Case Note & Summary
The petitioners, Samiulla Saheb and Mubeen Taj, are the parents-in-law of the respondent, Mohammed Sameer. The respondent married the petitioners' daughter, and a child was born from the wedlock. The daughter died on 16-05-2021, after which the minor child remained in the custody of the petitioners (grandparents). The respondent filed a guardianship and custody petition (G & W.C. No.49/2021) before the III Additional Principal Family Judge at Mysuru on 21-12-2021, seeking custody of the child. The petitioners filed an application under Order VII Rule 10 read with Section 151 of the Code of Civil Procedure, 1908, seeking return of the plaint on the ground that the Family Court at Mysuru lacked territorial jurisdiction because the minor child resided with them in Chamarajanagara district. The Family Court rejected the application on 03-02-2023, holding that the court had jurisdiction as the respondent (father) resided in Mysuru. The petitioners challenged this order before the High Court of Karnataka under Articles 226 and 227 of the Constitution of India. The High Court examined the provisions of Section 7 of the Family Courts Act, 1984, and Section 9 of the Guardians and Wards Act, 1890, which confer jurisdiction based on the residence of the minor. The court noted that the minor child was residing with the grandparents in Chamarajanagara district, not with the father in Mysuru. Therefore, the Family Court at Mysuru had no territorial jurisdiction. The High Court allowed the writ petition, set aside the impugned order, and directed the Family Court to return the plaint to the respondent for presentation before the appropriate court having jurisdiction.
Headnote
A) Family Law - Territorial Jurisdiction - Child Custody - Section 7 of Family Courts Act, 1984 and Section 9 of Guardians and Wards Act, 1890 - The court held that jurisdiction for guardianship and custody proceedings is determined by the residence of the minor, not the petitioner. Since the minor child resided with the grandparents in Chamarajanagara district, the Family Court at Mysuru lacked jurisdiction. The impugned order rejecting the application for return of plaint was set aside. (Paras 1-10)
Issue of Consideration
Whether the Family Court at Mysuru has territorial jurisdiction to entertain a guardianship and custody petition when the minor child resides with the grandparents in Chamarajanagara district.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 03-02-2023, and directed the Family Court at Mysuru to return the plaint to the respondent for presentation before the appropriate court having jurisdiction.
Law Points
- Territorial jurisdiction
- Child custody
- Return of plaint
- Order VII Rule 10 CPC
- Family Courts Act 1984 Section 7
- Guardians and Wards Act 1890 Section 9
Case Details
2024 LawText (KAR) (04) 47
Writ Petition No.6789 of 2023 (GM-FC)
Sri. Mohammed Tahir for petitioners, Sri. H.A. Purushothama Prasanna for respondent
Samiulla Saheb and Mubeen Taj
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Nature of Litigation
Writ petition challenging order rejecting application for return of plaint in guardianship and custody proceedings.
Remedy Sought
Petitioners sought setting aside of the impugned order dated 03-02-2023 passed by the III Additional Principal Family Judge, Mysuru, and direction to return the plaint for presentation before appropriate court.
Filing Reason
Petitioners contended that the Family Court at Mysuru lacked territorial jurisdiction as the minor child resided with them in Chamarajanagara district.
Previous Decisions
The Family Court rejected the application for return of plaint on 03-02-2023, holding that it had jurisdiction as the respondent (father) resided in Mysuru.
Issues
Whether the Family Court at Mysuru has territorial jurisdiction to entertain the guardianship and custody petition when the minor child resides with the grandparents in Chamarajanagara district.
Submissions/Arguments
Petitioners argued that under Section 9 of the Guardians and Wards Act, 1890, jurisdiction is determined by the residence of the minor, not the petitioner. Since the minor resided with them in Chamarajanagara, the Mysuru court lacked jurisdiction.
Respondent argued that the Family Court at Mysuru had jurisdiction as the respondent (father) resided in Mysuru and the petition was filed there.
Ratio Decidendi
The jurisdiction for guardianship and custody proceedings under Section 9 of the Guardians and Wards Act, 1890, read with Section 7 of the Family Courts Act, 1984, is determined by the residence of the minor, not the residence of the petitioner. Since the minor child resided with the grandparents in Chamarajanagara district, the Family Court at Mysuru lacked territorial jurisdiction.
Judgment Excerpts
The petitioners are, defendants in G & W.C.No.49 of 2021, they are before this Court calling in question an order dated 03-02-2023 passed by the III Additional Principal Family Judge, Mysuru rejecting the application filed by the petitioners under Order VII Rule 10 r/w Section 151 of the Code of Civil Procedure seeking return of the plaint to be presented before an appropriate Court.
Procedural History
The respondent filed G & W.C. No.49/2021 before the III Additional Principal Family Judge, Mysuru on 21-12-2021 seeking custody of the minor child. The petitioners filed an application under Order VII Rule 10 CPC for return of plaint. The Family Court rejected the application on 03-02-2023. The petitioners challenged this order by filing Writ Petition No.6789/2023 before the High Court of Karnataka, which was allowed on 22-04-2024.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 10, Section 151
- Family Courts Act, 1984: Section 7
- Guardians and Wards Act, 1890: Section 9
- Constitution of India: Articles 226, 227
