissed. No
costs.

(MANMOHAN SINGH)
JUDGE
JULY 26, 2013
C.R.P. No.40/2013 Page 8 of 8