Andhra Pradesh High Court – Amravati
Konduru Swetha vs Sirasanambeti Varun Krishna on 17 April, 2025
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE K.SURESH REDDY
CIVIL REVISION PETITION No. 607 OF 2025
ORDER:
By this civil revision petition under Article 227 of the Constitution
of India, the petitioner-wife has prayed for setting aside the order dated
19-02-2025 in I.A.No. 8 of 2025 in F.C.O.P.No. 268 of 2023 on the file of
the Court of learned Judge, Family Court – cum – V Additional District
Judge, Tirupati (for short, ‘the trial Court’).
2. Heard Sri T.V.Jaggi Reddy, learned counsel appearing for the
petitioner-wife, and Sri N.Pavan Kumar, learned counsel appearing for
the respondent-husband.
3. The marriage between the petitioner-wife and the respondent-
husband was solemnized on 06-12-2015 in D.P.R. Kalyanamandapam
at Tirupati as per Hindu rites and customs prevailing in their community.
They were blessed with a male child, namely Vihan Reddy, on
09-03-2017. After some time, disputes arose between the petitioner-
wife and the respondent-husband. The petitioner-wife initially filed
F.C.O.P.No. 256 of 2022 on the file of the trial Court against the
respondent-husband under Section 13 (1) (ia) of the Hindu Marriage
Act, 1955, seeking dissolution of their marriage by granting decree of
divorce. The respondent-husband contested the said O.P. During
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pendency of F.C.O.P.No. 256 of 2022, the respondent-husband filed
I.A.No. 1327 of 2022 for being granted visitation rights to visit and
interact with his son. After hearing both sides, the trial Court by order
dated 24-11-2023 granted visitation rights to the respondent-husband to
visit and interact with his son for a period of three hours on every third
Sunday starting from 10 a.m. to 1 p.m. Aggrieved thereby, the
petitioner-wife moved this Court by way of Civil Revision Petition No.
3305 of 2023. This Court by order dated 23-02-2024 disposed of the
Civil Revision Petition, without modifying or setting aside the order
under revision, directing the trial Court to complete the trial in the matter
and dispose of F.C.O.P.No. 256 of 2022 within three months from the
date of receipt of a copy of the order. After elaborate trial, the trial Court
dismissed F.C.O.P.No. 256 of 2022 by order dated 04-09-2024. Feeling
aggrieved, the petitioner-wife preferred appeal in F.C.A.No. 113 of 2024
before this Court and the same is pending.
While things stand thus, the respondent-husband filed
F.C.O.P.No. 268 of 2023 on the file of the trial Court against the
petitioner-wife under Sections 7 and 9 of the Guardians and Wards Act,
1890 (for short, ‘1890 Act’) and Section 7 of Family Courts Act seeking a
direction to the petitioner-wife to handover custody of his minor son
Vihan Reddy and the same is pending. During pendency of the above
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O.P., the petitioner-wife filed I.A.No. 8 of 2025 under Order XIV Rule 2
(2) (a) of the Code of Civil Procedure seeking to frame a preliminary
issue with regard to maintainability of the petition on the point of
jurisdiction. After hearing both sides, the trial Court has dismissed the
above interlocutory application by the order under revision.
4. Sri T.V.Jaggi Reddy, learned counsel appearing for the petitioner-
wife, would contend that as the minor child is residing at Bengaluru, the
Court at Tirupati has no jurisdiction to try the O.P. as per the provisions
of Section 9 (1) of 1890 Act and therefore the respondent-husband has
to file the O.P. at Bengaluru where the minor child is residing. In
support of his contention, learned counsel places reliance on the
judgment of a Division Bench of this Court in Atheesh Sanka Vs.
Sanka (Mamidi) Lakshmi Renuka1.
5. Per contra, Sri N.Pavan Kumar, learned counsel appearing for the
respondent-husband, would contend that question of jurisdiction is a
mixed question of fact and law and therefore the same cannot be tried
as a preliminary issue. In support of his contention, learned counsel
1
(2023) 4 ALT 465
4
places reliance on the judgment of the Hon’ble Apex Court in Ruchi
Majoo Vs. Sanjeev Majoo2.
6. Section 9 of 1890 Act makes a specific provision as regards the
jurisdiction of the Court to entertain a claim for grant of custody of a
minor. While sub-section (1) of Section 9 identifies the Court competent
to pass an order for the custody of the person of the minor, sub-sections
(2) and (3) thereof deal with Courts that can be approached for
guardianship of the property owned by the minor. Section 9 (1) alone is,
therefore, relevant for the purpose of the present case. It says:
“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.”
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 1890 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,
2
(2011) 6 SCC 479
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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.
7. In the judgment relied upon by learned counsel appearing for the
petitioner-wife, the minor child was born in United States of America and
the child is a citizen of United States of America and that even before
filing the O.P., it was a fact that both parties approached Circuit Court
for the Country of Kent Family Division, State of Michigan, United States
of America, on 08-03-2019 for grant of divorce. The facts in the case on
hand are entirely different from the facts of the judgment relied upon by
learned counsel appearing for the petitioner-wife. As question of
jurisdiction is a mixed question of fact and law, as held by the Hon’ble
Apex Court in Ruchi Majoo (2nd supra), the same cannot be tried as a
preliminary issue. This Court does not find any jurisdictional error
committed by the trial Court and the order under revision does not
warrant any interference by this Court.
8. Accordingly, the civil revision petition is dismissed at the
admission stage confirming the order dated 19-02-2025 in I.A.No. 8 of
2025 in F.C.O.P.No. 268 of 2023 on the file of the Court of learned
Judge, Family Court – cum – V Additional District Judge, Tirupati.
However, the trial Court is directed to dispose of F.C.O.P.No. 268 of
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2023 as expeditiously as possible and in any event not later than six
months from the date of receipt of a copy of this order. Both parties are
directed to cooperate for early disposal of the O.P. Pending
miscellaneous applications, if any, shall stand dismissed in
consequence.
________________________
Date: 17-04-2025, JUSTICE K.SURESH REDDY
JSK
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HON'BLE SRI JUSTICE K.SURESH REDDY
CIVIL REVISION PETITION No. 607 OF 2025
DATE: 17TH APRIL, 2025
JSK
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