Custody Application Of Minor Can Only Be Filed Before Court Having Jurisdiction Where Child Ordinarily Resides: Karnataka High Court

The Karnataka High Court recently held that an application seeking custody of a minor child has to be filed only before a court where the minor child ordinarily resides.

A single judge bench of Justice M Nagaprasanna allowed the petition filed by the grandparents Samiulla Saheb and another of the minor child and set aside the order of the trial court rejecting their application filed under Order VII Rule, 10 a/w Section 151 of the Code of Civil Procedure, seeking to return the plaint filed by the father of the minor child.

The court said “Section 9 permits filing of an application in the Court having jurisdiction of the place in which the minor ordinarily resides. Therefore, the law itself directs that the application for guardianship of a minor should be filed before the Court where the minor child resides, only that Court is conferred with jurisdiction.”

It added, “It is trite law that a Court without jurisdiction, even if it has travelled up to the stage of reserving the matter for its judgment, would be a proceeding which is a nullity in law, as no amount of consent or acquiescence, of the parties, would confer jurisdiction on any Court, which does not have such jurisdiction.”

The trial court had rejected the application filed by the grandparents holding that Section 9 of the Act is not applicable to the fact situation the case has travelled up to the stage of cross-examination and the petitioners have not filed their written statement to the main petition.

The counsel for the petitioners argued that the child is a resident at Yelandur, Chamarajnagar District staying with grandparents/petitioners herein. The respondent (father) is a resident of Mysuru. Thus where the child resides would be the jurisdiction of the Court and not where the relatives or the father or the mother would reside.

The respondent Mohammed Sameer contended that merely because the child is in the custody of the petitioners, after the death of their daughter, would not clothe jurisdiction to the Court at Mysuru. He would further contend that the application is filed by the defendants, which would not be maintainable in terms of Order VII Rule 10 of the CPC.

The bench on going through the records said “ The application so rejected, is on the face of it, contrary to law.”

Referring to Section 9 of the Act it said “It is admitted that the petitioners and the minor child are residing at Yelandur which comes within the jurisdiction of Chamarajnagar District. It is again the settled principle of law that it is not where the father or mother resides that would confer jurisdiction, but it is where the child resides.”

Relying on a judgement of the Kerala High Court it said “In terms of Section 20 of the Code of Civil Procedure, a suit can be instituted at a place where the cause of action arises be it in part or in full, but when it comes to special enactments which have overriding effect on any other general law, the special enactment would prevail.”

Court rejected the contention of the respondent that an application under Order VII Rule 10 of the CPC could not have been maintained. It said “The question of jurisdiction cuts at the root of the matter, and if the Court has no jurisdiction territorial or otherwise, to entertain a plaint, it cannot. Who brings up the issue before the concerned Court is immaterial, as Order VII Rule 10 of the CPC nowhere indicates that it is only to be filed by the plaintiff and not the defendant. What is brought to the notice of the Court qua jurisdiction is what is important and not who brings it.”

It added “Defendant also has a right to file an application seeking return of the plaint under Order VII Rule 10 of the CPC, for want of jurisdiction of a particular Court, to try the suit. The submission that it is the right of the plaintiff only, stands repelled.”

Accordingly, it allowed the petition and directed that I.A.VII filed by the petitioners under Order VII Rule 10 r/w Section 151 of the CPC is allowed. The petition/plaint is directed to be returned, for it to be filed before the Court having appropriate jurisdiction – where the child is residing.

Appearance: Advocate Mohammed Tahir for Petitioners.

Advocate H.A.Purushothama Prasanna for Respondent.

Citation No: 2024 LiveLaw (Kar) 224

Case Title: Samiulla Saheb & ANR AND Mohammed Sameer

Case No: WRIT PETITION No.6789 OF 2023

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